Volume 45 — Howard's Practice Reports

The action was brought to have the defendants, who are the commissioners of the town of Webster, in the county of Monroe, perpetually enjoined and restrained from issuing the bonds of the town for the purpose of aiding in the construction of the railroad of “ The Lake Ontario Shore Railroad Company.” The facts constituting the alleged cause of action, as stated in the complaint, sufficiently appear in the opinion.

<p>It is now well settled in this state that an injunction cannot be sustained by one or more tax-payers to prevent the collection of a tax illegally imposed.</p> <p>- Consequently it cannot be sustained to restrain the future probable or possible imposition of such a tax which the tax-payers of a town may become liable to pay by reason of the unauthorized issuing of the bonds of the town for railroad purposes.</p> <p>If the proceedings of the assessors of the town appear to be in all respects regular and to comply with the statute, this court has no power by action to restrain the commissioners by injunction from issuing the bonds of the town, because the assessors may have predicated their conclusion upon facts failing to .warrant it.</p> <p>A different mode has been provided for reviewing and correcting the decision of the assessors; that is to be done by the writ of certiorari. The fact that the parties entitled to apply for the writ have omitted to do so until the right to it has been lost by lapse of time, will justify no change in the disposition which should be made of such application.</p>

This is a motion to set aside an order for arrest. One ground is that, as it is said, two causes of action are united in the complaint, on one of which the defendant could not be arrested. If this were the fact, it would undoubtedly be a reason for setting the order aside. The complaint seeks to recover money collected by the defendant as county treasurer; and the part of the complain fc which the defendant deems to be a second cause of action is the claim for interest.

’ 1 The complaint in the above action sets forth that on the 11th day of March, 1868, defendant was in the employment of plaintiff' as an express messenger, and, as such messenger on the Cincinnati, Hamilton and Dayton railroad, had possession of $20,000, which sum he there and then embezzled. The defendant’s answer traverses only the embezzlement; all other allegations of the complaint are admitted.

The plaintiffs brought this action to recover a balance due them for goods sold and delivered, for which it was claimed the defendants were liable, under the following circumstances: Plaintiffs had their transactions first with the firm of Semmler dé Strembel in 1868. Strembel retired from the firm and one Charles Greiff took his place, and the new firm continue the business under the firm name of Greiff & Semmler.

The complaint was for one quarter’s rent of the second floor and its appurtenances of No. 17 Union square, in the city of New York, from 1st August to the 1st November, 1872, amounting to $875.

This is an appeal from an order of the general term, supreme court (reported in 44 Howard P. R., 300), affirming an order of the special term (44 id., 64; 13 Abbt.

The action is for personal injuries sustained by plaintiff in consequence of being run over by a horse and wagon driven by defendant’s servant. The jury rendered a verdict for plaintiff for $1,500.

<p>Where the evidence on the trial showed that the plaintiff had title for many years, -as well of a timbered portion of his land as of the remainder, separated from the latter by a fence, and acts tending to show actual possession of such timbered land, while the defendant testified that the actual possession of such timbered land was held by himself, under an adverse title to the plaintiff, when the acts constituting the alleged trespass, for which this action was brought, were committed.</p> <p>Held, that this presented a direct question of faot for the consideration of the jury, and each party had the right to have it so decided. Consequently the court erred in granting the defendants’ motion for a nonsuit on this state of the evidence.</p> <p>The plaintiff, by opposing the motion for a nonsuit, did not thereby waive his right to have the case submitted to the jury without a particular request to the court to that effect, nor assume thereby that the question • was one of law only. It was otherwise with the defendants, f8r by their motion for a nonsuit they assumed that the case was a proper one for the disposition of the court; and that assumption was a waiver of their right to have it submitted to the jury without some specific request being afterward made in their behalf, provided they had not succeeded on then motion for a nonsuit.</p>

<p>Appeal from a judgment of the sixth district court.</p> <p>The facts sufficiently appear in the opinion of the court.</p>

<p>The contracts and promissory notes of married women are still invalid at common law, when not given in the cases allowed by the statute of March 20,1860.</p> <p>The fact that the defendant, a married woman, had, at the time of giving her promissory note in suit, an expectation to receive money upon tile death of her husband, upon an ante-nuptial agreement, does not make her note valid.</p>

This action was commenced before a justice of the peace to recover of the defendant on a special contract for work and labor, and on a general count for work, &c. The defendant put in an answer setting up the pendency of another action for the same cause of action. The cause was adjourned, and on the adjourned day the plaintiff appeared before the justice but the defendant did not.

This action -was brought by the plaintiff to recover the value of a horse belonging to him, which was killed by reason of the alleged carelessness and negligence of the defendants’ servant. On the trial the value of the horse was proved to be from $125 to $150. The jury found a verdict in favor of the plaintiff for sixty dollars, for which sum, together with costs and extra costs, amounting in all to $81.50, judgment was entered. The defendants appealed to this court.

<p>This action was brought for the loss of a package of silver coin, received by the American Merchants’ Union Express Company for carriage.</p> <p>The evidence on the trial established the following facts: In June, 1869, plaintiff’s agent purchased for account of the plaintiff from one Elliot, in Uewburyport, Mass., a lot of Haytien silver coin, worth $339.90 in United States currency, which price the company paid him therefor. Elliot was directed to forward the coin by express to plaintiff, at Providence, R. I.</p> <p>He packed the coin in a wooden box about seven to eight inches long, and about live or six inches high and wide. The box was made of three-fourths or seven-eighths boards. The coin weighed nearly nineteen pounds, and, with the box, about twenty pounds. The box was rolled up in heavy brown paper, tied with heavy .twine, and sealed with green sealing wax at every crossing of the twine,» and on the knot where it was tied, stamped with a ten dollar gold piece. It was directed to plaintiff, Providence, ¡Rhode Island, and delivered by Elliot to Gillett & Co., proprietors of the Newburyport ' and Boston Express.</p> <p>Nothing was said as to the charges on the box. Gillett fixed the charge at what he thought proper, and collected it from the defendant. He charged twenty-five cents, which was the ordinary charge for merchandise, and less than the ordinary charge for coin. Elliot testified that he told Gillett that the box was a valuable one, and that it contained silver; but Gillett denied it, and also denied any knowledge as to its contents. Gillett & Co.’s driver delivered the package at Boston to the receiving clerk of the defendant, who paid the driver Gillett & Co.’s charge; and the driver delivered it to the defendant in the same manner in which he was accustomed to deliver ordinary merchandise. The driver had not been informed by Gillett and did not know what the package contained, or that it was valuable, and did not state what it contained; nor was he asked any questions.</p> <p>¡Defendant’s office in Boston contains two counters or departments, about thirty feet apart; one intended for money or valuable packages, the other for ordinary merchandise. The merchandise department is nearest the door; and the clerk at that counter is accustomed to ask the value of packages brought to him, and to send persons bringing money packages to the other counter. He did not ask the value of this package, because the person who brought it was an expressman. He inferred that it was merchandise from the sum which the previous carrier had charged. The package left defendant’s Boston office about a quarter to three on that day, and was never heard of after that time. Search was made, but it was never traced, and defendant was never able to find it.</p> <p>Defendant also proved the custom of his company to take special care of money packages, and to charge a greater compensation therefor than for ordinary merchandise; that, by the act of the previous carrier in delivering it at the wrong counter, his company was led to believe, and did believe, that the package was not a valuable one, and was thereby led and induced to treat and care for the said package as ordinary merchandise, and not as a package of money, coin or valuables.</p> <p>At the close of the testimony on both sides, the court held that there was no question for the jury to pass upon, and directed the jury to find a verdict for the plaintiff for $407.39; to which ruling and direction defendant’s counsel excepted.</p> <p>The jury rendered a verdict as directed, and the court ordered the entry of judgment to "be suspended, and the exceptions to be heard in the first instance at general term.</p>

The action was brought upon a promissory note made by the defendants and payable to the plaintiffs.

<p>The act recently passed by the legislature of 1873, called “The habitual criminal act,” is not unconstitutional, as violating that provision of article 1 of the constitution, which declares that “trial by jury in all cases in which it has heretofore been used, shall remain inviolate forever.”</p> <p>Mor does the act violate that provision of “the constitution which declares that “noperson shall be subject to be twice put in jeopardy for the ■ same offense,” but is valid so far as any constitutional objection is concerned.</p> <p>Construction of the act, and the duty of officers to make arrests under it, stated.</p> <p>The act contains the following clause : “And that he or she has, at some time, been convicted of any of the crimes herein named.” In the case of the defendant Warner, there was an absence of any evidence that he had ever been convicted of any crime, as required by the act, and he was therefore discharged.</p> <p>This act does not require a rehearing of the case by the court of review, but only of the evidence. The whole of the evidence and the proceedings may be brought up (as in this case) by certiorari, and the rehearing had upon the record.</p>

This was an action to foreclose a mortgage given by the railroad company in April, 1852, to the plaintiffs, as trustees, to secure an issue of bonds to the amount of $1,000,000.

The action was by the plaintiff, the chamberlain of the city, to restrain the defendant, who claimed to be deputy chamberlain under an appointment by the comptroller, from intruding upon the office. An injunction was granted and continued by the special term. From this order the defendant appealed.

<p>The statute of 1860, allowing a tenant to abandon the demised premises when they become untenantable without any fault of his, does not apply to the letting of the premises with a full knowledge that the premises are to be rendered untenantable, and with a view to occupancy while in that condition.</p>

<p>Where the evidence is sufficient to show that deceit has been used for the purpose of bringing a person within the jurisdiction of this court, that he may be served with a summons and thus subjected to an action in this court, thé service of the summons will be set aside and vacated.</p>

<p>This is an appeal from an order made at special term, requiring N. Hill Fowler, an attorney,- to pay to Wilmerdings & Mount the sum of $963 T9^-, with interest from the 14th December, 1869, and in default of such payment an attachment issue against him.</p> <p>On the 14th November, 1866, one Mentheim Lowenstein consigned to Wilmerdings & Mount, auctioneers, a lot of merchandise, which realized, after deducting advances and expenses, $963.36. This sum Lowenstein sold and transferred to Bernard Rice. On the 27th November, 1852, Nathaniel H. Fowler and others, being the same N. Hill Fowler, recovered judgment against Lowenstein for $804.85. In 1867 proceedings supplementary were instituted against Lowenstein on the Fowler judgment, and a receiver was appointed. Wilmerdings & Mount were served with a copy of the order of the appointment of such receiver, with notice not to pay over the money. A suit was then commenced against Wilmerdings & Mount by Lowenstein’s assignee, Bernard Rice. When the suit was commenced Fowler assured the attorney for Wilmerdings & Mount that there was a good defense to the action, and furnished certain papers which tended to establish it. During the pendency of the Eice action one of the firm of Wilmerdings & Mount was examined ex parte in proceedings supplemental by Fowler on his judgment and an order procured from judge Barnard that said firm pay forthwith to said Fowler the sum standing to the credit of said Lowenstein. Fowler suppressed the fact that a suit was then pending against Wilmerdings for the same sum. The action of Eice against Wilmerdings & Mount was tried and resulted in a verdict against them. A motion was then made before judge Ingraham that Fowler pay over the money he received from Wilmerdings & Mount or that an attachment issue. This motion was denied. An application was then made for a reargument on the ground that ¡Nathaniel H. Fowler and ¡N. Hill Fowler were one and the same person, and the motion was granted, and an order made that he pay the money and in default thereof an attachment issue. The defendant appealed to the general term of this court.</p> <p>First. ¡N. Hill Fowler obtained the money in bad faith, and by suppression of the fact that there was a suit pending against Wilmerdings & Mount for the same sum he obtained from them. A party may be as guilty of a fraud by suppressing the truth as by expressing a falsehood. The fraud he perpetrated accomplished his object.</p> <p>Second. In all .cases of this nature the remedy is by attachment against the attorney (In the Matter of Knight, 1 Bing., 91; S. C., 8 E. C. L. R., 259; In the Matter of De Wolf, 2 Chitty, 68; S. C., 18 E. C. L. R., 25; In the Matter of Executors of Aitken, 4 B. & Ald., 47; S. C., 6 E. C. L. R., 344; In the Matter of Lawrence, 2 Smale da Gifford, 372; In the Matter of Blake, 2 Ellis & Ellis, 34; Cretwell agt. Fosbrook, 1 Jurist, 755; People agt. Wilson, 5 John. R., 368; Ex parte Staats, 4 Cow., 76; In the Matter of S. D. Dakin, 4 Hill, 42; Butler agt. Wehle, MS.</p> <p>Third. The defendant could have been proceeded against criminally. The Revised Statutes declares that “ any counselor, attorney or solicitor who shall be guilty of any deceit or collusion with intent to deceive the court or any party shall be deemed guilty of a misdemeanor, and on conviction shall be punished by fine or imprisonment, or both, at the discretion of the court. He shall also forfeit to the party injured by his deceit treble damages, to be recovered in a civil action (2 R. S., 287, § 68; 2 R. S., Edm. ed., 298, § 68).</p> <p>Fourth. The case of Langley agt. Warner (3 Comst. R., 327), which will be relied .on by Fowler, has no application to the case at bar. In that case the plaintiff brought an action against Warner to recover moneys that Walsh had paid over to him from a judgment which Walsh had obtained against Langley, and which judgment was afterward reversed. The question in that case was one of agency, and did not involve the question of the liability of an attorney wKo had' received moneys fraudulently.</p> <p>Fifth. It is submitted that the order should be affirmed, with costs.</p> <p>First. The supplementary proceedings, and the proceedings against Wilmerdings & Mount, were and are in every particular proper and lawful (Gibson agt. Haggerty, 37 N. Y. R., 555; Code, §§ 292, 294, 297).</p> <p>Second. If the order, under which the respondents paid the money, was void, or they paid it under duress or by mistake, its return can only be had by an action at lam (1 Hill, 343; 2 Comstock, 83; 4 Parker, 45).</p> <p>Third. Whatever money the appellant collected was collected by him as attorney and paid by him to his client, Bamburger, less his fees, long prior to the making of this motion. Fowler swears to it, unequivocally to it (Langley agt. Warner, 3 Comst. R., 327).</p> <p>Fourth. If the order, under which the money paid, was-erroneous or illegal, the only remedy the respondents had was either to have appealed from, it or moved for its modification or vacation. They have done neither.</p> <p>Fifth. Supplementary proceedings may be instituted in the name of a judgment creditor, although the judgment be assigned (2 Abbott, 457; 1 Code R. [N. S.], 91; 18 Howard, 96; 3 Sandf. R., 676).</p> <p>Sixth. It is respectfully submitted that the order appealed from should be reversed with costs.</p>

<p>In an action to recover, a debt against a debtor who has been discharged therefrom in bankruptcy, in every case the action must be founded upon the precise and positive new promise made after the discharge, and the original debt is to be considered merely as the consideration that gives validity to the new promise.</p> <p>It follows that inasmuch as under the Code the plaintiff is required to set out the facts constituting his cause of action, and nothing else, the said new promise must be specially pleaded as the basis of the action.</p>

The relator had been appointed by the judge of the superior court, at a general term, on the 21st day of January, 1870, crier of the superior court, and had performed the duties of his position, and was still performing the same with the consent and- approbation of the judge of said court at the time hereinafter mentioned.

The plaintiff was appointed by justice Lane on the 16th day of March, 1870, janitor of the sixth district court of the city of New York, in pursuance of the provisions of a resolution of the common council of the city of New York, authorizing such appointment, passed and approved March 15th, 1870. He,- thereupon entered upon the performance of his duties and was paid therefor up to January 1st, 1872, at the rate of $1,500 per annum. Subsequently payment was refused.

<p>Under the Code there is no necessity of a cross-bül in any case unless it is to bring in other parties.</p> <p>• The testator, William Gray, died in the city of New York in the year 1858, leaving him surviving his widow, Sarah Gray, and his two sons, Henry M. Gray and William M. Gray, his only heirs-at-law. By his will he made his widow the executrix, and gave to her all his estate, to be used and enjoyed by her during her natural life, or so long as she remained his widow.</p> <p>The will also contained a provision that “ should my widow marry again she will be entitled to and receive from my estate, should she demand it, $8,000, * * * the possession and management of the estate at her second marriage to pass from her hands and to be transferred to my sons, subject to the following restrictions:</p> <p>“ 1. The principal to remain entire until my son, William M., shall have reached the age of forty years, which will be in February, 1866. * * * Should both my sons die before their mother, leaving no children, then at her death the estate shall be sold and the proceeds divided into two equal parts, the one-half to my widow, to be distributed as she may have by will directed, the other half to be shared equally by the American Bible Society and by the American Colonization Society.”</p> <p>The testator died seized of the premises known as numbers 101 and 103 West Eleventh street, in the city of New York, and of personal property. The latter was sold by the executrix and converted into money.</p> <p>Henry M. Gray died September 21,1863, unmarried and without issue, and leaving a will whereby he gave all his property to his brother, William M. Gray.</p> <p>William M. Gray died in October, 1869, unmarried and without issue, leaving his last will, which was proved as a will of real and personal estate. The executor thereof and the devisees thereunder are parties to this action.</p> <p>Sarah Gray died October 21, 1871, leaving her will, which was duly proved and letters testamentaiy issued thereon to the defendant, Sarah Stark, and John Crolius.</p> <p>After the death of her sons, Sarah Gray by deed dated May 17,1870, for o nominal consideration, conveyed all her right, title and interest of, in and to the premises 103 West Eleventh street to Sarah Stark.</p> <p>There was no executor, trustee or other person in life, having power to sell the said lands in pursuance of the will of William Gray.</p> <p>The questions involved in the construction of the will are, 1st. Could the absolute power of alienation, under the provisions of this will, possibly be suspended for more than two lives in being? 2d. What interest, if any, did Sarah Stark take under the deed from Sarah Gray to her of the premises 103 West Eleventh street?</p> <p>Held, that it was the intention of the testator to provide that in case Sarah Gray remarried and William M. Gray lived until he was forty years of age, the estate should not be sold until he should arrive at that age; that the limitation was only intended to apply in case William M. Gray attained the age of forty years. Such a limitation would not be within the prohibition of the statute. If it had been intended that the limitation should extend to February, 1866 (which would be within the statute), there would have been no mention made of the age of William M. Gray.</p> <p>On the death of the two sons without issue, before their mother, then at her death the will provides that “the estate shall be sold and the proceeds divided into two equal parts, the one-half to my widow, to be distributed as she may have by will directed, the other half to be shared equally by the American Bible Society and by the American Colonization Society.”</p> <p>Held, that there was no question but that the two societies have the right to claim that the estate shall be sold, and that they are entitled to receive one equal half part of the proceeds of such sale.</p> <p>Mi’s. Gray, upon the death of her two sons without issue, had, by the will, conferred upon her, she being a tenant for life, a general and beneficial power to devise the inheritance, and thus was brought directly within the provisions of the statute giving her an absolute power of disposition of one undivided half of the estate. This absolute power of disposition being unaccompanied by any trust, and no remainder being limited upon her estate, being grantee of the power, she by the statute became entitled to an absolute fee in the one undivided half of the estate. Thus entitled, she made a conveyance, by which she conveyed to the defendant, Sarah Stark, in fee, the house number 103 West Eleventh street.</p> <p>But Mrs. Gray’s interest in the estate was an undivided interest, and she could not partition the estate of her own will. Therefore all she could convey was such undivided interest, and in attempting to convey to Sarah Stark the whole interest, she conveyed more than she had. But her conveyance was not for that reason void, but carried all she had a right to convey, one equal undivided half interest, the title to which became vested in Sarah Stark.</p> <p>Under the will of Sarah Gray the two above named societies became entitled to claim from her estate the amount of the bequest to them, being .$1,489.06 to each.</p> <p>It was, therefore, ordered and directed that the real estate in question be sold in separate parcels by a referee and out of the proceeds should be paid certain expenses and costs.</p> <p>The net proceeds of the sale of number 103 West Eleventh street to be paid by the referee, one-half to Sarah Stark, one-quarter each to the two societies. The net proceeds of the sale of number 101 to be paid, one-quarter each to the two societies, and the remaining one-half to be paid into court to await the further order of the court.</p>

This action is one in the nature of a bill in equity, and the relief which is sought would have been, under the former practice, the subject of a bill in chancery.

<p>A justice of the peace, holding a court of special sessions, has jurisdiction and authority to punish a person as for a criminal contempt of such court, for willfully and contémptuously refusing to be sworn as a witness by or before such court, or by or before such justice, while holding such court as a justice of the peace, he having been duly subpoenaed as a witness.</p>

This case comes on for hearing upon the plaintiffs exceptions to the order of the judge before whom the action was tried, dismissing the complaint. The exceptions were directed to be heard in the first instance at the general term, and judgment in the meanwhile to be suspended. Exceptions on dismissal of complaint ordered to be heard in the first instance at the general term. The plaintiff employed one.

<p>Where a testator devises to his daughter, A., the use of $1,000, during her life, and after her decease directs that the same be paid to her-children, it is not a devise of the $1,000 to the children of A., but of the whole amount of the legacy, and an absolute disposition thereof upon the death of A. to and for the benefit of her children..</p> <p>In such case the legacy does not become vested in the children where they die before the mother, and where they all die in infancy, before A., the mother, the legacy lapses upon her death and passes to her heirs.</p>

Appeal by the plaintiffs from a judgment entered on the report of a referee. The facts sufficiently appear in the opinion of the court.

<p>Thefoi'eible examination (under an order of the coroner) of a female prisoner hy physicians, for the purpose of obtaining evidence that she had been pregnant and had been delivered of a child within two or three weeks previous, was in violation of the constitution, which declares that 1 ‘ no person shall be compelled, in any criminal case, to be a witness against himself.”</p>

<p>Where the plaintiff was taxed for village purposes, by the authorities of the village of Owego, Tioga county, N. Y., which was assessed and levied under the provisions of the acts of 1851 and 1854, and the assessment was partly for debts incurred before the enlargement of the village boundaries by the act of 1857, and partly to meet the expenses for village purposes subsequently, the estimate for such tax being prepared for 1858, and submitted to a meeting of the electors pursuant to the áct of 1851, but not being in detail showing the sums necessary for each object of expenditure, but a general estimate for the sum of $1,000:</p> <p>EjM, that the estimate for a mere gross amount was sufficient, and a substantial compliance with the statute, and the electors had authority to vote the tax in that manner. Besides, such authority does not depend upon the form in which the estimate is prepared and submitted to them by the board of trustees, consequently the tax was legally assessed under the provisions of the act of 1851.</p> <p>The plaintiff was not a resident or property-holder within the limits of the corporate village of Owego before the passage of the act of 1857, but if that act was valid and operated to amend the village charter he became such by force of it. . The title is “ An act enlarging the boundaries of the village of Owego in the county of Tioga.”</p> <p>. Held, that although the title or preamble of a statute may be said to be no part of it, yet it may be used to enable the courts to arrive at the intention of its framers, and the intention was clearly in this case to amend the old charter, and not to create a new corporation, with none of the powers of a municipal corporation.</p> <p>Also held, that the twofold objections to the constitutionality of this act were groundless, to wit: First. That the legislature has no constitutional authority to impose or authorize the corporation of the village to impose a tax upon persons or property, thus brought into it, against their consent, to pay its existing debts; and, Second. That the act was passed in violation of the constitutional provision that “ on the final passage in either house of the legislature of every act which imposes, continues or' revives a tax, or creates a debt or charge, the question shall be taken by yeas and nays, and three-fifths of all the members elected to such house shall, in such cases, be necessary to constitute a quorum therein.”</p> <p>Held, first, that there is no constitutional limitation upon the legislative power to tax the persons and property of individuals within the state. The power may be executed as well to pay debts incurred before the property-holder comes within its jurisdiction, as those incurred after-wards. When a municipal corporation is created, and the state confers upon it a portion of its taxing power to raise money for municipal purposes, the property-holder within the limits of the corporation is subject to taxation, without regard to the question when the liabilities were contracted to discharge which the tax was imposed.</p> <p>Held, second, that the legal presumption is that the law received the constitutional vote required, and that the requisite number were present at its passage, although the certificate of the secretary of state may be wanting in his publication of the laws, and if it is designed to raise that question it must be expressly put in issue by the pleadings. The complaint contains no express averment that three-fifths of all the members elected to each house were not present on the final passage of the bill. The plaintiff avers that the bill did not pass when three-fifths were present, because in the publication of it by the secretary of state the words “ three-fifths being present ” nowhere appear in such publication.</p> <p>But it was not required that three-fifths of the members should be present at the final passage of the act. It simply enlarged the territorial bounds of the village. It imposed no tax, nor did it continue or revive one, or create a debt or charge within the provision of the constitution. It became a part and parcel of the acts of 1851 ¡and 1854 under which the tax was passed, and was on the day of its passage read and construed, together with these latter acts, as one entire act. Such was its legal effect.</p> <p>It is conclusively settled in this state that an action will not lie to restrain the collection of a tax, unless the case is brought within some acknowledged head of equity jurisdiction.</p> <p>There is no allegation in this complaint bringing the case within any acknowledged head of equity jurisdiction. The charge that the corporation intend to proceed, and will proceed unless restrained, not only to collect the tax in question, but from time to time to assess and tax the plaintiff’s property for similar purposes, amounts to nothing in that direction.</p> <p>Where the defendant is in default by not demurring or answering, the plaintiff’s application for the relief demanded in his complaint may be denied notwithstanding. In an equity action, although no demurrer'or . answer is interposed, the plaintiff is not entitled to the judgment asked . for in his complaint as a matter of course.</p> <p>By the default the defendant’s right was not waived to appear and object to the jurisdiction of the court, and that the complaint did not state facts sufficient to constitute a cause of action. . The Code expressly reserves the right to a defendant, though the objection be not taken either by demurrer or answer.</p>

Motion by defendants Wood and Colton, to vacate certain orders appointing receivers, and to vacate a sale made by John Morrisey, as receiver of lottery grants and franchises, and other property.

The plaintiff placed with his brokers, Scott,, Strong & Go., in November, 1871, $110,000 of the Jefferson railroad bonds, directing them to sell them at the best market rate. The bonds had no quotable market rate, and Scott, Strong & Co. sent word to defendant, a broker, that they had the bonds for sale. One Potter J. Thomas called on Scott, Strong & Co., to obtain the particulars, and they asked him to get a purchaser.

<p>Where there are several pieces of real estate owned by two individuals, who are doing business as a firm, and as such each mortgages his separate estate to a bank conditioned as continuing security to said bank for all loans and discounts then existing or thereafter to be made by said bank to or for said firm, then one member of the firm sells bis real estate subject to the mortgage to the bank, reciting the mortgage in the deed, and the other member of the firm makes a mortgage on his real estate to a creditor of the firm, and subsequent to the mortgage to the bank thereon, and the grantee of the other real estate executes a mortgage on one of the pieces of real estate so conveyed to her to a third person : In a foreclosure by the bank of their mortgage, the subsequent mortgagees upon the different estates so mortgaged to the hank may serve upon the plaintiff answers in equity setting forth their various rights in equity,, and demand in equity a sale of the various pieces of property by the plaintiff first, as they claim will best protect their equitable rights, and either defendant, upon his answer so served upon the plaintiff, and upon the service of the necessary papers and motion upon the plaintiff, move the court for the appointment of a referee to hear the proofs of the respective parties, and to report to the court the amount due the plaintiff, and the proofs of the plaintiff’s case, and also to find, decide and report upon all questions of fact and law, and upon the equities of subsequent mortgagees, and may find, decide and report to the court in what form the plaintiff shall enter his judgment and decree, and in what order he shall sell the various pieces of real estate, covered by the various mortgages, and in what way he shall satisfy his various mortgages out of the different funds ; and also as to the order of payment of the subsequ ent mortgagees out of the surplus moneys arising from a sale of the several parcels of land so sold. And the referee may also find, decide and report, as to the right of a subsequent mortgagee upon one parcel, to compel the plaintiff to sell another piece of property which has been sold subsequent to making the mortgage to the plaintiff thereon; first, to satisfy its due proportion of the plaintiff’s debt, costs, etc., before selling the real estate covered by the other subsequent mortgage. A referee so appointed takes the place of a former master in chancery, and the rules and practice under the Code do not apply to cases in equity of this kind; by the answer the case is changed to one in equity.</p> <p>The recital in a deed of a mortgage upon the land conveyed, with a clause that the grantee hereby assumes to pay and discharge the same, the grantee and his assigns are estopped from denying its validity, or of the plaintiff’s right to foreclose 'and sell the land therein described, not- . withstanding the conve yance; and a subsequent mortgagee upon another property, also mortgaged to the plaintiff to secure a part of the same debt, has a right in equity to compel the plaintiff to satisfy, from the land so conveyed, its due proportion of the burden it bears, the plaintiff holding two funds for the same debt.</p> <p>A subsequent creditor upon one only of the funds has a right to throw the plaintiff, in the first instance, upon the land which the defendant has no lien and cannot reach to satisfy its proportion of the double fund, on the ground that the lands are charged with a burden, and the charge ought to be borne equally, and one part ought not to bear more than its due proportion, and equity will preserve this equality by compelling the owner of each part to pay its just proportion.</p>

<p>Where a prisoner is in custody of a United States marshal and the proceedings brought before this court by certiorari show that he is in his custody by virtue of process issued upon proceedings which the act of congress authorized to be taken, through federal authority, for the purpose of determining the question whether or not the prisoner should be extradited under the treaty between the United States and Great Britain, to answer for an alleged crime, this court has no jurisdiction nor authority to compel the production of the prisoner before it to enable it to review the proceedings of the fedéral tribunal.</p>

<p>The facts will sufficiently appear in the opinion of the court.</p>

Cunningham & Tompkins, owners of a barge called the Franklin, for the consideration of $2,500, sold the said vessel to one Roach. Roach, simultaneously therewith, gave back two notes, dated May 11, 1868, for $1,000 each, payable, one at six months and one at twelve months after date (for part of the purchase-money), and, to secure said notes, executed a chattel mortgage on the said barge, which was recorded in the ÍL Y. custom-house on May 12, 1868.

Appeal by the defendants, Dickinson and Reed, from a judgment of the general term of the second judicial district, affirming a judgment in favor of the plaintiffs, entered upon a verdict, and affirming an order denying a motion for a new trial. The action was brought for fraud, and deceit in an alleged sale of land.

This action was brought in the county court of Onondaga county to recover $105, being a balance due plaintiff from defendants for rent.

<p>1. In an action, in its scope and essence of an equity character, issues were joined and the cause noticed and put on the jury calendar for trial. On its being called on, no objections were made t'o the fact that it should be tried by the court alone, but the parties went on to trial before the court and jury. At the close of the case ten distinct questions of fact were-submitted to the jury to be passed upon by them ; and the case, after summing up of counsel, was submitted to the jury, under the charge of the judge, to find on these specific questions of fact. The jury found specifically on these questions of fact. On a motion for judgment on the special verdict it was held that an objection made by the defendant, that there had been no proper trial and that the trial at the circuit was unauthorized, came too late.</p> <p>3. The submission, without objection of those distinct questions of fact, to the jury, to be passed upon by them, was a consent to that form of trial and a waiver of the right to a different form of trial.</p> <p>3. Where, pending a trial before a court and jury, the father of one of the attorneys and counsel of the defendant died, so that his client was deprived of the services of his said counsel, who went to the funeral of his father, the other counsel remaining, and no suggestion of the fact being made to the court trying the cause at the time, it was held not to be ground for a new trial on the ground of surprise.</p> <p>4. So, also,1 the fact that the remaining counsel was laboring under a nervous affection, and was at the time under medical treatment so that he did not properly listen to the suggestions of the defendant nor efficiently conduct his defense, will not be cause for a new trial on the ground of surprise; the defendant having been present at the trial and having had there full opportunity on the stand, having been examined as a witness in his own behalf, to make all available explanations about the matters concerning which he supposed his counsel did not have adequate knowledge.</p> <p>5. Suggestions of the above nature, not made at the trial but first heard after an adverse finding of the jury, do not come with unabated force.</p>

This was an action brought by the plaintiff, as grantee of the h.eirs of Jasper Ward, against a large number of defendants, ninety-five in number, to have a partition and sale or a division of the following property situate on Ward’s, formerly Great Barn Island, in the limits of the city and county of Hew York: Firstly.

This action was brought to recover a balance claimed to be due from the defendants to the plaintiffs for rent of a portion of a building, and also for the rent of a certain hoisting machinery therein. Upon the trial, it appeared that in November, 1867, the plaintiff let to Asa D. Dickinson the whole of the store and premises known as Nos. 87 and 89 Leonard street, at the yearly rent of $26,000.

<p>Where the plaintiff is shown to be a tona fide holder of the promissory note sued on, and entitled to recover, it is not error for the judge to refuse to submit the case to the jury, although the note was impeached.</p>

<p>1. A married woman conducting a separate business in her own name and on her own account through or by her husband as her agent, in which business notes were issued payable at a bank for the purpose of that business,- is not liable on a note issued by such agent in her name, which was diverted from or not used in that business, even at the suit of a bona fide holder, who took the note under the representation that the note arose on a fan1 business transaction.</p> <p>3. It does not help the holder of said note to show that the wife conducted business on her own account and in her own name, nor that her husband, as her agent, carried on the same, nor that the representations as to the business character of the note in question were made to the plaintiff. It comes back to this, was the note made or negotiated in respect to the business or separate estate of the defendant ? If not, it is void. The legal incapacity of married women to make valid contracts is the same now as it was before our late statutes, unless the contracts relate to their business or separate estate. Except as to her business and her separate estate, the attempted obligations of a married woman are void.</p>

This was an appeal from a judgment of the district court, in the city of New York, for the third judicial district, rendered on the verdict of a jury against the defendant, for the sum of $76.51, and holding the defendant subject to arrest and imprisonment in case of non-payment of the judgment, pursuant to section fifty of the Laws of 1857.

<p>It is the duty of the general term, on an appeal from an order made at special term, to examine anew the facts and law on which the order was granted.</p> <p>Where a judgment was entered in June, 1869, and the defendant, in his affidavit, stated that in March, 1870, he first became possessed of the facts on which he moved for a new trial on the ground of newly discovered evidence, and on the further ground of falsehood, fraud and perjury, but delayed his motion until the month of August following, the defendant in such case is guilty of laches, and his motion for a new trial should, on that ground, have been denied.</p> <p>Where eight witnesses in their affidavits testified to declarations and admissions made by the plaintiff to them, which, if true, showed that the judgment which the plaintiff recovered against the defendants had been obtained by fraud and perjury, it was held that such alleged declarations and admissions afforded no ground to set aside the judgment and to grant a new trial, especially when it appeared, as it did in this case, that the parties making the affidavits had perjured themselves. Reflections of the court upon the moral turpitude this case presents, and the hope indulged that it is an isolated one.</p>

First. The complaint states more than one cause of action. 1. From fols. 5 to 58 it states the making of certain agreements with the St. Paul and Chicago Railway Company, which, it says, are as yet unperformed by that company, and on which it is alleged there exists an indebtedness of $105,000 in currency and 3,000 shares of stock. Then it alleges that the Minnesota Railway Construction Company assumed these contracts and indebtedness.

<p>An action maybe brought by an administrator upon a judgment recovered in favor of and during the lifetime of his intestate against the defendant without leave of the court.</p> <p>Such an action is not between the same parties, and, therefore, does not fall within the prohibition of section 71 of the Code.</p>

<p>Where the constable who serves the summons for the plaintiff in a justice’s court appears and advocates the cause on the trial for the defendant, who did not appear in person, without producing any authority, and without objection by the plaintiff, who personally appeared, the defendant cannot, on appeal, take advantage of such appearance by the constable for a reversal of the judgment.</p>

The plaintiff, intending to bring an action for false and fraudulent representations, issued a summons for relief under subdivision 2 of section 129 of the Code, but, after appearance by the defendant, complained upon a promissory note. He recovered judgment, and, upon the taxation of his costs, the clerk of Ontario county, against the objection of the defendant, allowed twenty-five dollars for proceedings before notice of trial.

Motion by plaintiff for a readjustment of defendant’s costs. The action had been on the Cortland circuit court calendar several times. It had been once tried, when only twenty odd witnesses were sworn on the part of the defendant; and the jury did not agree. It. was noticed for trial, and on the April Cortland circuit calendar in 1873, when the plaintiff discontinued it.

The action was brought to recover the sum of $835.30, with interest, under the following circumstances: On the 7th July, 1870, the plaintiff borrowed of the defendant, at the city of Eew York, $2,082.73 for the term of six months, and agreed to pay the defendant as interest for the said period the sum of $500.

<p>An undertaking, given on the issuing of an injunction, is for the benefit of all the defendants enjoined, whether served or not. Consequently, it is not necessary for a defendant not served to appear in the action, to have the benefit of the undertaking.</p> <p>Where, on filing consent of defendants’ attorney, and on motion of plaintiff’s attorney an order from the court was obtained, discontinuing the action and canceling the undertaking on file, without the knowledge or consent of one of the defendants who had not appeared in the action, but who had been enjoined,—Held, that such defendant was entitled to have so much of the order as canceled the undertaking set aside, as to him, he showing a property in it.</p> <p>The canceling of an undertaking on file in the court is of doubtful propriety, It certainly ought not to be done where there are other persons interested besides those who consent to the order.</p>

<p>When not limited by the terms of the submission, an arbitrator has authority to decide all questions of fact and of law arising upon the matters submitted, and his decision thereon is conclusive upon the same principle that a final judgment of a court of last resort is conclusive.</p> <p>In an action to set aside an award, as a general rule, it is only in case of a fraud practiced by a party, or in case of corruption, partiality or misconduct on the part of the arbitrator within the legally established meaning of these terms, that a court of equity will interfere after an unrestricted submission.</p> <p>The court will also interpose in case of excess or imperfect execution of the powers conferred, and in case of a gross mistake, about which there can be no dispute.</p> <p>There are, however, some exceptions in which the court will grant relief, notwithstanding the submission was an unrestricted one, viz.:</p> <p>1st. Where the arbitrator himself, either by the shape in which he makes his award, or by embodying in it a full statement of’the grounds of his decision, or of his intention to be governed by strictly legal principles, has conferred upon the court a power of inquiry and revision which it would not otherwise have had. This must appear so clearly upon the face of the award as to justify the judicial mind in supposing that the arbitrator would have made a different award had he known that the judicial tribunals held a different view of the question of law arising in the case from that entertained by himself.</p> <p>2d. Where the arbitrator has proceeded upon a gross and palpable mistake either of law or of fact affecting the merits. Here the error must be fundamentally and glaringly wrong.</p>

Motion to set off judgment for costs awarded the defendant, Edward D. Merritt, against judgment recovered against the defendant, Sniffen Merritt.

<p>Motion for a reargument.</p>

Demurrer to defenses in an answer. This was an action upon an undertaking given upon procuring an injunction.- The complaint set up the bringing of an action against the plaintiff Cunningham and another, the procuring by the plaintiff in that action of an injunction against the defendants therein, the service of the injunction upon such defendants, and the execution in that action of the usual undertaking by the defendants in this action as sureties, annexing a copy of the…

<p>Where a bank loans a certain sum of money to a firm of brokers on call upon collateral security, to be repaid the same day, and during the day such firm procures another loan from the plaintiffs of a certain sum upon collateral securities, which are subsequently ascertained to be forgeiiss, and the firm of brokers deposit the certified checks of the plaintiffs in their bank and take up their collateral securities, some of which prove to be forgeries, and the bank collects the plaintiffs’ checks in the ordinary course of business, for which it gives the firm of brokers credit in the usual way, tile bank is not liable to the plaintiffs for the amount of the loan they made to the firm of brokers on presenting the forged collateral securities taken by them and demanding of the bank the repayment of those checks.</p> <p>The law will protect a purchaser of personal property, and especially of negotiable paper, who has acquired it for a fair and valuable consideration, in the usual course of trade, and without any notice of any conflicting claims or of suspicious circumstances calculated to awaken inquiry or to put him on his guard, although the property was in fact obtained by the vendor from the true owner fraudulently.</p>

In this action a judgment of foreclosure and sale having been entered, the premises were sold June 9th, 1873, under the direction of the referee, named in said judgment, to one A. C. Milne for the sum of $49,000. At the time of sale the purchaser paid ten per cent of the purchase-money and signed the terms of sale, which prescribed that the purchase should be completed June 28th, 1873.

<p>In an action on a policy of insurance to recover for a loss of goods hy fire, composed principally of teas, it is incompetent to admit evidence proposed by the defendant to show not a general custom, but as to the business habits of a limited number of tea merchants in keeping or carrying a certain amount of teas, for the purpose of discrediting plaintiff’s testimony as to the amount of tea claimed to have been on hand at the time of the loss.</p> <p>It is proper on such trial to admit in evidence, on the part of the plaintiff, offers of compromise made by the defendant in settlement of the loss, as bearing upon the question of the sufficiency of the proofs of loss, such sufficiency being a controverted question in the case.</p>

<p>The terms of a life policy of insurance issued by the defendant to the plaintiff, on the life of her husband, Jacob M. Pohalaski, contained a condition that if the said Jacob M. Pohalaski should pass beyond certain limits specifically described therein without the consent of the company given in writing the policy should be void.</p> <p>Subsequently permission, in writing, was given to Mr. Pohalaski to proceed to Cuba, a place within the prohibition of the policy, by a permit, as follows: “Permission is hereby given to J.M. Pohalaski * * * to proceed to Cuba and return before April 1,1871. He to take his own risk of death from epidemics.” Mr. Pohalaski proceeded to Cuba and died in the city of Havana, of yellow fever, in the month of February, 1871.</p> <p>The referee found from the testimony that although there -occasionally occur in Havana, in the winter months, from time to time, a few sporadic cases of yellow fever, yet it rarely prevails or exists in Havana in the winter months as an epidemic, or in the form or condition, or to the extent of an epidemic, and did not so prevail at any time in the month of December, 1870, or in the months of January or February, 1871, when the said Jacob M. Pohalaski took the disease and died.</p> <p>The referee found from the facts, as a conclusion of law, that the death of " said Jacob M. Pohalaski occurred under circumstances bringing it within the risk assumed by the defendant in issuing the said policy.</p> <p>Held, that the court on the trial properly excluded evidence offered by the defendant of conversations between Mr. Pohalaski and the president of the defendant, alleged to be had at the time tile permit was given, showing that the word “ epidemic” was used in the permit as'includingyellow fever and cholera as diseases, without any reference to their existing in an epidemic form or to epidemic extent at any particular time.</p> <p>Held, also, that evidence offered by the defendant, intended to be shown by a well known physician on sanitary subjects, that yellow fever is properly classified in medical science and known as belonging to diseases called epidemics, was properly excluded on the ground that the permit being reduced to writing, it must be taken to be the repository and evidence of the final intention and understanding of the parties.</p>