Volume 44 — New York Supreme Court Reports

The action was brought for the alleged conversion of a threshing machine. The machine had been manufactured by the defendant and delivered to the plaintiff, who resided in Monroe county. And for some reason or purpose the plaintiff returned it to the defendant at Buffalo, and the defendant put the machine into its warehouse there.

MotioN by the defendant for a new trial, on exceptions ordered to be beard at the General Term in the first instance. Th'e action was in ejectment, to recover certain premises situated at the outlet of Crooked lake or Keuka lake (as it is now called), in the village of Penn Yan, and used for a steamboat landing and for dock purposes. It appears that the title was in one Wegener, who leased them to one Conklin for a term of years ending on the 1st day of March, 1884.

Lapbam, deceased. On tbe 15tb day of May, 1883, tbe testator made a will by wbicb: First. He gave to bis brother George H. Lapbam $4,000. Then followed tbe following provision: “Second.

CONTROVERSY presented upon a case agreed upon and submitted without process. Angus McDonald died February 10, 1884, leaving his will, which, was duly proven and admitted to probate, and letters testamentary thereunder were issued to the plaintiff.

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

The trial was had on an appeal from a Justices’ Court to the County Court, and the case was removed into this court. The action was brought to recover for goods sold and delivered.

Appeal by tlie defendant from a judgment, entered on the report of a referee. The action was brought June 27, 1882, by Morris E. Solomon and Lena Beir to restrain the continuance of an alleged nuisance. Tlie plaintiff Solomon was the owner of the premises situate in the ciiy of Rochester and occupied by the plaintiff Beir, his tenant, as a dwelling-house under a lease for the term of three years from the 1st day of April, 1880, at the annual rent of $700.

The causes of action alleged are sales by the defendant of intoxicating liquors, in quantities less than five gallons at a time, without having a license. The plaintiff had a verdict for $150, upon which judgment was entered. The defendant appeals.

Appeal by tbe plaintiff from an interlocutory judgment, entered on a decision made at the Cattaraugus Special Term, sustaining a demurrer to the complaint. The action was braught against The Buffalo, New York and Philadelphia Railway Co., and the President and Board of Trustees of the village of Olean.

Appeal by tbo defendants from a judgment, entered on tbe report of a referee. The action was brought to recover damages for the conversion of a canal boat. The defendants sought to justify a sale of it by virtue of proceedings, alleged' to have been taken pursuant to tbe “ Act to provide for the collection of demands' against ships and vessels.” {1862,. chap. 482.) The plaintiff recovered a judgment, from which the defendants appealed.

■ Appeal by the defendants from judgments, entered on the reports-of a referee. The actions were commenced in October, 1873, founded on chapter 163, of the Laws of 1870, to recover penalties given by that act for tak ing illegal rates of .interest.

Appeal by both plaintiff and defendants from a judgment, entered on the decision of tbe Erie Special Term. The action was brought to procure an adjudication establishing the alleged right of the plaintiff to pay for and take title to certain lands under a contract of purchase and sale.

<p>Supplementary proceedings — defeats in the affidavit cannot he taken advantage of in coUatw'al proceedings —power of a county judge to direct money to he paid, over to the claimant — 0ode of Procedure, sec. 294 — the hoa/rd of education of Rochester is a distinct corpoi'ation, separrate from the city.</p> <p>In this action, brought by the plaintiff to recover for a quantity of charcoal sold and delivered to the defendant, to be used in the public schools in Rochester, which were under its charge, the defense was that the amount due had been paid to a judgment creditor of the plaintiff under an order made in proceedings supplementary to execution. It appeared that the affidavit presented by the judgment creditor in such proceedings to the county judge stated “ that the city of Rochester, as deponent is informed and believes, is indebted to said defendant in an amount exceeding ten dollars, and that Alonzo L. Mabbett, the superintendent of the board of education, is acquainted with the facts of said indebtedness, and has possession of the claim, order or check upon the treasurer of said city, as such officer of said city, of said indebtedness to said defendant; that the treasurer of said city has charge of the moneys so to be paid to said defendant.-” An order was made requiring Mabbett to appear and be examined, but none requiring the city of Rochester or the board of education to so-appear, nor was any order served on them, nor did they appear in the proceedings. The final order therein recited that it appeared that the city of Rochester was indebted to the plaintiff in a sum named; that a check therefor was in the hands of Mabbett, and ordered it to be delivered to the judgment creditor in those proceedings and the amount thereof paid to him by the treasurer of the city.</p> <p>Held, that the validity of the order could not be attacked in this collateral proceeding, upon the ground that the facts were stated in the affidavit upon information and belief.</p> <p>Miller v. Adams (52 N. Y., 409) followed.</p> <p>That as neither the city nor the board of education were ordered to or did appear for examination, the judge exceeded his jurisdiction in directing the treasurer to pay the amount of the check to the claimant, and that the order made by him was invalid.</p> <p>It seems that the board of education of the city of Rochester is a separate and distinct corporation from the city of Rochester, and that its rights and liabilities upon contracts made by it cannot be affected by orders made in proceedings instituted against the city of Rochester.</p>

<p>Appeal from an order of the Steuben Special Term, requiring tbe plaintiff to elect on which of the three counts in the complaint he will proceed to trial, etc.</p>

Motion by the plaintiff for a new trial on exceptions taken at the Steuben Circuit, and ordered to be beard at the General Term in the first instance. At the trial the court nonsuited the plaintiff.

MotioN by the defendant for a new trial on exceptions taken at the Wyoming Circuit, and ordered to be heard at the General Term in the first instance.

The action was brought to recover the possession of a farm situate in the county of Allegany, containing 435 acres, to which the plaintiff claimed title by virtue of a conveyance made by J ohn M. Stuart, creating a trust. The defendant claimed that he had the equitable title to the premises and was entitled to the possession thereof.

The action was commenced in 1881. It was tried January, 1882, a verdict being rendered in favor of the defendant, and the plaintiff’s exceptions being ordered to be heard in the first instance at the General Term.

Appeal by Jackson W. Bowdish from an order made at the Monroe Special Term, on the motion of the above named plaintiffs, setting aside a judgment, entered in favor of Jackson W. Bowdish against the defendant Isaac Allison by confession ; the execution issued thereon and the sale of the property by virtue thereof.

<p>Appeal from a judgment, entered upon a nonsuit at tbe Monroe Circuit, and from an order denying a motion for a new trial made upon tbe minutes of the court.</p>

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

<p>Statute of distributions — 8 B. S. {Qth ed.), 104, sea. 90 — a divorced woman is not the “ widow ” of her former husband upon his death.</p> <p>A "woman who has procured from the courts of this State a decree for a divorce from her husband upon the ground of his adultery, is not, at the time of his death, his “widow” within the meaning of that term as used in the statute of distributions, and is not entitled to a distributive share of his personal estate.</p>

Tbe action was one of ejectment. Tbe premises described in the-complaint were sold for taxes levied in tbe years 1863,1864 and 1865,. and on tbe 6th day of February, 1875, tbe comptroller executed and delivered to the plaintiff Caulkins a deed of tbe same, pursuant to the sale. Tbe plaintiff Hill claims title to an undivided part of the-premises under a conveyance executed to him by Caulkins, bis co-plaintiff.

<p>Appeal from a judgment, entered upon the decision of the Orleans-Special Term, dismissing the plaintiff’s complaint upon the merits.</p>

Justice Dwinht. No evidence was given on the trial, and tbe complaint was dismissed on the plaintiffs opening, because it did not state facts constituting a cause of action. Tbe Mutual Benefit Association of Rochester was created a corporation in pursuance of chapter 267 of the Laws of 1875.

<p>Appeal from a judgment, entered upon a verdict in tbe plaintiffs favor for tbe sum of $600 damages. Tbe questions presented were set forth in a bill of exceptions made by tbe defendant.</p>

Motion by tbe plaintiff to set aside a nonsuit, and for a new trial,, in a case tried at. the Cayuga Circuit. The action was brought to recover damages for the alleged negligent killing of Alice Ryan, the plaintiff’s daughter. The exceptions were ordered to be heard at the General Term in the first instance. °

<p>Appeal from a judgment in the plaintiffs favor, entered upon a verdict rendered at the Ontario Circuit, for $2,829.35. The plaintiff is the general assignee of the goods and effects of Edward JD. Seeley, in trust for the benefit of the creditors of the latter. The assignment was executed and delivered on the 19th day of August, 1880. The action is for fraud and deceit on the part of the defendant, in malring false statements and representations as to the financial condition of Levi A. Snow and one Maggie Clark. Snow was at the time of the 'alleged false representations in negotiations with Seeley for the purchase of his stock of goods of the value of some $2,200, and proposed to give in payment therefor his own note, indorsed by the said Clark. The trade was consummated, the goods delivered and the notes of Snow, indorsed by Clark, were received in payment.</p> <p>The complaint alleges that Seeley was unacquainted with the financial condition of Snow and Clark, and pending the negotiations Snow referred Seeley to the defendant for information respecting their financial condition, and that the defendant, knowing that Snow and Clark were in insolvent circumstances and unfit to be trusted, but contriving and intending to fraudulently deceive and injure Seeley, falsely, fraudulently and deceitfully represented and affirmed to him that Snow and Clark were perfectly good and responsible, and that he himself had discounted Clark’s paper, and he considered her paper good, and if Seeley, in concluding a sale of the goods and merchandise, took in exchange the notes of the said Snow, indorsed by Clark, the defendant would discount them. The complaint contains the other customary allegations in such cases, .stating that the representations were false and untrue to the knowl edge of the defendant.</p> <p>The plaintiff’s counsel, in stating the case to the jury, mentioned the facts he intended to prove, and, among other things, stated that Snow applied to Seeley to purchase his goods and to pay therefor the sum of $2,279, by his notes indorsed' by Clark, and that Seeley was unacquainted with the financial condition of said Snow and Clark and being referred by Snow to the defendant, applied to the defendant for information respecting Snow and Clark’s financial condition; that the defendant, although he knew said parties were insolvent and unworthy of credit, with the intention of injuring and deceiving Seeley, represented and affirmed that both Snow and Clark were good and responsible for the amount named; and he proposed, also-, to prove the other facts and circumstances stated in the complaint. Thereupon and before any evidence was presented the defendant moved for a nonsuit, upon the ground that the cause of action set forth in the complaint was not assignable, nor did the facts stated in the plaintiff’s opening constitute a cause of action in the plaintiff’s favor. The motion was denied, and the defendant excepted. The plaintiff then gave evidence tending to establish the facts as stated in his opening and alleged in his complaint, and gave in evidence the assignment, the granting clause of which is as follows: “'The,, said Edward D. Seeley, the party of the first part, has sold and assigned * * * and ¿oes sell and assign * * * unto the party of the second part * * * all and singular the lands, goods, chattels, promissory notes, debts, claims and demands, property and effects of every description belonging to the said party of the first part.”</p> <p>The case also states that “ the evidence tended to show that the goods were shipped from East Broomfield (Seeley’s place of residence) to Syracuse (the residence of the defendant), and were delivered at a store, then in the possession of the defendant, and that the defendant had received some of the proceeds of the said goods ; that the defendant was to have one-fourth of the goods in question for recommending the said promissory notes to be good.” The plaintiff then rested, and the defendant renewed his motion for a nonsuit upon the same grounds as those before stated. The motion was denied, and the defendant again excepted. The bill of exceptions then states: “ The defendant thereupon gave evidence tending to contradict the evidence of the plaintiff upon the question of deceit alleged to have been practiced upon him.” None of the evidence or the charge of the court is set forth in the bill of exceptions. The answer was a general denial. This action was commenced in N ovember, 1880.</p>

Tbe action originated in an application for a writ of ma/ndamus to compel tbe defendant to execute a deed of certain premises iu Tates county, for which tbe relator held tbe defendant’s (sheriff’s) certificate of sale. The appellant procured an alternative writ of mandamus requiring the sheriff to execute to him a deed of certain premises sold on execution, or to show cause to the contrary.

<p>Receiver of a corporation — a judgment should he entered against Mm, as receiver, and net personally — when it may he so entered after he has been discharged as receiver.</p> <p>In an action brought by the creditor of a corporation against a receiver thereof, in his official capacity, no personal judgment can be rendered against him; the judgment must be entered against him as receiver, and must be made payable out of funds held by him in that capacity.</p> <p>The fact that the receiver has been discharged during the pendency of the action brought by the creditor, and has transferred all the property and assets held by him to another corporation or person, pursuant to an order of the court, does not render it improper to thereafter enter a judgment in an action against him as receiver, when it is made payable out of funds held by him, and applicable to that purpose.</p>

In 1863 Oliver Comfort, the father of tbe parties to this action, made bis will, by wbicb he gave a life estate in the houses and lots in controversy to his brother Robert Comfort, and the remainder thereof to the plaintiff. He gave his home, farm and all the rest and residue of his estate, to the defendant and made him one of his executors.

Tbe action was brought to recoves dower in about 2,000 acres of wild land, tbe property of James Jones, by tbe plaintiff, wbo is bis widow. Tbis is tbe third time that this case has been brought on .appeal before tbe General Term. Tbe opinion on tbe first appeal is reported in 29 Hun, 551, and on the second in 32 Hun, 280.

This action is brought by a mortgagee against a mortgagor and his wife, to foreclose a mortgage for the non-payment of annual interest. But two defenses are interposed: (1.) That the interest has been paid. (2.) That the mortgage is usurious.

The defendant, as sheriff, held an execution against one Samuel aimer, and December 5, 1878, levied upon several articles of personal property, to recover which the plaintiff brought this action of replevin, claiming title to all of the articles. The complaint contains but a single count or cause of action. The value of the articles are not separately stated in the complaint, but it is alleged that all of the articles were, at the date of the seizure, worth $400.

<p>Supplementary proceedings — a witness may he compelled to attend in a counvy other than that of Ms residence — Oode of Oiml Procedure, sec. 2459 — when an attorney cannot refuse to testify as to a transaction had with his client on' the ground that it was privileged — Oode of Oivil Procedure, see. 835.</p> <p>The prohibition contained in section 2459 of the Code of Civil Procedure against compelling a judgment debtor, or other person required to appear and be examined in proceedings supplementary to execution, to attend at a place without the county wherein his residence or place of business is situated, does not apply to witnesses subpoenaed to appear and testify in such proceedings. Such a witness may be compelled to appear and be examined in a county other than that of his residence.</p> <p>In proceedings supplementary to execution a person, to whom a mortgage had been given by one to whom the judgment debtors had conveyed the real estate described in the mortgage, was subpoenaed as a witness and interrogated as to the circumstances attending the execution of the mortgage and the consideration thereof. He refused to answer on the ground that he was an attorney and counselor-at-law, and was, at the time the mortgage was given, acting as the counsel of the mortgagor.</p> <p>Held, that the witness by becoming a party to the mortgage lost his privilege and was bound to testify in respect to its execution and consideration the same as any other witness.</p>

<p>■Supplementary proceedings — subpoenas to witnesses should be under the hand of the referee before whom they are to testify — Code of Civil Procedure, sec. 854.</p> <p>Where supplementary proceedings, instituted upon a County Court judgment, have been referred by the recorder of a city to a referee to take and report the evidence, subpcnnas to witnesses should be issued under the band of the referee before whom they are to testify, and not be tested in the name of the county judge and county clerk as though issued in an action pending in a County Court.</p>

<p>Advancements — when a payment made subsequent to the execution of a first will and prior to that of a second and last will, each will giving the same legacy, should not be treated as an advancement upon such legacy.</p> <p>In November or December, 1879, Sarah Gibson executed a will by which she-bequeathed $1,000 to Henry L. Kingsley. April 1, 1880, she loaned $400 to one Shapley and took from him his promissory note, payable to Henry L. Kingsley or bearer, which note she handed to Kingsley, to whom it was with her assent paid in April, 1881. May 20, 1881, she executed a second and last will by which she bequeathed $1,000 to'the said Kingsley.</p> <p>B.eld, that the $400 should not be treated as an advancement and payment upon the legacy as the last will was executed after it had been paid.*</p>

<p>Appeal from a decree of the surrogate of Oneida county adjudging that a residuary devise and bequest to an infant vested in him, and that upon his death unmarried and intestate it passed to his heirs-at-law and next of kin.</p> <p>On the 7th of August, 1875, John B. Wasmer, of Utica, died,, leaving a last will and testament, dated December 12, 1874, which was admitted to probate bj^ the surrogate of Oneida county on the 28th of September, 1875. By the second clause of said will the testator gave to his wife Mary his homestead and household property during her natural life, with an annuity of $600. By the sixteenth clause he gave the homestead and contents, subject to said life estate, to his nephew John B. Wasmer in case he should live to be thirty-five years of age and to his children if he should die before reaching that age and to Agnes Hohman if he should die childless before reaching that age. Said clause also provided that after the decease of testator’s wife, if she should survive him, otherwise from his own decease, the- said nephew should have, use and enjoy the homestead, furniture, etc., during his natural life if he died before the age of thirty-five or until he became thirty-five, if he should live so long. By the seventeenth clause he gave to his executors the sum of $3,000 in trust to invest the same and apply the income to the support and education of said nephew during his minority and upon his becoming of age, if his father should then be living, said nephew was to receive the income of said sum during the life of his father, and upon his father’s death, the principal. If the nephew should die before his father, leaving children, then the principal was to be paid to them. If the nephew should die childless, before his father, the principal was to go to said Agnes Holl-inan. The remainder of said clause is in these words: “ This gift, bequest or benefit to said nephew John B. Wasmer is made upon condition that, and bis right to said sum, and to the income or interest thereof, is made dependent upon the condition, that none thereof or of the other property or moneys received by him under this will shall be given, paid or loaned to his said father; and my executors, as such trustees, are authorized and I order and direct that before paying any of said income or interest thereof, or said sum itself, or any thereof, or of either thereof, to my said nephew, they ascertain whether or not he has before then given, paid or loaned anything thereof, or of the other property or moneys received by him under this will to his said father, and if he. shall have so paid, given or loaned any thereof to his said father, it is my will, and I order and direct that he receive and be entitled to receive no more of such income or interest, and none of such sum of money; but that same go and it is my will if said nephew leave child or children him surviving, it go to, and I order and direct my said executors to pay same to such children, equally share and share alike ; and if my said nephew John B. "Wasmer in such case leave no children him surviving, that same and all thereof belong to and be paid to my said adopted daughter Agnes Hohman as her sole and separate property. It is my will and intention that the father of my said nephew receive none of my estate. I give none to him by this will, and intend that none of my estate be given to him after its receipt by my said nephew John B. Wasmer, and therefore make the above condition. But I do not object nor make any condition concerning my said nephew’s giving, paying or loaning any moneys, he by his own labor shall earn or accumulate, to his said father, nor in the 'least wish to prejudice my said nephew against his said father; but do intend to provide, and it is my will that my said nephew’s said father receive none of my estate, and for that reason make such condition.”</p> <p>By the nineteenth clause said testator gave one-half of all the rest and residue of his estate, real and personal, to his said nephew, “ to have and to hold forever on the condition stated in the seventeenth item or division of this will, as to giving, paying or loaning same, or any property received under this will, to his said father.” By the twentieth clause he gave u all the rest and residue ” to his adopted daughter Agnes Hohman.</p> <p>John Hohman and Louis Faass were named as executors and, upon probate of tbe will, duly qualified. The testator’s wife died November 29,1879, and bis nepbew, wbo never married, died January 26,1877, aged sixteen years. Jacob Wasmer, testator’s brother, and the father of his said nephew, is still living, as is also his adopted daughter Agnes Hohman. No letters of administration have been issued upon the estate of the said nephew.</p> <p>On the 1st of March, 1883, the executors filed their accounts, and a decree was made by the surrogate, which, among other things, directed payment to Agnes Hohman of the legacy named in the seventeenth clause of said will, and also the sum of $4,451.41, and that a like sum should be paid to the surrogate to abide his decision in regard thereto. The executors were, on making such payments, to be discharged from all further liability, except as to a trust fund of $1,500 not material on this appeal. On the 18th of December, 1883, a supplementary decree was made adjudging that said sum so deposited with the surrogate should be retained by him until tne appointment of a personal representative of said John B. Wasmer, deceased, nephew of said testator, and that upon such appointment being made the surrogate pay over to him said sum, with all accumulations of interest.</p> <p>From the decree last named the executors and Agnes Hohman appealed to this court.</p>

This action was brought to recover the rent reserved in three-perpetual leases, executed by the plaintiffs and their predecessors to different persons,.under each of which it is alleged the defendant became liable as grantee of the demised premises.

On the 16th of December, 1882, Luther Hathaway died leaving a last will and testament dated September 19, 1882, which was •admitted to probate March 19, 1883. By the first clause of said will he bequeathed all of his personal estate, after the payment of his debts and funeral expenses, to his wife and seven children in equal shares. Apart from the attestation clause the rest of the will is in these words: ‘£ Second.

This cause was on tbe calendar of tbe Cortland Circuit in November, 1884, when, upon motion of tbe defendant, an order was made that the case go over the term; that a commission issue and that the defendant pay the costs of the term, “ to be regularly taxed.” Upon the taxation of such costs a contest arose before the clerk as to the materiality and necessity of certain witnesses who, as the plaintiff claimed, had actually and in good faith attended said circuit in his behalf…

' The appeal' book contained no case or exceptions, but simply tbe judgment-roll, consisting of tbe summons and complaint, with proof of service, tbe answers, judgment, notice of appeal and certificate of tbe clerk.

April 1, 1856, a manufacturing corporation of the State of New Jersey mortgaged its real estate to secure an issue of fifty bonds for $1,000 each. Forty-eight of these bonds were issued.

favor of the plaintiff, entered in Chenango county, upon the report of five referees, for $7,000. The plaintiff took passage on the evening train in the defendant’s' sleeping car on the 28th of October, 1883, in the village of Norwich, for Hoboken, having purchased a ticket from the defendant for her passage and for a berth in a sleeping car, and having paid1 the proper charges therefor.

Tbe action was brought to recover for ice which the plaintiff alleges bad been sold to. the defendants and for which they were liable to pay, as partners. The defendants denied the purchase and liability and the alleged partnership.

The action was brought to procure a judgment declaring a marriage contract entered into between the plaintiff and defendant void, and annulling the marriage on the ground that the plaintiff had been induced to enter into it by false and fraudulent representations made by the defendant.

and also from an order denying a motion made upon the minutes for a new trial. The action was brought to recover damages sustained by the plaintiff, by reason of the defendant’s cars colliding with him while he was attempting to cross a highway at Sidney Plains.

On the 1st day of May, 1883, a partnership, composed of the above named defendants, existed, doing business under the firm name and style of George B. Herenden & Co., in the State of Ohio, and, as the plaintiff claims, they became and were jointly indebted to him as such partners. The defendants were each residents of the State of Ohio. On the first day of May aforesaid, an action was commenced in the Supreme Court of the State of New York to recover the demands.

On the 11th of December, 1S79, plaintiff recovered a judgment in a Justice’s Court for $176.87 against Lucy A. Michaelson, on which, execution was issued and delivered to Nicholas H. Haynes, a constable, who leyied upon a stock of millinery goods the property of the judgment debtor, and who took the property into custody the same day.

In May, 1884, the petitioner caused to be served upon tbe alleged lunatic notice of an application for a commission. Tbe lunatic .appeared and tbe application was denied, but with'leave to renew tbe same upon additional papers on the eleventh day of June. Tbe petitioner understood it to be postponed to tbe twelfth of ■June, and did not appear tbe eleventh, and, consequently, an absolute order was entered denying said application.

The plaintiff and the defendant were named as executors in th& last will of Susan Roseboom, deceased, and both appeared at the probate thereof before the surrogate. The plaintiff took out letters; the defendant declined to qualify.

<p>General assignment — token it will be set aside as to a creditor induced to refraim from entering a judgment by the fraudulent representations of the assignor.</p> <p>September 4, 1882, the plaintiffs were about to enter a judgment against one Taylor, whose time to appear had expired.. If such judgment had been then entered the amount thereof could have been collected upon an execution then issued thereon. To induce the plaintiffs to refrain from so doing Taylor agreed that he would pay the claim, by frequent partial payments, before November first, and that if he concluded to make a general assignment he would give the plaintiffs notice of his intention so to do twenty-four hours before executing it. Taylor also then made a statement as to his assets and liabilities, in which the former were greatly overstated and the latter understated. The proposition having been accepted Taylor paid $117.14 on the claim prior to September twenty-seventh. On September twenty-eighth Taylor, without giving any notice to the plaintiffs, made a general assignment to the defendant Jones, containing preferences, the plaintiffs being placed in the fifth class. Thirty minutes after the assignment had been recorded the plaintiffs judgment was entered and an execution issued thereon, which was returned unsatisfied.</p> <p>Upon the trial of this action, brought by the plaintiffs to set aside the assignment as fraudulent as to them, the court found that Taylor intended to make the assignment at the time of entering into the agreement, and made the agreement for the purpose of preventing the plaintiffs from exercising their legal rights and to gain time in which to make the assignment.</p> <p>Held, that the assignment was fraudulent as to the plaintiffs, and should, as to them, be set asid</p>

<p>Appeals from orders, made at Special Term, adjudging the defendants guilty of contempts and imposing fines upon them.</p>

<p>Appeal from a judgment- of the Saratoga County Court, affirming a judgment in favor of the plaintiff rendered by a justice of the peace.</p> <p>This action was brought to recover the amount due on a promissory note, purporting to have been made by the defendant to Abram C. Leach, and indorsed by the latter to the plaintiff. The defense was that the name of the defendant was a forgery.</p> <p>The plaintiff proved that the note was received by the bank from the payee named in it, by whom it was indorsed, and for whom it was discounted ; he also gave evidence to the effect that the signature to the note was that of the defendant; also that the payee was dead. The defendant was then sworn in his own behalf and was asked this question : “ Is the signature to this paper, marked ‘A’ (the note in suit), your signature 1 ” The objection was interposed that the question was inadmissible under section 829 of the Code of Civil Procedure, it appearing that the payee, from and through whom the plaintiff derived title to the note, was dead. The objection was sustained. The defendant then offered to show, by his own testimony, that his signature to the note was a forgery ; that he never saw the note until that day and never signed it. It was thereupon stated in behalf of the plaintiff that no objection would be made to any offers made by the defendant, but that objections to questions would be interposed when put. No ruling was made on the offer, and the case was submitted without further proof or offer of proof. The plaintiff had judgment for the amount of the note which on appeal was affirmed by the County Court.</p>

<p>'Trustees of a Manufacturing corporation — 1848, chap. 40, sec. 23 — to what (creditors the ti'ustees, assenting to the contracting of debt in excess of the amount of its capital stock, a/re liable.</p> <p>'The construction given by this court (in the decision of this case, reported in 36 Hun, 622) to section 23 of chapter 40 of 1848, to the effect that if the indebtedness of any company organized under such act should at any time exceed the amount of its capital stock, the trustees of such company assenting thereto should be personally and individually liable for such excess to Üte creditors of the company to whom such excess is owing, approved and reaffirmed upon a reargument of the case.</p> <p>Jlornorv. Henning (93 U. S., 228); Merchants' Bank of Newburyport v. Stevenson (10 Gray, 232); Anderson v. Speers (21 Hun, 568), distinguished.</p>

<p>Appeal by the defendant from a judgment in favor of the plaintiff, entered upon the report of a referee.</p> <p>The action was brought to recover damages occasioned by the laying of railroad tracks upon the lands of the plaintiffs and the running of trains thereon.</p>

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

<p>Practice — when an action may he continued in the name of the original plaintiff after he has made a general assignment— Code of Civil Procedure, secs. 449, 756.</p> <p>The plaintiff having, after the commencement of this action, made a general assignment for the benefit of his creditors, the defendant obtained an order' staying all proceedings herein until the assignee should cause himself to be substituted as plaintiff. On the hearing at Special Term the assignee opposed the application.</p> <p>Held, that the order was improperly granted and that it should be reversed.</p> <p>The provision of section 449 of the Code of Civil Procedure, requiring an action to be prosecuted in the name of the real property in interest, is modified by section 756 thereof, which allows an action to be continued in the name of the original party, although he may have transferred his interest therein to another person.</p>

<p> Evidence — a pa/riy reading pa/rt of the evidence given on a former 1/rial cannot he compelled to read the whole of it. </p> <p>This action was brought to recover damages for the destruction of a building belonging to the plaintiff, which was alleged to have been set on fire by sparks escaping from the smoke-stack of one of defendant’s locomotives. Upou the trial, under a stipulation that “ either party might read from the testimony taken on the former trial, subject to all objections,” the defendant’s counsel read a portion of the testimony given by a witness upon the former trial, which tended to show that the smoke-stack was in good condition after the fire. The counsel proposed to omit the following question: “ Didn’t you after that change it, and if so, what did you do it for, if it was in good order,” stating that he had objected to the question upon the former trial and wished now to object to it.</p> <p>Held, that the court erred in compelling the defendant’s counsel to read the question and answer as a part of his testimony.</p> <p>A party reading part of a statement or correspondence cannot be compelled by his adversary to read it all. The opposite party may, if he desires so to do, himself read so much of the remainder as tends to qualify or explain what his adversary has read.</p>

<p>Appeal from a judgment, entered upon th'e trial of this action by the court without a jury, and from an order refusing to set aside the verdict of a jury upon two questions submitted to them.</p>

<p>Appeal from an interlocutory judgment, entered upon an order sustaining a demurrer interposed to tbe complaint on the ground that it did not state facts sufficient to constitute a cause of action.</p>

Appeal fiom a judgment in favor of tbe plaintiff, entered upon the trial of this action by the court, without a jury. . Prior to the trial by the court, certain specific questions had been submitted to and passed upon by a jury.

Tbe cause was tried before Mr. Justice Cullen, at Special Term, ■and judgment was entered upon bis decision. Tbe action was brought by Jane Robert to enjoin tbe defendants, who claim to be commissioners for grading Eighteenth avenue, in tbe town •of New Utrecht, from digging gravel from that portion of Eighteenth avenue so-called, which lay in front of her farm, and carrying the same away.

Beargdment of an appeal by the defendants from a judgment, entered upon a verdict recovered by plaintiff at the circuit in Kings county. The action was brought to recover damages alleged to have been sustained by the plaintiff by reason of an injury caused by the negligence of an engineer employed by the defendants. The plaintiff had a verdict for $500, and from the judgment entered thereupon the defendants appealed to the General Term.

Appeal by tbe defendant from so much of a judgment in favor of the plaintiffs as awards damages to the plaintiffs. The judgment was entered upon the report of a referee. The action was brought: 1st. To recover certain premises upon the ground that there had been a breach of the condition contained in a deed of conveyance thereof from the plaintiffs to the defendant ; and, 2d, to recover damages upon an alleged breach of a covenant in the same deed.

Appeal by tbe plaintiff from an order setting aside a verdict of $750 in his favor, and granting a new trial on the defendant’s motion, made at the close of the trial upon the exceptions. The action was brought by the plaintiff to recover $2,675 for services rendered Pierre hi. Yan ’W'yck in his lifetime. The employment, services and value were put in issue.

<p>Appeal from an order, made at a Special Term, denying a motion to compel the plaintiff to furnish the defendants with a bill of particulars.</p>

The action was brought to recover damages for personal injuries alleged to have been received through the negligence of defendants, plaintiff’s employers. The testimony of the plaintiff tended to show that she was employed to feed a press; that as she stepped down from her press she slipped on the floor and fell down, thrust ing her left hand against the cogs of another press and sustained the-injuries complained of.

Brown. This action is brought by the plaintiffs as judgment creditors of the defendant Brown, to set aside a general assignment made by him to the defendant Butcher, on the ground that the same is void upon the face thereof.

The action was brought to recover upon assignments of claims of various employees of the defendant agreed for as wages. The right of the plaintiff to enforce the claim of one Sexton was contested upon the trial, and upon the hearing of this appeal.

The application was denied upon the ground that the judgment was docketed upon the filing in the county clerk’s office of the transcript of a judgment recovered in a Justice’s Court more than six years prior thereto.

<p>Town bonds — bonds issued beyond the amount assented to by the taxpayers are mid — 1866, ehap. 398.</p> <p>Pursuant to chapter 398 of 1866, bonds of the defendant to the amount of $175,000 were; in 1870, duly issued by commissioners appointed in the manner provided in that act. By mistake an additional bond for $1,000, numbered 405, was issued by the commissioners to one David, who, upon the demand of the commissioners, promised to return the same, but failed to do so. The bond was purchased by the plaintiff in 1879, in good faith and for value. At that time the coupons, then already due thereon, had been detached from it and were not given to the plaintiff, although none of them had ever been presented for payment. The coupons falling due from July, 1879, to January, 1883, were on the bond when purchased by the plaintiff, and the amounts thereof were paid to the plaintiff with money furnished by the supervisor of the town, but not from money raised by tax on said town for that purpose.</p> <p>In this action, brought to recover the amount of two'overdue coupons:</p> <p>Meld, that the commissioners had no authority to issue the bond; that the plaintiff was chargeable with notice of that fact, and that the bond was void , in his hands.</p>

Appeals by the defendants severally from a judgment overruling, with costs, separate demurrers interposed by them to the complaint. This is an action on a promissory note made by the defendants, husband and wife, to the plaintiffs, for the sum of $685, under their firm name of J. P. Kinney & Co. The complaint alleged that the ■said note was given for materials which were furnished for and did benefit the separate estate of the defendant Frederica M. Kinney.

■ Appeal by the defendant John T. McGowan, individually and as receiver, etc., from a judgment of the Kings County Special Term, adjudging that a certain mortgage had been paid and satisfied, etc. On October 11, 1810, one William Phraner was the owner of the premises in Brooklyn known as No. 22 Cambridge Place. On that day he, with his wife, mortgaged said premises to the Brooklyn Life Insurance Company to secure $6,000, which mortgage was-then duly recorded.

This action was brought to test the validity of the follow, ing ordinance, passed by the common council of the city of Brooklyn : “ SeotioN 15. The said railroad companies shall provide for every street car run in the city of Brooklyn on and after May 1, 1883) a conductor as well as driver, and no car shall be run without a conductor as well as a driver. “ Sec. 16.

<p>Hra/ud — a pa/rty cannot retain the benefit of a contract procured through fraud, although it be not committed by his procurement.</p> <p>'This action was brought to set aside a written instrument executed by the plaintiff, by which she released the defendant, her husband, from an obligation to pay to her the sum of $250 a year, which had been imposed upon him by a judgment for a limited divorce theretofore recovered by her. She sought to set aside the release upon the grounds that she received no consideration for executing it, and that it was procured by false'and fraudulent representations. Upon the trial the court refused to allow the plaintiff to show the falsity of representations made to her by one Holdridge, and that she received no consideration for executing the release, unless it was shown that Holdridge was then acting as the agent of her husband.</p> <p>Held, that this was error; that if the instrument was procured through fraud the husband could not avail himself of the benefit secured by it even although the fraud was unauthorized by him aqd committed without his knowledge or procurement.</p>

<p>Subscription to the stock of a railroad— when a payment by a certified check will be treated as a payment “in cash” — 1850, chap. 140, sec. 2.</p> <p>April 13, 1880, a subscriber for tbe stock of a railroad company, which, it was proposed to incorporate under chapter 140 of 1850, gave to one of the directors who was acting as treasurer a check drawn upon and certified by a national bank, which then held funds belonging to the subscriber sufficient in amount to pay the check. The check was deposited by the treasurer on the fourteenth and paid on the fifteenth of April.</p> <p>Held, that it was a payment “in cash” within the meaning of those words, as used in section 2 of chapter 140 of 1850, requiring ten per cent of the amount of the subscriptions to be paid “in cash” before the articles of association can be filed in the office of the secretary of State.</p>

<p>Employment of children in a dangerous business —1876, chapter 123, was repealed by section 292 of Penal Code.</p> <p>■Chapter 122 of 1876, prohibiting the use or employment of any child in any business or vocation injurious to the health or dangerous to the life or limb of such child, was repealed by implication by the passage of section 292 of the Penal Code.</p> <p>This section of the Penal Code does not prohibit the employment of children in a dangerous “business or vocation,” but only their employment in a dangerous “practice or exhibition.”</p>

The action was brought to have a deed of certain lands in West-chester county set aside and vacated, and decreed to be null and void, upon the ground that the same was void by reason of the relation of the parties thereto to each other, and that it was executed with the intent of defrauding the plaintiffs of certain alleged interests in the property.

<p>Will — authority to executors to awry on business — when no allowance should he made to the estate for rent of real estate used in carrrying it on — bad debts and ordinary expenses should be charged to income.</p> <p>A testator devised Ms entire estate, in five equal parts, to his executors and trustees and'directed them to pay over the net proceeds, after deducting expenses, etc., of one of such shares to each of his four sisters and a brother during their respective lives, and after the death of each to pay her or his share of the principal to her or his descendants.</p> <p>The will further provided: “I hereby authorize and empower my said executors, the survivors and survivor of them, to continue the business of brewing and malting which I am now conducting upon the same premises I now occupy in the city of New York, and with the fixtures and personal property connected therewith, for such time after my decease as they shall think most advantageous to my estate; and in continuing said business I direct that my brother John J. Jones shall take the general charge and management thereof, if he shall desire to do so, and in such case that he receive such portion of the profits made or realized therefrom for his services, care and attention in the management thereof as may be agreed upon between Mm and the other executors of this my will; and the residue of said profits shall be received by my said executors as part of my estate for,division and investment as hereinbefore provided.”</p> <p>Upon an accounting by the executors who had continued the business as authorized by the will:</p> <p>Held, that the executors were not chargeable with the rental value, if any, of the real estate belonging to the estate which was used in carrying on the business,' or with any rent therefor.</p> <p>That bad debts and losses incurred in carrying on the business should be charged to income and not to principal.</p> <p>That the cost of replacing and restoring personal property worn out and used up in the ordinary course of the business should be charged to the income and not to the principal.</p>

<p>Appeal from an order denying a motion to set aside a judgment, entered on an inquest taken at a circuit upon tbe failure of tbe defendant to appear.</p>

APPLICATION on behalf of the Thirty-fourth Street Railroad Company for an order appointing commissioners to determine whether the road should be constructed.

Case -agreed upon and submitted to tbe court for its decision under the authority o£ section 1279 of the Code of Civil Procedure.

The plaintiff brought this action in March, 1875, and sought therein to have the defendants adjudged to be liable, as stock-liolders in a foreign corporation, known as the New Jersey Steam Navigation Company, for an indebtedness of that corporation to him, on the ground that the corporation divided all its property and capital among the defendants and other stockholders, closed its operations and went out of existence by the expiration of its charter, leaving the plaintiff’s…

<p>Appeal from an order setting aside a requisition issued by the plaintiff to the sheriff of Orange county, directing him to take into his possession certain bonds and certificates, claimed by the plaintiff, in an action for the recovery of their possession.</p>

<p>Aliens — right to take lands hy descent under treaties made with the United States — ■ a treaty overrules all local statutes contravening it.</p> <p>A treaty between the United States and Wurtemburg provides that when, on the death of any person holding real property within the territories of one party, such real property would, by the laws of the land, descend on a citizen or subject of the other, were he not disqualified by alienage, such citizen or subject shall be allowed a term of two years within which to sell the same, which term may be reasonably prolonged according to circumstances and to withdraw the proceeds thereof without molestation and exempt from all duties of detraction.</p> <p>Seld, that the treaty intended to confer on the alien heir, for the period of two years, precisely the same rights he would enjoy if he were a resident heir, imposing upon him simply the obligation to sell and convey the fee to some other party capable of holding it within that period or such other period as the State or country should see fit to confer upon him hy prolonging the time, or to become, or declare his intention of becoming, a citizen of this country.</p> <p>That meanwhile he might possess and take care of the property, improve it and exercise all the authority of ownership, for the purpose of making it more productive and valuable, and might himself enjoy such rents and profits as he could obtain therefrom.</p> <p>That the treaty is, by virtue of the Constitution of the United States, a part of the supreme law of the land, and supersedes all local statutes that contravene its provisions.</p>

<p>Action for money had and received — when the payment of the money to the plaintiff, or by his authority, must he alleged and proved by the defendant.</p> <p>This action was brought by the receiver of a limited corporation to recover the ten per cent cash payments required by law to be made by the subscribers to the stock of the corporation at the time of their subscribing therefor. It was claimed that these amounts had been received by the defendants, as commissioners, licensed by the secretary of state, under section 4 of chapter 611 of 1875. The complaint alleged facts showing the receipt of such moneys by the defendants, and that they had failed to pay it over, and then added that the defendants had refused to pay it over and had converted it to their own use. Upon the trial the complaint was dismissed upon the ground that the plaintiff had failed to prove that the defendants had failed to pay over the money to the corporation.</p> <p>Held, that this was error; that it was only necessary for the plaintiff to show that money belonging to the company had passed into the possession of the defendants for its benefit, and any payment of such money to or under its authority must be alleged and proved by the defendants.</p>

, receiver of the partnership property of the plaintiff and defendant in this action, to punish the plaintiff for contempt in improperly interfering with such property, adjudging said plaintiff to be in contempt and imposing upon him the fine of $23,042.20 for damages, costs and expenses sustained by said receiver and the defendant John Eraser.

<p>Shipment of goods on a del credere commission — the title to the unpaid pwchase-money,for goods sold by the factor, remains in the shipper.</p> <p>In an action, brought by one Zoller against the firm of Groht & McLaren, claims due to the firm from two companies, and the sum of eighty-two dollars and ■ twenty-five cents deposited in a bank to its credit, were attached. The claims were due to, and the money was received by, the firm upon the sale of goods shipped to it by the plaintiff to be sold on a del credere commission.</p> <p>In this action, brought by the plaintiff against the sheriff to recover the amount received by him under the attachment:</p> <p>.Held, that the facts showed that the legal title to the claims and money was in the plaintiff and that he was entitled to recover.</p>

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

The action was brought to have the plaintiff declared entitled to receive a conveyance of a certain piece of land, and to compel the ■defendants to acount for the rents thereof.

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

<p>Execution against the person — when it may he issued to collect costs— Oode of Oivil' Procedure, sec. 550, sub. 4.</p> <p>In this action, brought by the plaintiff to annul and set aside a conveyance-executed hy her to her brother, the defendant, upon the ground that it was frauduiently obtained from her by him, a judgment was entered in her favor vacating the conveyance and awarding her costs. An execution against the person of the defendant having been issued for the collection of the costs under this judgment, the court below refused to set it aside.</p> <p>Meld, no error; that the execution was justified by subdivision 4 of section 550' of the Oode of Oivil Procedure.</p>

<p>Action to recover the amount of an assessment paid to a city — effect of Us voluntary payment, 'before the commencement of proceedings to vacate the assessment.</p> <p>This action was brought by the plaintiff to recover the amount of an assessment for a local improvement paid by her to the defendant. After the payment was made proceedings to vacate the assessment were instituted by the plaintiff and were subsequently decided in her favor.</p> <p>Held, that although the fact of such payment would have been a good ground for refusing to vacate the assessment, yet as the assessment was in fact vacated,. and no appeal from the order vacating it had been taken, the plaintiff was entitled to recover. (Davis, P. X, dissenting.)</p>

<p>Damages — exemplary damages cannot be given in an action for a bi'each of contract— the motives for its breatfi are immaterial.</p> <p>In an action to recover damages for a breach, of a written contract to transport cattle, the complaint alleged that the breach of the contract was willful, deliberate and without just cause, and demanded, in addition to the amount of damages alleged to have been actually sustained, a further sum of $3,000 as and for exemplary, punitive and incidental damages. During the trial the . theories of bad faith on the part of the defendants were presented to the jury and were the subject of comment by the presiding justice. The court refused to charge, as requested by the defendants’ counsel, that it was immaterial from what motives the defendants acted in neglecting or refusing to transport plaintiffs’ cattle; and that, even if the defendants had refused to transport the cattle solely from malicious motives, the plaintiffs could not, in this action, recover any additional sum for that reason. ^—</p> <p>Held, that it was error to refuse so to charge.</p> <p>That the error was not cured by the fact that the court had charged, as requested by the defendants’ counsel, that exemplary and punitive damages could not be given in the action, as no explanation was made of what was meant by exemplary or punitive damages.</p>

Appeal by Moses Metzger, from an order denying a motion to-vacate or set aside the appointment of a receiver of the property of the defendant.

Appeal by Rowland F. Hill from tbe appraisal and report of tbe •commissioners and from tbe order of tbe Erie Special Term confirming tbeir report. Tbe proceeding was taken pursuant to chapter 336, •of Laws of 1883, entitled “an act to authorize tbe selection location and appropriation of certain lands in tbe village of Niagara Falls for a State reservation and to preserve tbe scenery of tbe Falls of Niagara” as amended by Laws of 1884, chapter 109.

Levi Johnson, the husband of Jane A. Johnson, and the father of the appellant (whose name then was Eliza Johnson), made his. will in 1854, by which he gave to his wife the use, during her life, of his house and lot where he then resided in Auburn, and of all his personal estate, and from and after her death he gave the property to his daughter Eliza.

Appeal by tbe plaintiff from a judgment, entered upon the report of a referee. The action was brought to recover damages alleged to have arisen out of a breach of contract, alleged to have been made by the defendants, to sell to the plaintiff a quantity of lumber on credit, and which they afterwards refused to do except for cash. The complaint was dismissed on the merits.

Appeal by defendant from judgment entered on a verdict of a jury in tbe Monroe county court, and from an order denying a motion made on the minutes for a new trial.

JVIotioN by defendant for a new trial, on exceptions taken at tbe Cayuga Circuit, and ordered to be heard at the General Term in the-first instance. The action is one of ejectment to recover tiie possession of a parcel of land situated in the city of Auburn and adjacent to the water of Owasco river, and along it, and what had at one time been a canal supplied with water from the river, being bounded by them on the east.

Appeal bj defendant from a judgment, entered upon decision of the court at the Monroe Circuit.

Appeal by tbe plaintiff from a judgment, entered upon tbe ■decision of tbe Wayne county Special Term. Tbe action was in the nature of an ejectment to recover tbe possession of a bouse and lot situate in Sodus, in tbe county of Wayne, ■occupied by the defendants. Tbe premises in question are a part of a farm of which the plaintiff became the owner in August, 1874, by purchase at a sale on foreclosure of mortgage made by Benjamin F. Rogers, who bad formerly owned tbe land.

Appeal by the defendant from a judgment, entered on a verdict rendered at the Ontario County Court, and from an order denying a motion for a new trial. The action was brought to recover for the alleged conversion of a quantity of wool, and was originally commenced in a Justices’ Court where the defendant had judgment, and on appeal to the County ■Court a new trial was there taken and the plaintiff recovered $150.

Appeal by the defendants from a judgment, entered upon a decision made at the Orleans County Special Term. The action was brought in behalf of the plaintiff, and others in like manner interested who might come in, against the surviving executors of the will of Roswell S. Burrows, deceased, the devisees and legatees of his will, and the heirs and next of kin of the deceased having any right to share in the estate of the testator.

Appeal by tbe defendants from a judgment, entered on a verdict at tbe Erie Circuit, and from an order denying a motion for a new trial made upon a case and exceptions. Tbe action was brought upon an alleged contract for tbe sale and delivery of goods by tbe defendants to tbe plaintiffs and to recover damages for a breach thereof on tbe part of tbe defendants occasioned by their refusal to deliver.

Appeal by the defendant from a judgment, entered on the report of a referee. The action is to remove an alleged cloud upon the title to land, created by a deed made by the treasurer of Monroe county to the defendant, pursuant to a sale for unpaid taxes. The conclusion of the referee was that the deed was void. The plaintiff recovered judgment.

Appeal by the defendant from a judgment, entered on a verdict rendered at tbe Monroe Circuit, and from an order denying a. motion for a new trial made upon the minutes of the justice before whom the action was tried. The action was brought to recover damages for an assault and battery. Both parties claimed possession of a house in the city of Rochester. The alleged assault arose from an effort, and force used, to eject the plaintiff from the house.

On the 31st day of J anuary, 1881, Elizabeth J. Chase was the owner of the personal property described in the complaint in this action» On that day, for the purpose of securing the defendant for moneys which she then owed him, and for indorsements upon which he had become liable for her, she executed and delivered to the defendant a chattel mortgage upon said property. Said mortgage was duly filed on the 1st day of February, 1881, and refiled on the 9th day of January, 1882.

<p>OoNtroveRST submitted without action.</p>