Volume 45 — Barbour's New York Supreme Court Reports

APPEAL by the defendant from a judgment entered upon the verdict of a jury, and from an order made at a special term, denying a motion for a new trial.

mfflS action was brought to set asido and declare void a 1. sale of a quantity of merchandise made by the firm of E. Stone & Co. to the defendants, Stone &-Hall, in August, 1861. The cause was tried before his Honor Justice Allen, at a special term ^February, 1863, without a jury.

THIS was an action to recover damages of the defendants, who were bankers, at Scranton, in Pennsylvania, for omitting to present a note for payment at maturity, and charge the indorser, and for sending to the.maker an incorrect notice of the day the note fell due, in consequence of which, as was claimed, the maker omitted to .pay the note, and subsequently failed in business, whereby the plaintiff lost the note.

THIS action was to recover damages on a lot of cattle, 84 in number, delivered' to the defendants to be carried from Philadelphia to Hew York, which it is alleged were injured by the negligence of the employees of the defendants. The jury found a verdict in favor of the plaintiff, for #906.22.

The plaintiffs sued the defendant to recover from him damages for the non-delivery of a quantity of hops, on an alleged contract for the sale of them. The defendant, in September, 1862, wrote to one of the plaintiffs, that he had a lot of hops to sell, and asking what he could get for them.

IN this case the relator, claiming to be the holder of a lease of .premises on Eighth avenue in the city of New York, was sought to be removed from the- occupation of them on the ground that his term had expired. -The original owner, Hertzel, had leased the premises for five years from 1st May, 1861, which lease by assignment had passed to one Reynolds, who subleased the premises to Stover for two years from 1st May, 1864.

THIS action wap brought upon a bond given by the defendants, for the purpose of releasing the brig Jcichin from an attachment issued against her upon the application of the plaintiff to enforce an alleged lien for supplies, furnished said vessel by the plaintiffs. The supplies consisted of a hill of provisions, furnished by the plaintiffs for the brig JacJiin, for a voyage she was about to make from the port of New York to Trinidad.

.By resolution of the common council, of the city of Hew York, passed December 18, 1862. it was resolved “That Myndert Van Schaick and others have the authority and consent of'the common council, and permission is hereby granted to them to lay a double track for a railroad in the following streets, viz: From a point at■ the intersection of Park Bow and Broadway, near the southwesterly corner of the Park, thence along Park Bow to Chatham street; thence along Chatham street to…

rpHIS was an action brought by the plaintiff, as the widow I of Charles S. Matthews, to recover her dower in surplus moneys-arising from the sale of mortgaged premises under a decree for the foreclosure of a mortgage executed by her husband. By an order inade 'in that suit the whole of the surplus moneys were ordered to be paid over to the defendant Duryee, and the same were still in his hands.

HEARING-, on an order granted by Justice Peckham to show cause why an injunction should not issue against the defendants, the mayor, aldermen and commonalty of the city of New York, restraining them from granting to the New York and Harlem Railroad Company the- right to lay or construct a railroad track or tracks in any of the streets or avenues in the city of New York, and from authorizing said company to lay a railway or track in Fourth avenue, Madison avenue, Union…

<p>APPEAL from a decree of the surrogate of the county of Clinton, refusing to admit to probate an instrument purporting to be the last will and testament of James Pilling, late of the town of Ausable in that county, deceased ‘, which decree was made on the 31st day of December, 1863. The appeal was brought by Frank Pilling, a grandson of the testator, and only child of Harvey Pilling, deceased.</p>

THE plaintiff sued on a contract made by the defendant, of which the following is a copy: “New York, October8, 1863. For value received, the bearer may call on me for one thousand shares of the stock of the Cleveland and Pittsburgh Railroad Company, at one hundred and seventeen (117) per cent, any time in six months from date, without interest. The bearer is entitled to all the dividends or surplus dividends declared during the time to half past one p. m. each day.

<p>~y| OTIOH to set aside a verdict on account of the miscon- . JiL duct of the officer having charge of the jury.</p>

The complaint alleged, that on or about the 24th day of February, 1862, at the city of New York, in consideration that the plaintiff, at the request of the defendant, would sell to one Valentine Arrent, on a credit of three months, such goods as the said Valentine Arrent should desire to buy of the plaintiff, consisting of various kinds of liquors, the defendant promised to be answerable to the plaintiff for the payment by the said Valentine Arrent, for the price of the…

The plaintiff, Moses Taylor, was the owner of a piece of land, being a portion of a tract formerly owned by him which was ■ bounded by Nineteenth street on the north, by Seventeenth street on the south, by Tompkins street on the east, and by Avenue B on the west, and the title to which' tract, by means' of former conveyances from the owners of the upland and by grants of land under water from the Common Council of the city, had been vested in the plaintiff.

nnHIS cause was tried at special term, before Justice Muli- lin, without a jury. From his judgment directing a dismissal of the complaint, the plaintiffs appealed. The facts presented by the findings and evidence, are as follows: The plaintiff, Ellen W. Soule, in February, 1859, by virtue of a conveyance for a valuable consideration, from Jacob H. Mott and wife, held and owned all of Mott's interest in the lands belonging to the estate of John Hopper.

Motion to dismiss an appeal. In this action, which was brought by Robert Lane, and another, the plaintiffs recovered a verdict.

THIS was a motion made at special term for an order requiring the purchaser to complete the purchase hy him of land sold in this action. The object of the action was to partition property of Peter J. Bogert, who died intestate. Various objections were made to the regularity of the proceedings, which were overruled, and an ordei was made at special term directing the purchaser to complete the purchase made hy him. From this order the purchaser appealed. ,

IK 1835 a lease of a lot of ground in the city of Kew York was made to two trustees for the benefit of A. A. Mott, then a married woman, for twenty-one year», with two renewals for a like term, and a house was erected thereon. Afterwards the husband of Mrs. Mott died, and she was married again to A. J. Engel. After the marriage she and her husband, with her trustees, joined in a mortgage of the property to Miss Tracy.

<p>Appeal from an order.</p> <p>Robert J. Livingston, the relator, applied to the defendant Douglas Taylor, the commissioner of jurors for the city and county of Hew York, to have his name struck off from the list of jurors for 1864, upon the ground that he was a non-resident The defendant having refused to do so, the relator applied at special term for a mandamus commanding the defendant to strike the name of the relator from the list.</p> <p>The writ was granted by default, but subsequently the default was opened, and the judge decided that he had no power to issue the writ in such a case. The relator now appealed.</p>

The relator, De Lancey Kennedy, applied for a mandamus against the Manhattan Gas Light Company of the City of New-York, to compel them, to supply his building with gas. The grounds of the application and the defence are fully stated in the opinion.

<p>OTION tó dissolve an injunction. The facts sufficiently appear in the opinion of the court.</p>

HEARING upon the return to a writ of habeas corpus issued upon the, application of Robert Martin, who alleged that he was improperly detained as a prisoner, and restrained of his liberty by or under the direction of Major General Hooker, commanding the military department of the east, embracing the state of New York.

<p>The plaintiff, by an agreement in writing dated July 8, 1863, agreed to sell to the defendant a lot of land, with a hotel thereon, for the sum of $7000, of which $1000 was to he paid on the 1st of August then next, when a conveyance was to he made, and a mortgage given by the purchaser, for $6000. The agreement contained the following provision: “ Said party of the second part [the purchaser] also agrees to pay all taxes and assessments that shall be taxed or assessed on said premises from the date hereof, until said sum shall be fully paid as aforesaid.” On the 1st of August the plaintiff conveyed the premises to the defendant, according to the agreement. Held that by the provision in the contract respecting taxes, the parties intended the tax for the. then current year; and that the plaintiff having been compelled to pay a tax assessed upon the property in November, 1863, he could recover the same in an action against the defendant.</p>

THIS was an action for the wrongful taking and detention of a horse, in which the plaintiff claimed property - and the right to the possession, The answer justified the taking and detention of the horse by Mm, as sheriff, by virtue of executions issued against the property of Anthony and Theodore D. Yorks ; the answer alleging that the horse belonged to said Theodore D. Yorks.

A PPEAL from a judgment entered upon the report of a 1\. referee, in an action upon a promissory note, brought against Pliny B. Holdridge as maker and John Vickery as indorser.

THIS case comes before the court by. virtue of a certiorari, directed to Hon. 'John 0. Chumasero, county judge of Monroe county, to review the proceedings instituted by Stark-weather before said judge, under the statute in relation to summary proceedings to recover the possession of land.

PPEAL from a judgment entered upon the report of a referee, in an action for work and labor. The referee found, among other things, the following facts: 1. That on or before the 18th day of March, 1861, William 0. Ely owned, a glass factory in the village of Clyde, in the county of Wayne, H. Y., and as such owner employed the plaintiff, as master shearer, to work for him during what is termed “the fire,” at $55 per month, and house rent and fire wood.

THIS is an action brought by the. plaintiffs, who were forwarding and commission merchants, at the city of Troy, against the defendants for the non-performance of an agreement made by the agent of the defendants, in their behalf, concerning the freight and expenses of a certain canal boat. In the month of June, 1864, the plaintiffs sold to the defendants, through their agent, the canal boat A. H. Burch.

THE complaint in this action alleged, that upon a certain trial before a justice of the peace in Mamakating, between the trustees of school district Ho. 10, and the former trustees' of said district, the plaintiff was sworn as a witness and gave testimony on said trial material to the issue joined in' such action. That the defendant charged in reference to said evidence, that the plaintiff had sworn false.

The appellant was Rachel S. Lansing, and the respondents were Douw F. Lansing, executor, &c., and Jane Ann Lansing. On June the 23d, 1849, Peter Leversee made his last will and testament, and died July 10th, 1849.

THIS is an appeal by the plaintiff from a judgment of the Ulster county court, reversing a judgment of a justice of the peace of that county in his favor. ■ The summons by which the suit was commenced before the justice, was issued the 2d day of January, 1865, returnable the 12th day of January, 1864. It was also by mistake, dated in 1864 instead of 1865.

THIS was an appeal by the defendant from a judgment of the Ulster county court, affirming a judgment entered before a justice of the peace, in that county, in favor of the plaintiff. The defendant, as coroner of Ulster county, on the 22d and 30th days of January, 1862, employed the plaintiff, a physician, to attend at inquests, which services were worth $20 for each examination, making $40 for the two cases.

THE prisoners were indicted for robbery, and at a court of oyer and terminer held in and for the county of Rensselaer, in J une, 1865, and they were tried and convicted of that offense. Upon the trial each of the defendants was offered as a witness on his own behalf. The prosecution objected, upon the ground that the witnesses were incompetent and their evidence inadmissible, and the court excluded the witnesses.

<p>THIS is an appeal from an order of the special term, granting a peremptory mandamus against the defendants-, as railroad commissioners' of' the town of Summit, Schoharie county, Hew York, to compel them to subscribe to the assessment of $25,000, to the capital stock of the Albany and Susquehanna Railroad Company, and to issue bonds of the town therefor, according to the terms prescribed by law.</p> <p>The moving papers show the organization of the company; that the defendants are railroad commissioners of the town of Summit; that the requisite consent of the tax payers has been given authorizing them to subscribe $25,000 when $1,000,000 of stock is taken, &c. which has been done; and that said consent had been duly filed -in the proper town and county clerk’s office by the commissioners; and that upon demand, the commissioners refused to subscribe for the stock and to issue the bonds.,</p> <p>The opposing affidavits show that the consent was upon the condition that there should first be obtained town subscriptions to the stock, to the amount of $1,000,000, that the original consent, signed by the tax payers, had been altered in a material part by striking out the word town, so as to make it read subscriptions, generally, instead of town subscriptions, as it is claimed it was intended. The relators claimed that the proof on file was conclusive.</p> <p>The motion was granted, at special term, and the defendants appealed to the general term.</p>

The action was upon a promissory note, made hy the defendant, James Thompson and the defendant Hall as his. surety, dated December 11, 1854, for $284, payable-one year from date, with interest. From the report of the referee, dated March, 1864, it appears that James Thompson paid upon the note, in February, 1857, $225.57, and that the balance' upon the note at the date of the report, was $153.19, for which sum judgment was ordered against Hall.

<p>At common law, a carrier of passengers by water is liable for the value of the baggage of a passenger destroyed by fire, though the fire occasioning the loss may have happened without any want of skill, care or foresight on the part of the carrier.</p> <p>Under that law, the carrier’s liability extends to all losses not produced by the act of God, or the public enemies.</p> <p>This liability is not affected by the provisions of the act of congress, passed March 3, 1851. (U. S. Stat. at large, vol. 9, p. 635,) declaring that no owner of a ship or vessel shall be liable for any loss or damage which may happen to any “goods or merchandise” shipped thereon, by reason of fire happening to, or on board the ship or vessel, unless it is caused by the design or neglect of the owner.</p> <p>The terms “ goods or merchandise,” used in the statute, should not be so ex- ■ tended- as to exonerate a carrier from Ms common law liability for the loss of a passenger’s baggage by fire.</p>

<p>Our statutes of 1847, {chap. 450,) and 1849, {chap. 256,) by giving to the wife and next of kin of a person whose death shall have been caused’by the wrongful act, neglect or default of another, a right of action to recover damages therefor, in effect, declare a right in the life of a person to exist in his wife and next of kin, and make the w'rongful act, neglect or default by which his death shall be occasioned tortious, as to them.</p> <p>Such act, neglect or default has no such character, in the absence of the statutes; and as acts complained of as tortious must be such at the place of commission, an action can not be maintained by an administrator, under the statutes, if the death of the intestate, and the negligence causing it, occurred in tho open sea, beyond the territorial limits of the state of New York; for t]iere our statutes have no force or effect.</p> <p>Long Island Sound has always been open, as a part of the high seas, to the use of all nations, and the state has never attempted to restrict such use, or to exercise any control over it; and it is apparent from the boundaries of the counties adjoining it, that the state does not claim any jurisdiction over it.</p> <p>Jurisdiction over it was never acquired by treaty or grant.</p>

<p>Where the object of a voluntary association formed under a special act of the legislature was the improvement of the Wynant’s Kill stream, by increasing the head of water and regulating the flow thereof for the supply of mills, &c. thereon, by forming reservoirs, dec. and by such other works and improvements as would increase the usefulness of said stream, for milling purposes; and it was evident from the articles of association that it was intended that the association should be a continuous and a permanent organization; and ' the only condition upon which any of the associates could withdraw from the association was that they had ceased to be owners and occupants of the property in reference to which they had become members; but the articles provided that upon a sale or disposition of his privilege and upon giving notice to the secretary, of that fact, any associate might be discharged from all further liability, and his successor could be substituted in his place, upon signing the articles, and become a membef, subject to the same liabilities and entitled to the same privileges. Held that sales of their property, by some of the associates, and their withdrawal from the association, did not effect a dissolution of the association. , ></p> <p>Held, also, that the association was not dissolved by the withdrawal of two of its members, upon their objecting to a purchase of land made by the assoeia^ tion, and refusing to pay assessments, or to co-operate in its business and to participate in its proceedings; and that those members could withdraw only in the manner specified in the articles ; and could relieve themselves from the contract they had entered into, only by a sale of their property.</p> <p>Where a statute authorized trusts of property to be created for the benefit of persons owning or occupying mill privileges on a particular stream, and declared that the legal title and estate of any property so held in trust should be vested in the trustees, “ to he named in the conveyances or declarations of trust,” and in those who should from time to time be substituted or designated as trustees, in the manner to be provided in such conveyances; Held that a deed of land which the association represented by the trustees had purchased and paid for, and of which it was in possession, to “ the trustees ” of .the association, and their successors in office, without naming any such persons as trustees, was not absolutely void, in a case where the controversy did not arise directly with an individual contesting the title of the grantees; although it did not name the trustees, and although there was no provision in the deed, or in any declaration of trust as to the manner in which persons should tie from time to time substituted or designated as trustees.</p> <p>Held, also,, that the deed must be considered and interpreted in connection with the statute, and the articles of association showing the character of the trust intended and appointing trustees to carry out the purposes and objects designed to be effected.</p> <p>Where a statute authorized trusts of real property to be created for the benefit of persons owning or occupying mill privileges on a certain creek or stream, the objects of such trusts being the improvement of said stream by increasing the head of water and regulating the flow thereof for the supply of mills, &c„ on said stream, in the manner specified j and declared that the annual value or income of the property so to be held in trust should not exceed two thousand dollars; Meld that the terms “ annual value or income,” as used in the act, referred to the association itself, and not to its members individually; and did not mean the benefit which each member should derive from his mill privilege or business, but a collective value or income received by the association, as sucli, under the statute.</p> <p>That the legislature did not intend to include in the anunual value or income the increased value of the various manufacturing establishments upon the stream which derived an advantage from the improvements; or to estimate the market value of the privileges, and calculate the interest as the value or income; but that the design was to limit the annual value or income to the land obtained, the same as if it were used for any ordinary purpose.</p> <p>MM, also, that the purchase of real estate was evidently, contemplated by the ■ trust created, and the purpose for which it was authorized; and that if land was necessary to aid the association in the improvement of the stream, the statute authorized its purchase, and was amply broad enough to cover and sustain such an acquistion.</p> <p>And that if the acquisition of a lake was important in carrying out the improvements intended, the fact that certain farming lands were included in the purchase thereof, did not vitiate the purchase, where it appeared that the association was obliged to buy the whole in order to obtain what was deemed absolutely indispensable. •. ,</p> <p>That if the'purchase was made in good faith, and in the exercise of a judicious discretion, for the purpose of executing the objects of the association, it should he upheld and sanctioned.</p> <p>An assessment, made hy a voluntary association upon its members, for improvements made upon its property in pursuance of an act of the legislature, for the purpose of increasing the head of water in a stream and regulating the flow thereof for the supply óf mills,' &c. is not unjust, oppressive and inequitable, because it provides that each associate shall be liable in proportion to fhe height of the fall, instead of the quantity of water used by him; where it appears that the associates have by the articles of association consented to be assessed, and the plan of assessment was adopted after due deliberation, and was fully approved.</p> <p>In the absence of any allegation or proof of fraud, mistake or surprise, a court of equity will not hold such an assessment to he illegal and inequitable and for that reason refuse to decree a specific performance of the agreement to pay assessments, contained in the articles of association.</p> <p>In an action to collect assessments upon the members of an association, for improvements, a ruling of the judge, excluding the testimony of civil engineers tending to show that the purchases and expenditures for which the assessment was made did not proportionably advantage the defendants, and that the assessments made for them were unequal and unjust towards the defendants, is not erroneous.</p> <p>Where it was agreed, in articles of association, that parties who might cease to be owners or occupants should, upon written notice of the fact to the secretary, be discharged from all further assessments, and that their successors should, upon signing the articles, become members of the association; Held that the effect of this provision was to impose on those associates who remained, after any withdrawal and any neglect of the successor to become a member, the burthen of contributing their due proportion as previously agreed upon, to sustain the expenses of the association.</p> <p>Held, also, that it would not necessarily follow that a transfer of property by a member of the association, without a substitution of a successor, would destroy the plan upon which it was organized.</p> <p>That if a portion 'of the associates voluntarily paid the assessments due upon property originally liatie, under the articles of association, but not represented by an owner who was a member, such payment so.far fulfilled and carried out the principle of assessment agreed upon as to preserve the organization; and that members sued for their assessments could .not avail themselves of the objection that such voluntary payment Was illegal and unauthorized.</p> <p>Where, by articles of association, each of the associates severally bound himself to pay a ratable proportion of all Expenditures for the improvements made or to be made; Held that the undertaking was mutual, the covenants of the associates being made with each other. And that the liability arose on the promise by each party to the other, which could only be enforced by an • action among themselves.</p> <p>That those to whom the promise was made were the proper parties to bring the action. And that it was not essential that there should be a formal division of the interests of the associates into shares, where the proportions were agreed upon by the associates, in the articles, thus fixing the interest of each one, and the shares he represented.</p> <p>In an action to collect an assessment made by a voluntary association upon its members, for improvements, the court can not, by way of affirmative relief to the defendants, interfere with, or readjust the apportionment, or relieve them from the obligations which the award, and their own agreement, contained in the articles of association, have imposed upon them.</p> <p>Although members of an association have not enjoyed the full benefit of imr provements made, and have refused to participate further in the transactions and business of the association, and have sought to abandon their connection with it, they cannot be permitted thus to exonerate themselves from responsibility.</p>

The plaintiff, Jacob H. Martin, complained against the defendant, Jane Houghton, in trespass, for crossing his premises, after the defendant was forbidden. The defendant interposed by her answer: first, a general denial ; second, a license from the plaintiff to cross; third, that the public had a right to cross the path. The action was tried before a jury, who rendered a verdict in favor of the defendant. The additional facts appear in the following opinion.

THE plaintiffs in error, (Corey and Wright,) were found guilty of an assault and battery upon Sanford Brown, in the Broome county court of sessions, in December, 1864, and Corey was sentenced by that court to pay a fine of $10, and Wright was also sentenced by the same court to pay a fine of six cents. The record and exceptions taken on the trial in that court ’by the plaintiffs in error were brought before the Supreme Court by writ of error.

THIS is an appeal from a judgment of the county court of Albany county, affirming the judgment of a justice’s court.

THIS was an action tried at the circuit, before the court and jury, wherein a verdict was rendered for the plaintiffs subject to the opinion of the court at general term. The parties now move, the plaintiffs for judgment and the defendants for a dismissal of the complaint.

<p>CONTROVERSY without action, submitted under section 372 of the Codé. The following are the facts:</p> <p>On the 16th of March, 1865, George W. Cuyler, president of the First National Bank of Palmyra, acting for the plaintiffs, presented to the defendant, a corporation duly incorporated, and engaged in the business of transmitting messages and dispatches by electric telegraph for hire, over its line of wires, extending from the city of New York northwardly and westwardly, at its office in Palmyra, a certain dispatch written upon the ordinary blank of the defendant, and requested the same to be transmitted to the parties to whom the same was addressed, and paid for such transmission the fee charged by the • defendant, but did not pay for, nor request to have the same repeated. The blank and message thereon written were as follows:</p> <p>“No.— To all points,in the United-States and British Provinces'. Reg’d.</p> <p>United States Telegraph Company.—E. C. Fellows, Gend Supt., Syracuse, N. Y. W. H. Kirtland, Ass’t 'Supt. Rochester, N. Y. N. Randall, President, Syracuse, N. Y. S. 0. Hay, Secretary, N. Y.</p> <p>In order to guard against errors or delays in the transmission or delivery of messages, every message of importance ought- to be repeated by being sent back from the station to which it is directed to the station from which it is sent, and compared with the original message. Half the tariff price will be charged for thus repeating and comparing. And it is hereby agreed, between the signer or signers of this message and this company th$t this company shall not be held re* sponsible for errors or delays in the transmission or delivery of this message, if repeated, beyond the amount of fifty dollars, unless a special agreement for insurance be made and paid for at the time of sending the message and the amount of risk specified in the agreement, and that in case this message is not repeated, this company shall not be held responsible for any' error or delay in the transmission or delivery of same beyond the amount paid for transmission, unless specially insured, and the amount of risk paid for and specified in this agreement at the time; nor shall this company' be held liable for errors in ciphers, or obscure, messages; nor for any error or neglect by any other company over whose lines this message may be sent to reach its destination; and this company is hereby made the agent of the signer of this message to forward it over the lines of other companies when necessary. No agent or employee is authorized or allowed to vary the terms of this agreement, or make any other or verbal agreement, and no one but the superintendent, is authorized to make a special agreement for insurance. This agreement shall apply through the whole course of this message on all lines by which it may be transmitted. ■</p> <p>Palmyra, March 16, 1865.</p> <p>Send the following message, subject to the above conditions and agreement:</p> <p>To Cammann & Co. No. 56 Wall street, New York.</p> <p>Buy us seven ($700) hundred dollars in gold.</p> <p>Geo. W. Cutler, Pt. 3</p> <p>No. 2. Please write your address under your signature.”</p> <p>Cuyler had on hand at his office a lot of these blanks, which the defendant had left there to secure business, and took the blank in question from amongst the others and wrote the dispatch upon it. But neither Cuyler nor the plaintiffs had ever read the printed portion of said blanks. The message thus delivered was 'duly transmitted from the office at Palmyra, as written; but by some error of some of the de-* fendant’s operators working between Palmyra and New York, the precise cause of which is unknown, it was received in New York and sent and delivered to Cammann & Co. in the following form: “To Cammann & Co., No. 56 Wall street, New York. Buy us seven thousand dollars in gold> Greo. W. Ouyler, Ft.”</p> <p>In consequence óf the receipt of this message, Cammann & Co. immediately, on the same day, purchased on account of the plaintiffs $7000 in gold coin, and paid for the same the then market price of $1.71 in legal tender notes for each dollar in gold. As sooq as possible after the discovery of the error, the plaintiffs notified the defendant of the same, and of the purchase, and tendered to the defendant the gold so purchased, at the price which had been paid, and gave notice that unless the defendant elected to accept said’ gold at the pirice paid, the samé would be sold in the public market for the highest price and the defendant held liable for the loss. The defendant refused the tender, and the gold was accordingly sold at the best market price, which- was $1.51f in legal tender notes, by which a loss was sustained of $1244.25.</p> <p>The plaintiffs seek to recover the amount of this loss, with interest.</p>

THE defendant, who is a farmer residing at Barrington, Tates county, made a contract on the 26th day of June, 1860, at his residence, with the plaintiff’s agent to sell the wool of his flock, (not at that time sheared,) to the plaintiff, at 47-|- cents per pound, payable on delivery of the wool to the plaintiff’s agent at Hammondsport. .

The complaint alleged the incorporation of the defendant. That its railroad runs in a southwesterly direction from the city of Rochester, passing through the town of Grates. That there is a highway running westerly from the city of Rochester, which is crossed by the railroad a short distance from the west line of the city, upon a level with the railroad.

CERTIORARI'to a justice of the peace to remove proceedings instituted by the defendant as landlord, against John J. Hubbard, as tenant, to recover summary possession of certain premises. The facts were these: The plaintiff entered into an agreement with the defendant on the 1st day of Decémber, 1864, to work for the defendant on a farm for one year, and the defendant was to furnish him a house to live in, a garden spot, pasture for one cow, fire wood, &c. and to pay him $270.

<p>THIS action was brought by the plaintiff against John Carpenter, John J. Swartwout, Albert I. Van G-order,. and the appellants, to obtain relief in consequence of the entry of a judgment, by confession, in the county of Schuyler before .it became a county, and to enforce an equitable lien created by the agreement under which the confession of said judgment was given. The action was tried at a special term held in Penn Tan by Hon. H. Welles, Justice, on the 2d of J une, 1862. The facts set forth in the complaint and as found by the court are substantially as follows: That prior to the 14th of July, 1855, the plaintiff and the defendant, John Carpenter, had been in the business of purchasing stock for the eastern market. On the 14th of July, 1855, John Carpenter was indebted at the banks in the sum of $5000, secured by the indorsement of Delazon J. Sunderlin, Benson Smith, Bice Tompkins and Benjamin Carpenter. On the 14th of July, 1855, the plaintiff held two notes against J. Carpenter for money lent, upon which there was due $450. J. Carpenter at the time was the owner of real and personal property to a large amount. D. J. Sunderlin was liable as indorser for J. Carpenter on two notes for $1000 each, held by the bank of Havana, one jDast due, upon which had been paid $400 ; the other was about to fall due. On said 14th of July, Sunderlin, Smith, J. Carpenter and the plaintiff met at Elmira, when a settlement was made'between the plaintiff and J. Carpenter, and there was found a balance due the plaintiff of $452. It was then and there agreed between the parties present, Smith, acting for himself, B. Carpenter and Bice Tompkins, the appellants, that in consideration that the plaintiff would assume and pay the note indorsed by Sunderlin, then about to fall due at Havana,, for $1000, J. Carpenter should and would confess a judgment to the plaintiff for $1450, the amount of said note and the balance due him; which judgment was to be entered so as to be the first lien upon Carpenter’s-property. Carpenter was to furnish Sunderlin with the means tootake up the note then past due. Carpenter was to confess a judgment to Smith, Tompkins and B. Carpenter for $3500, as an indemnity to them as his indorsers, and which was to be entered after the judgment to the plaintiff, and to be a junior lien. J. Carpenter, by the agreement, was to pay the plaintiff $1000 within ninety days, for which time execution was to be stayed upon the judgment to the plaintiff. In the meantime Smith, who at the time was engaged in manufacturing lúmbér from the timber on the lands of J. Carpenter, was to continue the manufacturing of said timber into lumber ufider his agreement with Carpenter, and the proceeds belonging to Carpenter were to be applied upon the notes indorsed by Smith, B. Carpenter and Tompkins for J. Carpenter. The plaintiff relying upon the agreement made, gave his note for $1000, payable at Havana in three months, which was indorsed by Sunderlin and H. G-. Wolcott, and delivered to Sunderlin to take up the note indorsed by him, about to fall due. In pursuance of the agreement, J. Carpenter furnished Sunderlin with the means to take up the note indorsed by him, past due. Two confessions of judgment were made by J. Carpenter; orle to the plaintiff for $1450,' and one to Smith, B. Carpenter and Tompkins for $3500, which confessions were then delivered to Sunderlin to be filed in the proper office, and judgment entered thereon as agreed. On' the same day Sunderlin went to the bank and paid and took •up the note indorsed by him, past due, and with the plaintiff’s note took up the note indorsed by him, about to fall-due. On the same day, 14th July, Sunderlin filed the confession of judgment in favor of the plaintiff in the clerk’s office of Schuyler county, and had judgment entered thereon, at the same time leaving the confession in favoT of Smith, B. Carpenter and Tompkins with said clerk, with directions to file the same the next business day and enter judgment thereon, which was done on the 16th, the 15th being Sunday. Smith, under and in pursuance of the agreemeht, continued to manufacture the timber of Carpenter into lumber up to the 15th of October, 1855, during which time the proceeds belonging to J. Carpenter amounted to $988, $402 of which was paid on the notes at bank indorsed by Smith and B. Carpenter for J. Carpenter, $300 of which was paid over to B. Carpenter, and the balance applied for J. Carpenter’s benefit, with his consent; the $1450 du'e the plaintiff remaining* unpaid and is still due and unpaid, with interest thereon, no part having been paid, and John Carpenter is wholly insolvent. Smith, within a day or two after the agreement at Elmira, informed B. Carpenter and Tompkins of the same and all that had been done, to which they made no objection. On the 18th of July, 1855, John Carpenter executed a bill of sale of a large amount of his personal property to B. Carpenter; in consideration of $3500 to be paid by B. Carpenter, by paying the notes at bank, for which the judgment had been confessed to him, Smith and Tompkins, which bill of sale was written and witnessed by Smith. That the bill of sale was made and taken in violation of the agreement of the 14th of July, and was fraudulent and void as against the plaintiff. That a day or two prior to the 14th of October, 1855, John Carpenter employed a number of men and felled three hundred of the trees standing upon his land, and on the 15th of October turhed the said trees and timber so felled, out to B. Carpenter and Tompkins to indemnify them as his indorsers upon the notes mentioned in the confession of judgment to them. That the cutting said trees and turning the same out, was a violation of said agreement, and was fraudulent and void as against the plaintiff. Execution was issued upon the plaintiff’s judgment, and’delivered to Swartwout, then acting as sheriff of Schuyler county, on the 14th day of October, 1855. On the 15th, Swartwout, as such sheriff, levied upon all the personal property of J. Carpenter, including the trees so cut as aforesaid. Soon after the levy the property was advertised for sale by the sheriff on the 27t,h of November, 1855, which was postponed by an order staying the plaintiff’s proceedings upon his judgment, which order was obtained by Smith, B. Carpenter and R. Tompkins.' On the 1st of December, 1855, notice of motion was given on' the part of Smith, B. Carpenter- and Tompkins to set aside and vacate the plaintiff’s judgment and execution, with an order staying the proceedings, which order was subsequently modified so as to allow a sale under the execution, the sheriff to retain the proceeds or bring them into court. On the 29th of February, 1856, the property levied upon was sold by Albert I. Yan Gorder as deputy under Swartwout, sheriff, amounting to $1144. - The property sold for its full value, except one horse claimed by Mrs. Carpenter, which sold for $29, worth $110, and was purchased by'the plaintiff. $903 worth of property went into the hands of Smith and Tompkins, for which they gave their note to the deputy, payable to the sheriff, and which still remains unpaid. Smith and Tompkins took possession of the property and sold and converted it to -their own use. The - plaintiff purchased property at the sheriff’s sale to the amount of $85, for which he gave his note to the sheriff, and which is unpaid and remains in the hands of Yan G-order, the deputy. The 13th of December, 1856, an order was made at general term, on motion, on behalf of Smith, B. Carpenter and R. Tompkins, vacating and setting aside the plaintiff’s judgment and execution, upon the sole ground that the act of 1854, erecting the county of Schuyler, was unconstitutional. On the 10th of March, 1863, there was due from Smith and Tompkins, on their note given to the sheriff, $1347.21. At' the time of the sale by the sheriff there was in the hands of Smith $116, arising from the-sales of a part of the lumber levied upon, and which still remains in the hands of Smith. Upon the facts aforesaid the court, as a conclusion of law, found as follows : 1st. That under the agreement of the 14th of July, made at Elmira, the plaintiff obtained an equitable lien upon the property and effects of John Carpenter, as against him and the defendants, Smith, B. Carpenter and Tompkins, which entitled the plaintiff to preference and priority over all subsequent liens which they might have upon the property levied upon. That under said agreement, and in consideration of which, the plaintiff gave his note to take up J. Carpenter’s note at bank, indorsed by Sunderlin, for $1000; in pursuance of which, the confession of judgment by Carpenter to the plaintiff was given and should have the same force and effect in equity as if the same had been filed and judgment entered in the proper county; what was agreed to be done should be regarded as done. That the plaintiff was equitably entitled to the proceeds arising from the sheriff’s sale, and that said proceeds should be paid over to him. That the plaintiff should have judgment against Tompkins and Smith for the sum of $903, the amount of their note to the sheriff, with the interest thereon to 10th of March, 1863, amounting to $1347.21. That the plaintiff should have the further judgment against the sheriff, directing him to deliver and pay over to the plaintiff all proceeds arising from said sale. And that the plaintiff have judgment against Benson Smith for $116, and the interest from 29th of February, 1856, on account of the sale made by him of the property levied on prior to the sheriff’s sale, amounting to the sum of $173.60 on the 10th of March, 1863. That the plaintiff have judgment that the defendants, Smith, Tompkins and B. Carpenter be perpetually restrained, &c. And that the plaintiff have judgment against B. Carpenter and Tompkins for his costs and disbursements. The defendant John Carpenter died after the trial and before the decision, some time in the month of March, 1863. The judgment was directed to be entered as of the 10th of March, 1863, a day prior to his death. The findings and decision of the court were filed, and judgment entered with the clerk of Tates county on the 15th of March, 1864, as of the 10th of March, 1863.' To which the defendant Benjamin Carpenter and Bice Tompkins excepted, and appealed to the general term,</p>

THIS action was brought to recover the value of certain personal property mentioned in the complaint, which it was alleged the defendant had wrongfully converted to his own use. The answer sought to avqid responsibility on the part of the defendant, by alleging that he was the sheriff of Seneca county, and took the property, in his official capacity, as the property of one William O’Neil.

APPEAL by the defendant from a judgment entered upon the report of a referee. The complaint sets forth, that on the 7th of September, 1854, and for twenty years previous thereto, there was a certain insurance corporation established at Hartford, Connecticut, under a charter from that state, entitled The Protection Insurance Company, during all that time doing an extensive business at various places throughout the United States, and especially at St, Louis, Missouri.

HE legislature, by an act passed on the 23d of April, 1864, entitled, “An act relative to land devised hy John Tonnelle, deceased,” (Laws of1864, p. 732 ; amended in 1865, see Laws of 1865, p. 376,) empowered the Supreme Court, at a general or special term held in the city of Hew York, on the petition of Margaret E. Tonnelle and others, to, authorize the sale of certain lots on the northerly side of Eighteenth street in the city of Hew York, mentioned and described in the…

<p>Where a contract is made in another state, between parties subject to the laws of that state, in pursuance of which one of them draws a bill of exchange, in favor of the other, upon a person residing in the state of New York, the parties will be considered as contracting according to the laws of the former state, and the bill will not be usurious, unless rendered so by the laws of that state.</p>

THIS is an appeal from an order made by Justice Barnard on the 28th day of April, 1865, adjudging the defendant guilty of contempt, fining him $500, and directing his imprisonment until the fine was paid, and until he should cancel certain liens imposed upon the property of the relators by an assessment for the construction of a sewer in Eighty-sixth street, from the East river to the westerly line of Third avenue, and in Third avenue, from Eighty-fourth to Eighty-sixth…

MOTION to dismiss an appeal, on the ground that it was not made in time. The facts appear, sufficiently, in the opinions.

The action was for goods sold and delivered to the defendants as copartners. On the 1st of June, 1859, the defendants, being copartners under the firm name of D. & E. McDonald, were indebted to the plaintiffs in the- sum of $278.64 for goods sold and delivered. On that day the defendants gave to the plaintiffs the note of D. McDonald & Co. (a new firm) for that amount, payable two months from date.

<p>APPEAL from a judgment of the special term, setting aside a deed as fraudulent and void. The material facts appear in the opinion of the court.</p>

The order appealed from vacates and sets aside a judgment in the action, entered June 13th, 1863, and all proceedings thereunder, together with the order of reference entered in said action on the 27th day of February of that year, and all proceedings thereunder, with $10 costs of the motion.

<p>APPEAL from a judgment entered, upon the report of a referee. The object of the suit, and the material facts, appear in the opinion of the court.</p>

<p>Pabtieb.—Ihsubalíóe.</p> <p>Upon a policy of insurance against fire, issued to A., loss, if any, payable to B., the latter may maintain an action in his own name.</p> <p>The cases of Grosvenor v. Atlantic Eire Ins; Co. (17 N. Y., 391); Freeman v. The Fulton Fire Ins. Co. (14 Abb. Pr., 398) • and Fowler v. New York Indemnity Ins. Co. (26 N. Y., 425), explained.</p>

The action was commenced in a justice’s court, where a judgment was rendered in favor of the plaintiff for one hundred dollars damages, besides costs. From that judgment the defendant appealed to the County Court, and recovered judgment for costs.

fllHIS is an appeal, by the plaintiff, from a judgment enter--1 ed upon the findings of a referee. The complaint alleged that the defendant, who is an attorney at law, procured for the plaintiff a bounty land warrant for one hundred and sixty acres of land, and then converted it to his own use, or acted so negligently in the matter that the land warrant was lost to the plaintiff.

<p>On the 24th of December, 1855, the defendants made their promissory note for §300 payable to Jacob Coller, senior, one year after date, for money lent and advanced. On the 1st of April, 1859, the payee sold and transferred the note to John Coller. The latter died, in June, 1863, leaving a will, by which he appointed Jacob Coller, 2d, his executor, who, as such executor, after the death of the payee, brought an action against the makers, upon the note. The defendants set up the defense of usury. HM that one of the defendants was properly admitted as a witness in behalf of himself and his co-defendant, to establish the defense, by proving conversations and transactions between himself and the payee of the note at the time it was given.</p>

APPEAL by the defendants from a judgment entered upon the report of a referee. The action was brought against Edward Bradfield and Henry Roberts, for the foreclosure of a mortgage given by them. Lewis Roberts, Addison F. Roberts and Gk W. Burbank, partners composing the firm of L. Roberts & Go. were joined as defendants, and were sought to be charged with the deficiency, if any there should be, on the sale of the premises.

THIS action was commenced, to recover of the defendants for an alleged excess of interest upon a loan of $1000. The defendants answered separately, denying the complaint. April 15, 1857, the defendant, Harriet Mount, loaned the plaintiff $1000, of her own separate estate, at the legal rate of interest.

THIS was an action brought by the plaintiff, the Boman Catholic Bishop of Buffalo, to establish a destroyed will alleged to have been duly made by James Claffy, of Bochester, who died June 29,1863.

THIS appeal is taken from a decree of the surrogate of Hew York, refusing to admit to probate a will of Abraham E. Lawrence, as not sufficiently proven, and granting administration to persons claiming to be his heirs at law. The will proposed for probate was dated 9th December, 1839, and was executed in the presence of three witnesses, having the usual attestation clause.

<p>HE same question is presented in these cases, hut under different aspects. The actions were upon policies of insurance, hy which the defendants insured the plaintiffs against loss or damage hy lire, on merchandise contained “in the hrick store Ho. 360 Pearl street,” in the city of Hew York. The evidence showed that after the insurance was made, the insured rented a part of the premises, viz: the upper stories of the building, to other persons who carried on therein the business of putting together the frames of chairs Which had been made elsewhere. This was claimed to he a manufactory increasing the risk and bringing the case within the exception of the policy, that a manufacturing establishment or workshop should he considered as hazardous and extra hazardous, and the provision that if at any time during the existence of the policy, the risk should he increased by any means within the control of the assured, or hy the occupation of the premises for more hazardous purposes than are permitted by the policy, it should he void.</p> <p>In the first case, the court held that as the plaintiffs did not use or occupy any part of the building for a purpose prohibited hy the policy, and had no control over the same, they were not responsible for such use, and that they were not responsible for what was done in any part of the building not used or occupied by them, and over which they had no control, and the court directed a verdict for the plaintiffs,</p> <p>In the second case, the court held that the assured were bound to know what was going on in the building or premises named in the policy ; that the business carried on in the building was that of a manufactory; that the word “premises ” used in the policy included the portion of the premises where Sawrie & Osgood carried on their chair business, and that the conditions of the policy applied to them, The court in this case dismissed the complaint.</p>

THE relator was one of the deputy tax commissioners of the city of Hew York. As such he was entitled to receive a salary of $2000 per year, to be paid by the comptroller out of the county treasury. His appointment was on the 4th of May, 1859,1 On the 4th of May, 1864, new commissioners of taxes and assessments were appointed by the comptroller of the city of New York, under the supposed authority of the act of 1859, chapter 302.

Francis Child, the ancestor of the defendants, died in October, 1834, having made his will in December, 1826, which was unrevoked.

PPBAL from a judgment entered on the verdict of a jury. The plaintiff sued for barrels sold and delivered, alleging that one Prever made the sale and delivery to the defendant, and then assigned his demand to the plaintiff. The answer controverted the purchase and assignment. The issue was tried at the New York circuit, April 15, 1864, and the defendant had a verdict.

211,) creating a public fund or stock, to be denominated “ Market Stock,” for the amount of $75,000, for the erection of a public market, on certain property in the eigtheenth ward, purchased of J. C. Lowber.

The. action was upon a promissory note. The note sued on was lent by the maker to the indorser for his accommodation. He had it discounted by the plaintiff. When it became due, the indorser wanted to make a partial payment, and the note in suit was to be left in the bank to be collected by them. The maker was at that time absent from the state, and a new note could not be obtained for its renewal.

THIS was an appeal from a judgment entered upon the report of á referee upbn a second trial. The action was brought to reform two certain promissory notes given by the defendants to the plaintiff, so as to make them bear interest. The grounds on which the relief was sought were mistake and fraud. When the case was formerly before the court, the judgment in favor of the plaintiff was set aside because the referee had not found that certain facts existed.

THIS action was commenced more than six years after the cause thereof accrued, to recover the value of certain stone, alleged to have been sold and delivered by the plaintiff to the defendants, in the fall of the year 1854, and for damages to, and loss of boats used in the delivery of the stone.

THE plaintiff in error is under conviction for selling strong and spirituous liquors in quantities less than five gallons at a time, without having a license therefor granted, as provided hy the statute, entitled “An act to suppress intemperance, and to regulate the sale of intoxicating liquors.” (Laws of 1857, oh. 628.) By writ of error he brings hither the indictment, hill of exceptions and judgment of the court below.

THE plaintiffs are partners, doing business at Lockport. The defendants W. B. Bhoades and E. B. Post were partners at Auburn, and the defendant 0. Bhoades (the father of W. B. Bhoades,) was the chief confidential creditor. The firm was insolvent, and owed 0. Bhoades, for indorsements and loans, about $3000. In this state of things the firm ordered of the plaintiffs a bill of liquors for their grocery, at a credit of four months, on the 21st and 22d of October, 1861.

THE plaintiffs are co-partners and dealers in apples in the city of New York. In August,'in I860, Jacob P. Marshall, one of the plaintiffs, in company with Luther T. Norton, then- agent, came to the counties of Genesee and Erie to contract for fruit. They went to the agents of the defendants at Alden and Corfu and made arrangements with them to ship apples by rail from those stations, Norton was authorized to purchase and ship for the plaintiffs.

THIS was an action brought by the plaintiffs and others, stockholders of a mutual insurance company, in hehalf of themselves and other stockholders who were interested with them in the same question, and who should elect to come in and contribute to the expenses of the suit, to compel the de^ fendants to readjust their dividends, on the ground that their officers had adopted a .wrong principle in issuing certificates of earnings.

The action was upon a promissory note made by John E. Scovil, the defendants’ intestate. Defense, the statute of limitations. The jurors found a special verdict containing these facts, viz: That the defendants’ intestate, on the 22d of April, 1857, made and delivered to the plaintiff a promissory note, hy which, on demand, for value received, he promised to pay the plaintiff, William It. Scovil, or order, twenty-five hundred dollars, with annual interest.

Demurrer to complaint. This action was brought by Edward J. Powers against John Shepard, to recover the sum of eight hundred and .fifty dollars, and interest, alleged to be due upon a written contract made by defendant with plaintiff to fill the quota of seventeen men, called for the United States, from the town, of Shasta, Livingston County, New York, under call of December 19th, 1864, by the President.

THIS is an appeal from a decree of the surrogate'of the county of New York, dated June 2, 1865, admitting to probate a paper writing, alleged to be the last will and testament of Edwin P-. Christy, deceased. The contestants and appellants are the widow of said Christy, deceased, and Edwin B, Christy, his only surviving son, and who is the only next of kin and heir at law.

MOTION by judgment creditors of the defendant Heydrick to vacate a judgment entered on confession, on the ground of irregularity. The error's alleged were: 1. That there] was no signature to the statement of indebtedness. 2. That -the statement was not duly verified by the oath of the defendant, he merely swearing, in the affidavit, “ that the facts stated in the above confession are true.” 3.

THIS was an application by the plaintiff for an order under section 244 of the Code, directing the defendant to pay him the sum of $30,962.50 which the defendant, in his answer, alleged that he had tendered to the plaintiff.

THE facts in this case, as proved on the trial, are not dependent on any contradictory testimony, and may he easily stated. George G. Genet was the holder of one hundred shares of the Pacific Mail Steamship Company stock, and applied to the defendants to loan him thereon $6,500, which they agreed to do.

11HE plaintiff sought to enforce a judgment rendered by . the Court of Chancery at Nassau in New Providence, directing the defendant to pay into the public treasury there certain moneys constituting a trust fund which he improperly withdrew and used for his own purposes. A judgment was rendered for the plaintiff, at a special term of the court, and on accounting ordered, with directions to pay the balance due into court.

THIS action was brought to foreclose a mortgage. The defense was a tender of the amount due, in United States treasury notes. The question was, whether the plaintiff was entitled to recover the principal and all the interest, or interest only to the time of the tender.

THIS was an action brought by the plaintiff as a judgment creditor of Joy & Webster, to reach and apply on his judgment certain moneys and property of Joy & Webster, alleged to be in the hands of their attorney, and of a party co-operating in bad faith with him, and by them to be fraudulently withheld from Joy & Webster and their creditors, in violation of the trust and duty of such attorney.

THI-S acSoñwás brought to foreclose a mortgage, made and executed by the defendant Alexander Pound to secure a portion of the purchase price of the premises described therein. The defendant Pound derived his title through a foreclosure sale made upon the forelosure of a mortgage previously given upon the premises by Lyman A. Spalding, another of' the defendants in this action.

<p>APPEAL from a judgment entered on the report of a referee, in an action brought by the assignee of a vendor, against the purchasers, to recover the purchase money remaining unpaid upon an agreement for the sale of land. The material facts are set forth in the opinion of the court.</p>

THIS action was brought to procure the satisfaction of a mortgage executed by the plaintiff together with his wife, and delivered to the defendant.

THE relator in this cause is a hanking association, organized and doing business in the village of Le Boy, in the county of Genesee, under the general hanking laws of this state. Its organization was effected on the fourth of December, 1838, and its business was carried on as a banking association until the first of May, 1865. At that time it had a paid up capital of one hundred and fifty thousand dollars.

THIS is an appeal by the plaintiff from an order of Justice Sutherland, granting a motion made by the defendant, Hazard, on the plaintiff's complaint and affidavits alone, on which the injunction was granted, to dissolve it. The case as made by the plaintiff in his papers stands, therefore, fully admitted.

THIS action was brought to recover the amount of a promissory note for one thousand dollars, bearing date May 30, 1863, made by the defendant John Wilson, Jr. payable to the order of himself thirty-one days after the date thereof, at the Bank of the Commonwealth.