Volume 44 — New York Reports

The facts of the case are as follows : On the the 4th day of March, 1834, the defendant, Abraham Fleet, being the owner in fee of certain lands in the county of Queens, executed a deed of trust between himself of the first part, and James H. Hackett, Sarah Van Lew and Warren Cornwall of the other part, wherein, in consideration of the love he bore his wife, Martha E. Fleet, and his reputed son, John K. Fleet, then about four years old, and of $100, he conveyed the lands in…

The action is to recover for the maintenance of a pauper, alleged to have been improperly removed' from Herkimer county, with the intent that he should become chargeable in Oortland, or some other county. At the trial, the plaintiff proved the declarations of one Stimpson, who was superintendent of the poor of Herkimer county; that the pauper was removed from Herkimer at the expense of that county, with a view of getting rid of him.

Ann Hunt, the respondent, and Thomas A. Johnson, and the other executors of Alvah Hunt, deceased, and Hath aniel Hunt, who has since deceased, united in a written statement of facts, and submitted their controversy to the General Term of the Supreme Court, pursuant to section 372 of the Code of Procedure.

The cause was- first tried in 1862, when the complaint was dismissed. The plaintiff appealed, and the General Term ordered a new trial. (Reported 39 Barb., 22Y.) On the second trial, the plaintiff recovered judgment, which was affirmed, and the defendant appealed to this court. On the 21st day of November, 1852, William H. Chesley held a contract for the purchase of a lot of land in the city of Brooklyn, from one Beach.

In February, 1859, the defendants, Allen and Stevens, executed and delivered to the Home Insurance Company a mortgage, the object of which, as expressed in it, was to secure to that company the payment of the sum of $4,000 and interest on the 1st day of January following. The company advanced upon it $2,000, and no more.

The action was brought to recover of a surviving partner the sum of $300 and interest alleged to have been loaned to the firm, on an application made therefor by a member of the firm since deceased. The facts sufficiently appear in the opinions delivered.

<p>A complaint -which alleges a joint agreement by the defendants to deliver up specified securities, demand therefor, and that the defendants wrongfully refused to deliver them, and have wrongfully disposed of and converted them to their own use, to the great damage of the plaintiff, and praying judgment for the value of the securities, with interest, as the damages sustained by the plaintiff by means of the premises, states a cause of action on contract and not ex delietu.</p> <p>The allegation of a wrongful refusal by the defendants to deliver the securities and a wrongful disposition and conversion thereof, by them, to their own use, must be construed as an averment of a breach of the agreement and not as the gist of the action.</p> <p>If judgment is recovered thereon against a defendant who was not served with process, he may be proceeded against, as one “jointly indebted upon a contract,” under section 375 of the Code.</p>

On the 24th of August, 1860, J. S. & W. Brown, of the city of Yew York, executed an agreement with the plaintiff to sell him 100,000 pounds of hops, as follows: “ In consideration of the sum of one dollar, the receipt of which is hereby acknowledged, we have sold this day to Mr. John F. Dustan, of this city, 100,000 pounds of first sort western or eastern hops, as we may select; growth of 1860; deliverable in the city of Yew York, at our option, during the months of October…

, referee. This action was commenced in the Supreme Court, the place of trial being the city and county of New York. The issues joined therein were referred, and on the trial thereof the following facts appeared, viz.: Prior to the 25th day of March, 1858, the plaintiffs became the owners of the Canandaigua and Hiagara Falls railroad.

The judgment below was entered upon the report of Hon. Platt Potter, referee, in favor of the defendants, , dismissing the complaint with costs. The General Term, upon appeal, affirmed the judgment. The action was brought by the plaintiffs, as assignees of a written instrument, signed by the defendants, of which the following is a copy, viz.: “ $2,000.

Artemas B. Waldo, referee. This was an action for freight on the transportation of a quantity of barley by the plaintiff on a canal boat of which he was master, from St. Johns, in Canada, to New York. The following facts were found by the referee before whom the action was tried, viz.: In October, 1862, the plaintiff was engaged in running a canal boat as master thereof, from St. Johns, in Canada, to New York city.

The defendants demurred to the complaint in this action, on the ground that -it did -not state facts -sufficient -to constitute a cause of action. The complaint shows that on the 23d -day of May, -1862, the plaintiffs commenced an action in the Supreme Court against Smith M. Coope and-Fisher, and on that day Justice Barnard duly granted an order for the arrest of the defendants therein and holding them to bail in the sum of $500.

The action was brought to recover the value of a stock of merchandise, and certain cows, lumber, and saw logs, belonging to the plaintiffs, as assignees of Simon J. Lusk, for the benefit of his creditors.

This action is for the recovery of damages sustained by the plaintiff, by the falling of a bridge over a stream in the town of Florida, in the county of Montgomery, which was alleged to be in an unsafe condition through the neglect of the defendants, who were commissioners of highways of that town, whereby the horses, wagon and harness of the plaintiff were injured.

Parmenter, Esq., sole referee. The facts are sufficiently stated in the opinion of Lott, Chief Commissioner. The case below is reported in 44 Barbour, 547. cited Hamilton College v Stewart (1 Comst., 581); Brigdewater Academy v. Gilbert (2 Pick., 579); Barnes v. Perine (12 N. Y., 18); Wilson v. Baptist Ed. Soc.

<p>Delivery of a bill of lading, with intent to pass the title, has that effect, although the bill is drawn to order and is not indorsed.</p> <p>G. shipped wheat as owner and consignee, to his own order, and received from the masters of the vessels bills of lading. He delivered these bills to the plaintiff as security for moneys advanced on his own drafts, drawn upon E,, indorsing the several bills, “ deliver to E. on payment of the accompanying draft.” E. refused to accept the drafts and they were protested, When the wheat was shipped, G. delivered to the masters duplicates of the bills of lading, except that they were'signed by G., and not by the master, and these were delivered, with the wheat, to the defendant's lessee at its warehouse. G., through his agents, who had knowledge of the dishonor of the drafts, sold all of the grain to different purchasers, who paid value therefor. A portion was delivered to these purchasers, when the plaintiff demanded of the defendant the balance remaining in its warehouse, and delivery thereof was refused.—Seld, that the title to the wheat was in the plaintiff, and he could maintain replevin therefor.</p>

This action was commenced in the Common Pleas of the city of New York, and was tried before a referee, who decided in favor of the plaintiffs. It was to recover a balance claimed to be due upon a building contract. The plaintiffs, who were carpenters and builders, entered into a contract with the defendant in May, 1860, to build for him three brick stores in the city of New York, to be completed on or before the first day of September then next.

On the 17th of March, 1864, the defendant issued to the plaintiff a policy of insurance, insuring $25,000 upon the body, tackle and apparatus, and other furniture of the steamship (propeller) called the Mile, from 16th April, 1864, to the 16th of December in the same year, the defendant taking upon itself the perils of the lakes, rivers, canals, fires and seasons that should come to the vessel and property insured, or any part thereof, excepting misfortunes arising from…

In September, 1858, the plaintiff, being the owner of two parcels of real estate in the city of Buffalo, executed a deed of conveyance thereof to the defendant, which deed contained covenants of seizin and common warranty. The defendant on the same day executed to the plaintiff his bonds and two mortgages of distinct portions of the premises so conveyed, each reciting that it was given to secure a portion of the purchase-money.

In September, 1862, the plaintiff commenced an action in the Superior Court of Yew York against Plin White, and upon an affidavit, obtained from one of the judges of that ■court an order of arrest, directed to the sheriff of the city and -county of Yew York, requiring him to arrest White and hold ‘him to bail in the sum of $7,000. The defendant, as sheriff, received the order of arrest, and by virtue thereof arrested White, but did not take from him any bail or deposit.

Justice Foster, without a jury. In March, 1863, the defendants were doing business in the city of New York as wholesale merchants of teas and sugars, etc. Their traveling agent on the 19th of that… Held: according to the defendants’ supposition, under their policy of goods sold and not delivered. Two days following, and on the 23d of the same month, the plaintiff transmitted to the defendants his note at four months from the 21st of March, 1863.

. The plaintiff became the guest of the defendants, at their hotel in the city of New York, on the evening of the 20th of April, 1863. Soon after his arrival he delivered to the servant of the defendants, who apparently had charge at the office, a sealed envelope containing §20,000, which the plaintiff requested the servant to deposit in a safe kept by the defendants at the office for the safe keeping of money, jewels and valuables belonging to their guests.

The case helow is reported in 45 Barb., 407. The action was brought for the foreclosure of a mortgage, and for other special relief substantially adjudged, as hereinafter stated.

<p>Owners of merchandise insured against perils of the seas, “free of particular average only,” are entitled to recover as for a total loss, although ■ some portion of the goods may be brought into port in specie, if the right to abandon is exercised during the continuance of the peril-and-there is a total loss of value to the owner. Total physical loss is not necessary.</p>

This is an action to recover several penalties for violations of the fifteenth section of the excise law of 1857. The plaintiff recovered a verdict for seventy dollars.

In the spring of 1858, Constant Cook, Jotham Clark, Trumbull. Carey and the defendant owned certain claims against the Madison and Indianapolis Railroad Company. The defendant was about to go west that spring to settle his own share of the claim, and applied to Cook, Carey and Clark to take charge of the settlement of their interests in the same matter, and received from each of them power to do so. Each of the parties was to pay one-fourth of the expenses.

<p>Appeal from an order of the General Term of the Supreme Court in the third district, affirming a judgment in favor of the plaintiff, rendered in an action to set aside the sale of certain real estate of Joseph Ellis, deceased, made by order of the surrogate of Ulster county, upon the application of David Ellis, the executor of said Joseph, for the payment of debts. The cause was tried at the Ulster circuit on the 21st day of January, 1863, by the court, without a jury. The facts found by the court and the conclusions of law are substantially as follows : That the will of Joseph Ellis, deceased, was duly admitted to probate by the surrogate of the county of Ulster, and letters testamentary issued thereon to David Ellis. On the 1st day of October, 1861, an order was made establishing the debts at $276.23, and a further order, made upon the same day, authorizing the executor, David Ellis, to sell for the non-payment of debts. On the 25th day of November, the defendant, Brown, officiating as auctioneer, struck the premises off to himself for the sum of $615. After the auction, and before presentation of the report to the surrogate and confirmation of such sale by the surrogate, and before the payment of the purchase-money and delivery of the deed to Brown, an arrangement was made by and between Brown and Ellis, the executor, by which Ellis became equally interested with Brown in the purchase. On the 10th day of December the defendant, Ellis, presented his report of sale to the surrogate, whereby he reported that the property had been sold to James H. Brown for the sum of $615 ; that fifteen per cent had been paid down, and the balance was to be paid upon the delivery of the deed. On the same day the surrogate made an order confirming the sale, and directing a conveyance to the purchaser. On the 14th day of December, Ellis, as executor, executed a deed to Brown of the premises, for the consideration therein expressed of $615. On.the same day, Brown, by deed, conveyed the one equal undivided half part of the premises to Ellis, for the consideration, as therein expressed, of $307.50. Both deeds were acknowledged on the same day, and before the same officer. On the 10th day of January, 1862, the defendants, Ellis and Brown, with their wives, in consideration of $600, conveyed by quitclaim to the defendant, Sarah Jane, wife of David Berrian, about five acres of the premises. On the 22d day of January the defendants, Brown and Ellis, with their wives, for the consideration of $400,"sold and conveyed to Hannah Deyo another portion of the premises. The remainder of the premises, about thirty-three acres, is still in the hands of Brown and Ellis. The defendants have realized, in money and securities, upon the aforesaid sales, and also from the proceeds of wood, timber and hoop-poles, about the sum of $900. From the foregoing facts, the judge found the following conclusion: That the plaintiff, Deborah Ann Terwilliger, is entitled to the one undivided seventh part of the property whereof Joseph Ellis died seized. That the-sale and conveyance by Ellis, the executor, to Brown, and the conveyance by Brown to Ellis of the undivided half part of the premises, are both fraudulent and void as against the plaintiff, Deborah Ann Terwilliger, and the devisees of the said Joseph Ellis, deceased. That as to so much of the real estate of Joseph Ellis, deceased, as was not conveyed to Hannah Deyo and Sarah Jane Berrian, the plaintiff is entitled to the one undivided seventh part thereof, in fee, in the same manner and to the same extent as if such executor’s deed had never been executed. That the defendants, Brown and Ellis, shall account for and pay over to the plaintiff the one-seventh part of the proceeds of the sale of the real estate, and of the wood and poles cut thereon. Judgment having been entered in conformity with this decision, the defendant, Brown, appealed to the General Term of the Supreme Court, and the judgment having there been affirmed, he appealed to this court.</p> <p>urged that the order of the surrogate was conclusive in this action. (Jackson v. Robinson, 4 Wend., 436; Jackson v. Crawford, 12 Wend., 533; Atkins v. Kinnan, 20 Wend., 242; Dabke v. McLaren, 41 Barb., 491; Sipperly v. Baucus, 24 N. Y., 46.) That the appellant did not become interested in the purchase, within the statute, having no interest at the time of the auction; that the plaintiff is estopped hy knowledge of the purchase and making no objection, and by having received the benefit of the purchase-money applied in discharge of debts; and that it was error to give to the plaintiff one full seventh without provision for the protection of the defendants as to moneys paid to creditors. (Wakeman v. Green, 4 Paige, 23; Ames v. Blunt, 5 Paige, 13; Averill v. Loucks, 6 Barb., 471; Butler v. Stoddard, 7 Paige, 163.)</p> <p>insisted, among other things, that the sale was not complete until conveyance. (Jacob’s Law Dic., Title Sale; Webster’s Dic.; 13 Wend., 470.) $fo trustee can sell to himself, directly, or indirectly (Boerum v. Schenck, 2 Hand., 132), and Brown was, as to this sale, a mere sub-agent. (Willard’s Eq., 322; Moore v. Moore, 5 N. Y., 256.) The trustee was bound to account for the proceeds. (2 Story Eq., §§ 1261-5.) Hone of these questions were raised before the surrogate, and his order does not assume to pass upon the objection urged in this suit.</p>

• The action was brought for the delivery of personal property, on which the plaintiff had a chattel mortgage, executed by William H. Cheney; the defendant, as sheriff of Monroe county, having seized it upon an execution against Cheney.

<p>The legal title to lands, conveyed (in 1827) to A and his heirs, in trust to pay the rents and profits to B for life, and on her death to convey to the hens of B, descended to A’s heirs, upon his dying (in 1832) before B, notwithstanding the provisions of the Revised Statutes (part 11, chap. 1, title 2, § 68) for the vesting of such trusts in the Court of Chancery; and a conveyance by A’s heirs, after the death of B, is a proper execution of the trust. Section 11, title 5, of that chapter, limits the application of the statute to trusts thereafter created, except for the purpose of converting formal trusts into legal estates.</p> <p>Nor does the statute (§ 47, art. 11) vest the legal estate in the eestuis gue trust, for the trust is not merely nominal, but is connected with the power of management' and disposition. (§ 48.)</p> <p>The Court of Chancery had power, both before and since the Revised Statutes, to, compel infant trustees to convey, in such manner as the interests of the eestuis gue trust might demand, and the statutory provision (§ 65, art. 11) forbidding any conveyance in contravention of the trust, is a restriction upon the trustee, and not a limitation of the powers of the court.</p> <p>Authority for the care and protection of equitable estates of infants is inherent in the court, independently of any statutory provisions; the power conferred by statute relating only to lands of which the infant is seized, and not. to equitable interests.</p> <p>Proceedings having been had in the Court of Chancery during the minority of the appellant (one of the plaintiffs in this action), by which the trust estate was sold arid a portion of the proceeds invested in other real estate, giving to her the same equitable interest therein as in the lands so sold, the appellant having accepted her proportion of the avalla of a partition sale of such lastly acquired lands, after service Of the respondent’s answer in this action, settling up such sale of the trust estate and investment of proceeds in the lands so partitioned, is estopped from claiming her proportion of the trust estate, as against a purchaser thereof. And this is so, although the appellant is a feme covert, since acting as a feme sole in the management of her separate estate and the conduct of this action, she is bound by her acts and all lawful inferences to be drawn from them.</p>

The plaintiffs delivered to the defendant, for transmission to their brokers, the following message: “ If we have any Old Southern on hand sell same before board. Buy five Hudson at board. Quote price. RITTEHHOUSE, FAHT & Co.” By an error in transmitting, the message, as received by the plaintiffs’ agent, read “five hundred” instead of “five Hudson,” and the brokers purchased as for the plaintiffs 500 shares of Michigan Southern railroad stock.

This is an action to recover damages for charging the plaintiff, in May, 1864, with poisoning his own daughter to death; and in August of the same year with being a robber, a murderer and a thief. The defendant interposed a general denial. The action was tried at the Delaware circuit in February, 1866.

Appeal taken in January, 1868, from an order of the General Term of the Supreme Court, in the fifth judicial district, affirming an order made at Special Term, vacating and setting aside an attachment issued in this action, on the 22d day of March, 186J, by one of the justices of the Supreme Court, under the Code, on the ground that the defendants had assigned, disposed of and secreted, or were about to assign, dispose of and secrete, their property with intent to defraud…

On the 15th July, 1853, the defendant, on the application of George E. Howell, on behalf of the plaintiff (his wife), insured his life for one year in the sum of $5,000, for the benefit of the plaintiff and his'children, the policy being issued to the plaintiff in behalf of herself and children.

The complaint alleged that on or about the 13th day of October, 1862, at the city of New York, De Forrest & Palmer sold and delivered to the defendant 3,844 bushels beans in barrels and bags at $2.25 per bushel, and thirteen bags at forty cents each, amounting together to the sum of $8,655.35, upon which the defendant paid at sundry times $8,000, leaving $655.35 and interest from October 18th, 1862, which balance the firm of which the plaintiff is the survivor purchased and…

The cause, was tried at the Monroe Circuit by the court and a jury. This was an action of trespass against the defendant for taking a quantity of goods from a store in the city of Rochester. The plaintiff is the wife of Maurice A. Savage. The defendant justified the taking as a constable and by virtue of executions and judgments against the husband, claiming that the property belonged to him.

The action was brought by the respondent, as assignee of Hamilton Ward and Mary Ward, his wife, to recover from the appellant, as a common carrier, the value of certain personal baggage.

<p>An unpaid assessment, for street improvements (in the city of Brooklyn), against one who was the owner at the time the proceedings were commenced, is, prima facie, valid and a lien, although such assessments are required to be made “ to the owner or occupant” and a change of ownership occurred, but of which the assessors had no noticé, prior to confirmation of the assessment.</p> <p>A defendant, in an action to recover damages for negligence in the performance of his contract (to search for taxes and assessments), who would avail himself of the fact that the plaintiff is protected from loss, or has ample redress against another person (by covenants against incumbrances in the plaintiff’s deed), assumes the burden of proving that a remedy exists, which is available to the plaintiff, and to which he should resort.</p> <p>The plaintiff, intending to purchase certain real estate in the city of Brooklyn, employed the defendant to search for taxes and assessments upon the premises. The defendant afterwards delivered to him two returns, one being a search for taxes, certified by the defendant, and the other a search for assessments, certified by a third person, not employed by the plaintiff, and received the usual fees for both searches, with an additional sum for expediting them. The plaintiff completed his purchase, on the faith of these returns, receiving a deed containing a covenant against assessments and incumbrances. An assessment upon the property, for street improvements, not disclosed by the search, was afterward discovered and paid by the plaintiff. It was in the name of one who owned the property when the proceedings were commenced, but not the owner when the assessment was confirmed or the search was made. There was no evidence that the commissioners were notified of the change of ownership, nor was there any evidence as to the responsibility of the plaintiff’s grantor.—Held, that the evidence authorized the jury in finding the defendant responsible for negligence in the search for assessments; that the assessment paid by the plaintiff was valid and a lien at the time it was paid; and that the covenants in the plaintiff’s deed furnished no defence, the burden being on the defendant to show, and he having failed to show, that they had preserved, or were available to preserve, the plaintiff from damage or loss.</p>

97. The action was brought in the Superior Court of the city of New York, by the plaintiffs, for the recovery of damages from the defendants, who were the proprietors of the “ Ham-den’s Express,” for the non-fulfillment, according to the allegations of the complaint, of their agreement made on the first day of December, 1855, to forward, as common carriers, three boxes of merchandise by the steamship “ Ocean Bird,” from the city of New York to New Orleans, and there deliver…

The material facts are as follows: On the 27th day of January, 1862, the plaintiffs sold to the defendants certain goods, to the amount of about $8,600.

This was an action of replevin, brought to recover feed, flour, grain, &e., belonging to the plaintiff and levied on in November, 1861, by execution against the husband of the plaintiff. Upon the first trial the plaintiff was nonsuited. A new trial was granted by the General Term (reported 44 Barb., 374), upon which a verdict was rendered for the plaintiff, and judgment entered thereupon was affirmed by the General Term. The defendant appealed to the Court of Appeals.

This is an action by the plaintiff, as assignee of J. B. & W. W. Cornell, to recover of the defendants, who were co-partners living at Savannah, in the State of Georgia, for a balance due upon a bill of iron work and cut stone, claimed to have been furnished to the defendants in 1857. The articles were furnished for a building which the defendants were then erecting in Savannah, upon the order of their architect, Charles Shall.

<p>Appeal from ad order of the General Term of the Supreme Court, Id the fourth district, reversing a judgment for the plaiutiff aud grautiug a uew trial.This actiou was for the recovery of the possessiou of certaiu premises, claimed by the plaintiffs in fee, situate in the county of Schenectady, described in the complaint as “ the mill seat situate and being on the south-easterly side of ■the Schoharie creek or river, and immediately above and near to the bridge as it is now (May 25, 1863) standing over said ■creek or river, and abutting on and connecting the turnpike road leading from Albany to Cherry Valley;” into which the plaintiffs alleged the defendant had entered and unlawfully withheld it from them. The answer, besides putting in issue -each allegation in the complaint, alleged that neither the plaintiff, nor his ancestor, predecessor or grantor, was seized or possessed of the premises within twenty years before the ■ commencement of this action nor within twenty years before .the alleged cause of action arose.</p> <p>The issue thus joined was tried at a circuit court, on the 18th day of October, 1864, before the judge, without a jury, a trial by jury having been waived.</p> <p>On the trial, it appeared that, on the 24th day of May, 1804, William ISTorth, and Mary his wife, daughter of the late Hon. James Duane, in consideration of the rents and covenants specified and reserved, granted and devised to Thomas Thornton, “ in his actual tenure now being, the privilege and right of erecting one saw mill and one grist mill on the mill seat situate and being on the south-easterly side of Schoharie creek or river, and immediately above and near to the bridge,” as it was then standing “ over the said creek or river, and abutting on and connecting the turnpike road leading from Albany to Cherry Valley; and also the privilege of erecting and to erect a dam from the south-easterly side or bank of said creek or river across the same (so far as the right of North and wife extends), for the purpose of flowing the waters of said creek or river for the use of said grist and saw mill, and for the use of such mills as might be erected thereafter by North and wife, their heirs or assigns, below the bridge; and also the privilege of taking, using and enjoying so much of the land adjoining the said mill seat as should be absolutely necessary to and for the accommodation of the said grist and saw mill, restricting and Hiding Thornton, his heirs and assigns, to the land contained withi/n one chain in breadth; the same having been heretofore reserved by the Hon. James Duane aforesaidto have and to hold the said mill seat, mills to be erected thereon, land and dam forever; upon condition that Thornton, his heirs, executors, administrators and assigns, should pay therefor to their grantors, their heirs, executors, administrators and assigns, $100, in half-yearly payments, payable on the 24th day of May and November in each year, and upon condition that Thornton, his heirs and assigns, should at all times keep the said dam in such repair as to allow the water of said creek or river to pass by or through his mills at all times, in such manner and quantity as might be necessary for the purposes of the mill or mills to be erected below the bridge by his grantors, their heirs and assigns. The grant contained a provision for re-entry, if the rent should at any time remain unpaid for forty days, or any other of Thornton’s covenants should be violated.</p> <p>Thornton entered into possession under this grant, occupied the premises and erected mills thereon, and died in 1813. He was succeeded by one Tiffany, and the latter by John S. Brown, who, in 1838, granted and conveyed the premises in question (subject to the rents and conditions contained in the grant from North and wife to Thornton), by a warranty deed, in usual form, to Henry M. Brown and his heirs, which deed was duly recorded in 1838. Henry 11. Brown succeeded John S. Brown in the possession, and, on the 14th day of April, 1859, conveyed the premises in question (subject to the same covenants) to the defendant, his heirs and assigns. In 1821 Delia North became seized of all the estate, property and rights of William North and wife, in the premises in question, and was, in 1828, married to the plaintiff, Henry Saunders. The defendant and his predecessors, under whom he claims, paid the rents reserved up to May, 1863. On the 25th May, 1863, the plaintiffs served upon him a notice in writing, dated May 20th, 1863, that his term would expire on the 24th May, 1863, and that they thereby required the defendant to remove from the premises' in one month after service of that notice. The defendant moved to dismiss the complaint upon the following" grounds:</p> <p>1st. That the deed to Thornton was a conveyance in .fee.</p> <p>2d. That the plaintiffs seek to recover certain lands which they describe as the “ mill seatthe deed to Thornton did not convey the mill seat; Thornton was the owner of the mill seat before, and admitted to be the owner on the face of the deed. The deed to Thornton merely granted and demised the privilege and right of erecting and to erect mills, etc., on the mill seat “ in his actual tenure now being,” and of erecting dams above, and using adjoining premises for mill purposes ; the thing granted was an easement merely, to the grantee as the previous owner of the mill seat, by the grantors as owners of adjoining premises, and being a mere easement it was not necessary to use the word heirs to convey an inheritance, for the reason that an easement would descend as an appurtenant.</p> <p>3d. The plaintiffs have treated the deed to Thornton as a conveyance in fee, and are concluded to deny it.</p> <p>4th. The defendant has acquired an estate in fee by adverse possession. He and those through whom he claims have been in possession, claiming to own in fee, for more than sixty years.</p> <p>The court denied the motion overruling each point. To these rulings the defendant excepted. The court then stated separately the facts found, but did not, in the facts found, state whether or not, the defendant and those under whom he claimed had been in possession, claiming to own in fee, for more than sixty years, but found all other facts in the case substantially as above stated. It was also found that the defendant was in possession when the notice to remove was served and when this action was commenced and that the value of the use of the premises from May 24, 1863, was $230. As a conclusion of law, it was held and decided that the conveyance and lease from William iforth and wife to Thomas Thornton, was a lease and conveyance of the real property therein described, for and during the life of Thornton only ; that the plaintiffs were entitled to recover of the defendant the possession of said real estate described in the complaint, with $230 for the use and occupation thereof, and costs. Judgment was ordered accordingly. The defendant excepted to the finding that Thornton had only a life estate in the premises in question, and that the defendant was not, and that the plaintiffs were the owners of the property. Judgment having been entered as ordered, the defendant appealed to the General Term, where the judgment was reversed and a new trial ordered, and the plaintiffs appealed to the Court of Appeals.</p> <p>cited Goodtitle ex dem. Paul v. Paul (2 Burr., 1089); Osborn v. Marquand (1 Sand., 457); Sisson v. Barrett (2 N. Y., 406); 6 Greenl., 436; 15 Maine, 218; 6 Cow., 677; 1 Saund., 321; 4 Kent’s Com., 4 etc.; Hill & Denio, Supp., 93; 4 Kent’s 5, 6; Co. Litt., 42; Co. Litt., § 1; 2 Black Com., 298, et seq.; Bouvier Law Dic. Title Deed; 6 Hill, 352; Craig v. Wells (11 N. Y., 320); Jewett, Ch. J., in French v. Carhart (1 N. Y., 102); Brewer v. Irish (12 How., 481); Johnson v. Whitlock (13 N. Y., 344); Hunt v. Bloomer (3 Kern., 344); Newell v. Doty (33 N. Y., 83) ; 2 Keyes, 21; S. C., 31; 32 N. Y., 427; 10 Bosw., 148; 6 N. Y., 233; 11 N. Y., 416.</p> <p>cited McKinnon v. Bliss (21 N. Y., 206); Hoak v. Long (10 Serg. & Rawle, 9); Dominy v. Miller (33 Barb., 389); 1 Platt on Leases, 657; Taylor’s Land, and Ten., §§ 55, 56; Livingston v. Tanner (14 N. Y., 64); Torrey v. Torrey (id., 430); Bradley v. Covel (4 Com., 349); Philips v. Covert (1 John, 4, note a); Mann v. Lovejoy (1 Ryan Mo., 355); Doe v. Bell (5 Term. R., 163); Doe v. Spence (6 East, 133); Roe v. Ward (1 H. Bl. R., 97); 4 Kent, 112; Jackson v. Bryan (1 John. R., 325, 326); Bradley v. Covel (4 Cow., 350); Jackson v. Salmon (4 Wen., 327); Leighton v. Thud (1 Ld. Raymond, 707); Bright v. Darby (1 Term. R., 159); Doe v. Donovan (2 Campb., 78); Kemp v. Barrett (3 id., 510); Goodtitle v. Bailey (2 Cowper, 597); Jackson v. Blodget (16 John., 178); Jackson v. Waltermire (7 Cow., 383); Hathaway v. Power (6 Hill, 453); 4 Cruise Dig., 26; 4 Kent, 468; 2 Bl. Com., 298; 2 Platt on Leases, 47, 48; 4 Cruise Dig., p. 290, § 73; 2 Platt on Leases, p. 480; French v. Carhart (1 N. Y., 102); Livingston v. Ten Broeck (16 John., 23); Welee v. Hornby (7 East, 199); King v. Osborn (4 East, 327); Doe v. Ries (8 Bing., 178); Jackson v. Harrison (7 Cow., 323.)</p>

The action was brought to recover damages for the alleged burning, by the defendant, of the plaintiff’s dwelling-house, situated in the village of Hempstead, in Queens county, on the 23d day of October, 1863. The defendant, on that day, was running a dummy engine on the Hempstead branch track, that track being the property of the defendant and connecting with its main road. The track runs over Main street in a northerly direction from Hempstead village.

The complaint alleged, among other things, that on the 9th of May, 1863, one Hicks purchased of the plaintiff, for cash, 168 barrels of flour, at seven dollars and eighty-five cents per barrel ; that such purchase was made fraudulently, and with the intention on the part of Hicks not to pay therefor, and that Hicks deposited the flour in the warehouse of J. Y. Spader, in the city of New York; that Hicks was indebted to the defendant at the time in the sum of $800, for money…

■Appeal from an order of the Supreme Court, at General Term in the seventh district, reversing an order of the County Court of Monroe county, denying a motion on the part of the defendant to set aside the docket of a judgment in the county clerk’s office, upon a transcript from a justice’s judgment, and the execution and subsequent proceedings thereon, and granting the motion so denied by the County Court.

<p>Although the grantee, in a deed containing covenants of warranty and for quiet enjoyment, becomes himself the purchaser on the foreclosure of a prior mortgage, and then sells his bid to a third person and surrenders possession upon such third person receiving a deed from the officer making the sale, such foreclosure sale is an eviction.</p> <p>If such deed is the sole consideration of a bond given by the grantee therein, the eviction is a complete defence to any recovery upon the bond.</p> <p>An assignee of the bond, with notice, is in no better.position than the original obligee.</p> <p>Questions calling for the undisclosed intention or object of a party are immaterial and properly excluded.</p>

The action was upon the following draft: “ Three months after date, pay to the order of J. E. Robinson, cashier, five hundred dollars, value received, and charge same to the account of ££S. WATSON, Oramel. “ To O. F. Hall, Rochester, N. T. “ Accepted, payable at the Commercial Bank of Rochester. “ C. F. HALL.” The action was brought to trial at the Allegany Circuit; and the following is the evidence of Robinson, the cashier: “The draft was presented by Mr. Johnson on the 9th…

This was an action brought in the Supreme Court, to foreclose a mortgage for $4,000, executed by the defendant, John B. Howell and wife to Isaac Picard, and by him sold and assigned to the plaintiff, for $3,100. It hears date the ninth day of July, 1859, and was given to secure a loan for $1,000 in money and the purchase money of a quantity of watches sold by Picard to Howell, for the price or sum of $3,000.

This action was tried at the Kings county circuit in J une, 1865, before the judge without a jury. All the evidence consisted of the admissions made in the pleadings and upon the trial, and the following facts appeared: On the 28th of August, 1863, Christopher Torrey and John Torrey commenced an action against S. Omar Kingsley and others, and in that action procured an attachment against the property of the defendants therein, which was delivered to this defendant as sheriff.

This is an action upon a bond, given for the release of the brig Jachin from a warrant of attachment,issued under the following circumstances: The defendant, Cockcroft, was the owner of the brig, he… Held: as matter of law, that the debt was a subsisting lien upon the vessel, and was duly exhibited, and that by reason of the non-payment thereof the conditions of the bond had been broken. Judgment was entered upon this report, which was affirmed at the Gfeneral Term.

The action was brought to recover damages for a personal in jury,sustained by the plaintiff by falling into a ditch, which the defendant had caused to be dug across the sidewalk of one of the streets in the City of Syracuse. The answer to the complaint was a general denial.

This action originated in a justice’s court in the county of Onondaga, and was brought for the recovery of the value of two hemlock saw-logs. The issue was tried on Saturday, January 5, 1861, before the justice before whom it was commenced and a jury.

The action is to recover on a marine insurance of freight money. The complaint states that the defendant issued to the plaintiffs, on the 25th day of November, 1863, a certificate of insurance, thereby insuring them, according to the conditions of a certain open policy issued by the defendant, $1,200 on freight money, on inboard cargo of brig Rio Grande, at and from Cleveland to Ogdensburg.

The action was replevin, to recover possession of certain United States treasury notes, particularly described in the complaint, “and also the sum of $9,112.19, delivered by Charles Meigs & Son to the defendant, with damages for the withholding thereof.” On the trial, the judge directed a verdict in favor of the defendant for the money claimed. A verdict was rendered for the plaintiff for all the treasury notes, except three of $1,000 each.

<p>A request, made by sureties to a creditor, to enforce securities held by the latter from their principal, to the end that they may be discharged by satisfaction of the debt, does not impose upon the creditor an absolute duty to enforce such securities without delay. It is only necessary that the creditor act in good faith and be free from gross neglect.</p> <p>If the creditor unreasonably delays, or acts in bad faith, or is grossly negligent, whereby the value of the securities is impaired, the loss thus occasioned is a defence, to that extent, available to the sureties; but mere delay will not suffice to discharge them.</p>

This action was tried at the Albany circuit, in February, 1865. On the trial it appeared that the plaintiff’s father, on the 6th of December, 1861, was the owner of a house in the city of Albany, which, with the cellar under it, was divided into several separate apartments.

This action was commenced in May, 1864, to recover damages for an injnry sustained by the plaintiff in November, 1863, from an alleged collision of the cars of the defendant with the plaintiff’s carriage. The plaintiff and his son were driving in a single wagon, on a highway approaching the city of Rochester from the west.

This action was brought to recover for injuries sustained by the plaintiff, while a passenger upon the defendant’s road. The cause was tried at the Rochester circuit, in January, 1865; and it appeared, among other things, that, on the 5th day of January, 1864, the plaintiff took passage on a train at Rochester going westerly, intending to go to K-nowlesville. The train stopped at Brockport, and there met a train coming east.

This proceeding was instituted by a landlord against his tenant, before the county judge of Erie county, to recover the possession of certain demised premises, situate in the city of Buffalo, under the provisions of the Revised Statutes, in case of a tenant holding over after the expiration of his term.

This was an action brought in the Superior Court of the city of Yew York, to recover the price of a cargo of hay, consisting of 1,197 bales of good hay and thirty bales of clover, claimed to have been sold and delivered to the defendants on or about the 9th day of December, 1863, at specified prices per pound.

On or about the 24th of May, 1861, certain household furniture, belonging to the plaintiff, was delivered to the defendant, marked and directed to F. P. Fenner, Dunkirk, FT. Y., and the defendant carried said furniture over its railroad to Dunkirk.

This action is upon a promissory note, dated May 30, 1863, of which John Wilson, Jr., is the maker, for $1,000, payable to his own order, thirty-one days after date, indorsed by him as the payee and first indorser, by the defendant Hudgett, as second, and by Wilson and Booth, as third indorsers. The complaint sets forth the note, alleges the demand of payment at maturity, and service of notice of protest on the indorsers. The answer of Hr.

The action was brought for the reformation of a deed, exe cuted by the plaintiff, he claiming that a reservation of certain timber had been omitted, through mistake on his part; and also for an accounting by the defendant for timber taken from the premises conveyed. An account was ordered to ascertain the value of the lumber taken since March 10th, 1851. The referee found the value at $2,041.72.

This was an action to compel the delivery of a policy of insurance, and the payment of $5,000 for the destruction of the property insured.

The referee found the following facts: That, previous to the month of ¡November, 1853, one Cornelius Westervelt was the owner in fee of the premises in question, upon which premises he was carrying on the business of a wood turner.

The action was commenced in April, 1863, to recover damages for an alleged injury, occasioned by raising the waters of Schenevus creek, by a mill dam, so as to overflow the lands of the plaintiff, and to compel the removal of such dam. There was no allegation in the complaint that the dam was a nuisance, but simply a statement of the facts, as to the over flowing of the plaintiff’s land, by means of such dam, and the injury resulting therefrom.

The action was brought for the redemption of a lease, given by Mary Griffin to Felix Duffy, the plaintiff’s intestate, on or about the 1st day of October, 1859, of a lot of ground on the southerly side of nineteenth street, between First avenue and avenue A, in the city of Mew York, held by the defendant, Margaret Masterson, under an assignment thereof from her co-defendant, Augustus W. Lord, to whom it was assigned by Duffy, by an assignment absolute in its terms, but…

Appeax from an order of the General Term, of the Supreme Court, in the second district, affirming an order of the Special Term striking out a portion of the appellant’s answer as false, and directing judgment upon the remainder of such answer as frivolous. This action is brought to foreclose a mortgage made by William H. Duryea to the respondent to secure the payment of $4,000.

verdict rendered by direction of the court. The action is ejectment for the recovery of a triangular piece of ground, located on the south side of the Wynant’s kill, in the city of Troy, immediately in front of the rolling mill of the defendant. The premises in dispute embrace 4,650 square feet, or about six one-hundredths of an acre.

The action was tided in May, 1862, before a justice of that court, without a jury. It appeared by the complaint that the action was brought- upon three promissory notes made by the defendant, two of them on the first of September, 1854, at Philadelphia, in the State of Pennsylvania, and the other on the 4th of January, 1855, at Buffalo, in the State of New York, all of them payable to the plaintiffs, on time, at the city of Buffalo, and amounting together to about $365.

This action was brought in the Common Pleas of the city and county of New York, to secure certain fees as attorney and counsel for the defendants, alleged to be due and owing by them to the plaintiff. .

<p>Appeal from an order of the Supreme Court, at General Term, in the second district, affirming a judgment in favor of the plaintiff, for a partition of land.</p> <p>The complaint is in the usual form for the partition of lands, and claims that the plaintiff, and the defendants, Humphrey, Berry, Emans and Haxtun, hold and are in possession of a small tract of land, in the town of East Fishlrill, Dutchess county, therein particularly described, as tenants in common, each of an equal, undivided fifth, subject to thé dower rights of the wives of Berry, Emans and Haxtun, who are also parties defendant. The answer denies that the plaintiff has any title, whatever, in the premises.</p> <p>As an affirmative defence, it is alleged that an agreement was entered into, on or about May 20th, 1864, by the plaintiff and the defendants, and thirteen other persons, whose names are subscribed thereto, of which the following is a copy, to Wit !</p> <p>“ Whereas, a committee of five' persons, appointed for the purpose, consisting of Elisha S. Baldwin, William Humphrey, Peter H. Perry, James 0. Emans and William E. Haxtun, have purchased of the consistory of the Hopewell Church, a portion of the horse she'd belonging to said church, and have also purchased of Charles Stockholm, a lot of ground north of and adjoining said shed, for the purpose of removing and erecting thereon said shed, and building an addition thereto, if such addition may be required. How, therefore, we, the subscribers, whose names are hereto annexed, do each and severally hereby authorize said committee, at our expense, to employ competent workmen to grade said lot, to remove and erect said shed, thereon, and also such addition to the same as may be required. And we, the said subscribers, do also agree to pay to said committee our proportionate and equal share of the expenses incurred by them, in the purchase of the sheds and lot, and in grading said grounds, removing and building sheds, together with all necessary expenses attending the same, upon the completion thereof, and the delivery of a proper title for each respective share thereof.” (Signed) Elisha S. Baldwin and seventeen others, including the defendants. That the premises in question were conveyed to the plaintiff and defendants by Charles Stockholm on or about July 8, 1864, as trustees, to carry out the purposes of the said agreement. That the deed was made absolute by omission and mistake. That the plaintiff acted with the defendants as a committee, and the sheds were removed, and erected on said premises, and each of them expended money about it till October 20, 1864,- when the plaintiff refused to act further in the trust; that on or about November 20, 1864, the defendants paid to the plaintiff $335, which he accepted in full of his interest in the premises. That the defendants have expended $950 in removing and erecting sheds and improving the said premises, in execution of the said trust, for which they claim that provision should be made in case partition be adjudged. The defendants demanded judgment to carry into effect the trust and agreement set forth.</p> <p>The plaintiff put in a reply to the allegations of new matter, putting them at issue.</p> <p>The action was tried in Dutchess county, before a justice of the Supreme Court, without a jnry. The counsel for the defendants objected that the court could not try the action, and moved to dismiss it, or that proceedings be stayed until the plaintiff should establish his title by an action of ejectment, on the ground that the pleadings showed a dispute as to the title. The court denied the motion, and the counsel for the defendants excepted.</p> <p>The court found, as facts, that Charles Stockholm, being the owner in fee, conveyed the premises mentioned in the complaint to the plaintiff and defendants, by deed in fee, on the 7th of July, 1864.</p> <p>That the instrument in writing set forth in the answer was executed about the 1st of June, 1864, as alleged.</p> <p>That the parties plaintiff and defendant, subsequent to July 7, 1864, made permanent improvements on the premises by the erection of sheds and grading the grounds, and that previous to the commencement of the action, and subsequent to the erection of fifteen sheds, the plaintiff proposed to withdraw from the committee, if the defendants would pay him what money he had expended on the premises, which he then stated to be $335. That, subsequently, on the 20th of November, 1864, and after the commencement of this action, one of the defendants paid him that sum, which he then received and still retains; and this sum has been allowed to the defendants, by the judgment herein, as a lien on the premises prior to the claim of the plaintiff.</p> <p>That on the 20th of November, 1864, the defendants, Humphrey, Berry, Emans and Haxtun, handed back to Charles Stockholm the deed 'from him, of the 7th July, 1864, and Stockholm then executed another deed of the same premises to the defendants Humphrey, Berry, Emans and Haxtun, in the absence of the plaintiff and without his knowledge.</p> <p>That nineteen sheds or stalls have been erected on the premises since July, 7th, 1864, of which fifteen were completed before the commencement of this action. That a meeting of the persons who signed the instrument set forth in the answer was called previous to the commencement of this action, at which about one-half of the signers attended, at which the plaintiff was invited to be present, but did not attend. That the said nineteen sheds or stalls were allotted to and among the several persons who signed the writing, except the plaintiff, and two stalls occupied by the church, and the several persons to whom they were so allotted have since had them in possession, but no conveyances of the sheds have been given.</p> <p>That an actual partition cannot be made without material injury to the interests of the parties.</p> <p>The justice found, as conclusions of law, that the plaintiff, and the defendants Humphrey, Berry, Emans and Haxtun, were seized of the premises in fee simple, as tenants in common, each being entitled to an undivided fifth thereof. That the premises be sold, and the proceeds divided among the parties according to their respective interests, with costs to the plaintiff. A reference was ordered to take and state the accounts of the parties relating to the premises, and that the entry of judgment be stayed till the coming in of the report, &c. The referee reported that Haxtun had paid out $549.90, Berry $207.88, Humphrey $83, and Emans $209.71.</p> <p>Judgment confirming the report and for partition sale of the premises; for the payment of the above amounts; and for a division of the surplus according to the decision of the justice, and for the delivery of possession to the purchaser, was made at Special Term, May 8th, 1865.</p> <p>The defendants duly excepted to the conclusions of the justice. An appeal was afterwards heard at the General Term, where the judgment was affirmed. The defendants thereupon appealed to the Court of Appeals.</p> <p>to the points discussed in the opinion, cited Voorhees v. Presbyterian Church of Amsterdam (8 Barb., 135); S. C., 17, id 103; Sweet v. Jacock (6 Paige, 335); Lees v. Nutall (2 Myl. & K., 819); Van Epps v. Van Epps (9 Paige, 241); Torry v. Bank of Orleans (id., 649); Brewster v. Power (10 Paige, 567); 4 Kent’s Com., 305-6.</p> <p>cited People v. Bostwick (5 Tiffany, 447); Larkin v. Mann (2 Paige, 27); 3 Paige, 245; Cox v. Smith (4 John. Ch., 271); Phelps v. Green (3 id., 302); Jenkins v. Van Schaack (3 Paige, 245); Code §§ 140, 142, 143.</p>

The facts as found at Special Term are substantially as follows: On the 1st day of October, 1858, the plaintiff and defendant, Smith, entered into an agreement, in writing, at the city of New York, as follows: “New York, October 1st, 1858.—Received of George T. Leaird $100, on account of $900, consideration money, on a purchase by him and sale by me, of lot of land, described as follows, to wit.: Beginning at a point on the easterly side of Third avenue, distance fifty feet…

This is an action for the foreclosure of a mortgage made •by Stephen D. Dillaye and wife to the appellant. The action -was against Dillaye and wife and the respondents, who were .subsequent purchasers of the premises. The defence of .usury was set up by the respondents, and the question whether, under the circumstances of the case, they had a right to set up that defence, presents the principal point on this appeal.

The facts of this ease, as found by the referee, are substantially as follows: On Wednesday, the 13th day of January, 1864, the plaintiffs were partners in business in the city of Syracuse, and on that day the defendants were at their store and agreed to purchase of the plaintiffs, and the plaintiffs agreed to sell them, 200 barrels of highwines at one dollar per gallon.

The action was brought to compel the specific performance of a contract between the plaintiff and the defendant Loren Church. It appears, from the facts found by the referee, that Eoswell Downer died in January, 1857, leaving a widow, but no child. He left certain real estate, consisting of a dwelling-house and about five acres of land, situate at Somerset, in Hi agar a county, of the value of about $1,000, and personal estate worth between $9,000 and $10,000.

of the Sew York Court of Common Pleas, affirming a judgment entered upon a verdict in favor of the plaintiff. The action was against the defendants Dorman, Joslyn & Co., brokers, alleging a balance due to the plaintiff, in brokerage transactions by them for him, on the 19th day of April, 1864, of $8,761.22, and payments thereon of $1,500, May 29, 1864, and $1,500, June 15,1864, and claiming to recover $5,583.37, with interest from June 15, 1864.

This action was brought to recover the price of certain hoops, which the plaintiffs claim to have sold to the , defendants, at Baltimore in 1863. The plaintiffs were a firm doing business in Baltimore, and the defendants were a firm doing business in New York. In the fall of 1863, one of the defendants came to plaintiffs’ yard in Baltimore, where the plaintiffs had 24,000 barrel hoops, and looked at them and entered into negotiation with plaintiffs to buy them.

The action was for the recovery of the possession of a lot of land, with a dwelling-house thereon, in the village of Fabius, Onondaga county, in the occupation of the defendant. Both parties claimed to derive title from William Frink, as the common source. The trial was had before the Hon. George FT. Kennedy, as sole referee.

<p>The defendant, upon a purchase of real estate, assigned to the plaintiff, in part payment of the price, the bond and mortgage of a third person, guaranteeing “ payment of the interest on the within bond, within ten days after the days the same shall become due and payable by” the inertgagor. The principal of the bond was payable three years after date, and interest semi-annually.—Held, that he was not liable upon this guaranty for the payment of any interest after the maturity of the bond. The fact that the bond and mortgage were assigned in payment of the purchase-money does not make it the debt of the guarantor. As to the principal of the bond, there was no personal liability of the defendant.</p>

. This action was brought upon the following draft: “ Rochester, N. Y., December 30, 1861. “ $15,000. Ninety days after date pay to the order of D. Lowrey $15,000, value received, and charge to the account of “BRADMER & CARROLL, “ Hemlock Lake. “ To Messrs. Lowrey, Strang & Co., Mo. 1 Beaver street, Mew York.” The draft was accepted by the drawees, payable at the Bank of Morth America.