Volume 45 — New York Reports

Wbit of error from the judgment of the General Term of the Supreme Court in the seventh judical district, affirming the conviction of the prisoner at the Monroe county Oyer and Terminer. The defendant was indicted at the October term, in 1868, of the Oyer and Terminer in Monroe county, for the murder of his wife. He was tried at the April term, 1869, and convicted and sentenced to be hanged on the áth of June, 1869.

This action was tried before a referee, who found that the American Express Company was a joint stock association engaged in the general express business.

This statute authorized the Supreme Court, on application, in case of disagreement between the water commissioners and the owner of any property, which may be required for the carrying out of the purposes of said act, to appoint three disinterested persons to examine the property, estimate the compensation, and report to the court what would be a just compensation for it.

This action was brought upon an agreement bearing date September 10, 1856, whereby the defendants agreed, that in consideration that the plaintiff would aid and use his influence in procuring the mortgage bond holders of the Chicago, Alton and St. Louis Railroad Company, to fund the interest due and to fall due on their bonds, within three years from the second day of October then next, they, the defendants, would, in case they should get into possession of the road of said…

<p>It is not error for the court to exclude an offer of evidence which, with the evidence already given, would be insufficient to establish the fact which it is intended to prove. An offer of testimony is to be presumed to include all that the party proposes to offer in addition to what they have already shown upon the particular issue.</p> <p>Supreme military control in a city is not incompatible with the existence and authority of courts of civil jurisdiction and procedure there.</p> <p>A transcript of minutes extracted from the docket of a court, is not admissible in evidence under the act of Congress of 26th May, 1790.</p> <p>The acts of a de facto judge cannot be attacked collaterally, by showing . that he has taken no oath of office, or that he has taken an oath to support a power in insurrectionary hostility to the federal government.</p> <p>The secession of the State of Louisiana, attempted or temporarily effected, did not affect the jurisdiction of the civil courts of the State between, citizens of that State.</p>

The action was brought against the defendants for the conversion of chattels claimed by the plaintiff. The defendants, as common carriers between Albany and New York, received from Mr. Guyer, at Albany, and carried to New York, in 1868, several bundles of sash and blinds addressed to “ McEntee,” New York.

The facts in the case sufficiently appear in the opinion of the court. that the consideration was sufficient.

<p>The plaintiff holding a contract for the sale of certain lands, part of the purchase-price of which had been paid by him, transferred the contract to the defendant as security for any advances the latter might make to pay the balance due thereon; and the defendant having paid up the contract and taken a deed to himself, with the assent of the plaintiff contracted to sell a portion of the lands to G, receiving part payment. At the same time, he agreed with G to advance him money to cut logs on the lot, the defendant to be repaid by taking the logs at agreed prices.—Held, in an action to redeem, brought by the plaintiff, that the defendant was not entitled, upon such redemption, to charge the plaintiff with any moneys advanced to G under the lumbering contract, but must convey to the plaintiff, and assign the contract with G and the logs on the land to him, upon being paid his advances to buy the land, less the amount received from G.</p>

This action was brought on a policy of insurance, dated December 22, 1863, on 223 barrels of cider, shipped on board the schooner Frances Satterlee, for Washington, from New York, containing the following clauses: “ Property on deck; warranted free from claim for damage by wet, exposure, breakage or leakage.” “ This company is not liable for leakage on molasses or other liquids unless occasioned by stranding or collision with another vessel.” After the cider was loaded on…

This case was tried by the court without a jury, and the following facts were found: That on and prior to the 3d day of April, 1865, George Schenek was engaged in business in the city of New York as a dealer in hosiery, woolen shirts, and goods of that general character. That on the day last aforesaid, Schenek was embarrassed in his financial matters, and unable to pay his debts or meet his obligations as they became due.

The action was upon a promissory note made by the defendant and two others, payable to the order of one Tracy. After the maturity of the note, the plaintiff paid to the payee and holder the amount due thereon, and received from him the note, and on the trial testified that he paid the money on a purchase, and not in satisfaction of the note, and received the same as purchaser, and to collect for his own use.

This action was upon the quantum meruit for the balance of a shipwright’s bill for repairs upon a brig belonging to the defendant. The whole amount of the bill claimed was $12,236.49, of which $5,921.08 had been paid, leaving a balance of $6,315.41 due. At the defendant’s request the plaintiff examined the vessel and expressed the opinion that she was well worth repairing.

On the 28th of October, 1867, the defendant purchased of W. Johnson a herd of cattle, supposing Johnson to be the principal. He was, however, in fact, the agent of the plaintiff and others. The sale of the cattle was for cash on delivery. The price was agreed upon and the cattle were weighed and delivered.

In June, 1857, the plaintiff, with others, claimed to own and to have taken possession of “ Sombrero,” an island in the Caribbean sea, containing deposits of guano, and contracted to sell to Wood & Grant, to whose rights and liabilities the defendants, Woods, have succeeded, one-half of the interest in the whole island, Wood & Grant agreeing to pay $30,000 therefor, and advance for a working capital the further sum of $20,000, so much of which as might not be required, to be…

An appeal from a judgment of the General Term of the Supreme Court in the second judicial district, affirming the judgment entered at the Dutchess county circuit for the plaintiff The action was brought to recover on a policy of insurance, whereby the plaintiff’s paper-mill, machinery, etc., were insured to the amount of $2,000 in defendant’s company.

The action was brought to foreclose a mechanic’s lien for $8,743, part of a balance claimed'by plaintiff to be due for work, labor and materials furnished by him in the erection of certain buildings for defendant. The defendant claimed that the work and materials were furnished in pursuance of a special contract, but the referee found otherwise.

<p>Appeal from a judgment of the General Term of the Supreme Court in the first district for the defendants, upon a verdict taken at the Circuit for the plaintiff, subject to their opinion.</p> <p>The trial was had before Judge Gould, anda jury, in 1863. The controversy is between the plaintiff, as sheriff of Yew York, claiming under an attachment by him, at the suit of a Yew York creditor, upon the ship Arctic, and the defendants, Crapo and others, as assignees appointed under the insolvent laws of Massachusetts. On the 24th of April, 1861, Edward Mott Eobinson, residing in Yew York, commenced an action in this court against Gibbs, Jenney, and Allen, to recover the sum of §6,004.06, being the amount due upon their two promissory notes, dated at Fairhaven, Massachusetts, on the 20th day of June, 1860, and the 3d day of September, 1860, respectively, each for §3,000, at five months from date, and being made by Gibbs and Jenney, and indorsed by Allen; Gibbs, Jenney, and Allen, all reside in Massachusetts, and on that ground, upon the usual affidavit and undertaking, a warrant of attachment was issued to the plaintiff, as sheriff of' the county, against their property, the proceedings being in all respects conformable to the provisions of the Code in such cases.</p> <p>On the 30th of April, 1861, the ship Arctic arrived at Hew York direct from the Pacific ocean, and the plaintiff on that day seized her in the harbor, and under the warrant attached one undivided half of her, as being the property of Gibbs, Jenney and Allen. On the 10th of June, the defendants, Crapo, and others, claiming to be themselves the owners of the property attached, made application as provided by the Revised Statutes in such cases, for an appraisement of its value. It was accordingly appraised at $3,000, and the vessel was released from custody, and delivered to' the claimants upon them executing to the sheriff, with the defendants, Williams and Minturn, as sureties, the bond required by the statute, conditioned that in a suit to be brought on said bond, the claimants would establish that they were the owners of the share of the vessel attached at the time of its seizure, and in case of their failure to do so, that they would pay to the sheriff the amount of the valuation, with interest from the date of the bond. The present action is upon this bond., The attachment was never set aside or discharged, and Robinson, the attaching creditor, proceeding in the original action, recovered judgment for the whole amount claimed against Gibbs, Jenney, and Allen, upon which execution was issued, which remains in the hands of the plaintiff wholly unsatisfied.</p> <p>The defendants, who claim the property attached, are the duly appointed assignees in solvency in Massachusetts, holding assignments from the judge of the Insolvent Court there, executed respectively, on the 12th of February, and 6th of March, and purporting to” assign to them all the estate, real and personal, of the said Gibbs, Jenney, and Allen, who are admitted to have been, at the time of the taking of the proceedings in insolvency, owners of the property attached. The vessel belonged to the port of Fairhaven, in Massachusetts, and was there registered, as to one-half, in their names. Wo assignment was made by the insolvents themselves.</p> <p>On the 12th of Hovember, 1860, the Arctic was at Honolulu, in the Sandwich Islands, under charter to the American Guano Company of Hew York, to proceed from Honolulu to Baker’s and Howland’s islands, in the Pacific, and there receive on board a cargo of guano, and transport the same to Hew York; and on that day, or soon thereafter, she sailed from that port for Baker’s and Howland’s islands, in the Pacific, for a cargo, and thence on the 18th of January, 1861, for Hew York, where she arrived as before stated, on the 30th of April, and was then attached.</p> <p>The assignees never had possession until after the attachment, and on the 2d of May, hearing that she had arrived, came from Hew Bedford to Hew York, and finding her in the custody of the plaintiff, obtained possession of her by giving the bond on which this action is brought.</p> <p>At the trial, the court ordered a verdict for the plaintiff, subject to the opinion of the court at General Term. But the General Term gave judgment for the defendant and the plaintiff appeals to this court.</p> <p>insisted that the attaching creditor was a citizen of the State of Hew York, and that his lien acquired by attachment is superior to that of assignees. (Story Conf. Law, § 48; Vattel Lib. 1, Ch. 19, § 213; Holmes v. Remsen, 20 Johns., 229; Abrahams v. Plestoro, 3 Wend., 538; Hunt v. Johnson, 23 Wend., 87; Mosselman v. Caen, 34 Barb., 66; Olyphant v. Atwood, 4 Bosw., 469; Willetts v. Waite, 25 N. Y., 577; Clark v. Booth, 17 How. U. S., 322; Ogden v. Saunders, 12 Wheat., 219; Harrison v. Sterry, 5 Cranch, 289; Milne v. Morton, 6 Binn., 353.) That principles of comity did not require his lien to yield to the claim of assignees. (Wheaton’s Intern. Law, Dana’s ed., §§ 79, 80; Story Conf. Law, § 414; id., § 512; id., §§ 519-521; Campbell v. Toucey, 7 Cow., 64; Gulick v. Gulick, 33 Barb., 92; Orcott v. Orms, 3 Paige, 459.)</p> <p>insisted that the “ Arctic ” was itself a part of the territory of Massachusetts, and therefore passed under assignment. (1 Kent’s Com., p. 26; Wheaton on Int., Law, Dana’s ed., § 106; 10 Wheaton, 66; Hoyt v. The Commissioners of Taxes, 23 N. Y., 224; Plestoro v. Abraham, 1 Paige, 237; Perrie Gassies v. Jean Gassies Ballon, 6 Pet., 761; Moore v. Willett, 35 Barb., 653; Thuret v. Jenkins, 7 Martin, 318.) That principles of comity required court to sustain assignees’ title. (Story Conf. Law, §§ 29-38; Parsons v. Lyman, 20 N. Y., 112; Bank of Augusta v. Earle, 13 Pet.)</p>

The plaintiffs claimed for use and occupation of a warehouse in the city of Brooklyn, for the period of twenty-one days, viz.: From the 10th day of July to and including the '30th day of July, 1867, alleging ownership by the plaintiffs ■during the period aforesaid, and occupation by the defendants •with consent of the plaintiffs.

On the 26th of September, 1867, the plaintiff leased to the defendants, the three upper lofts of No. 184 Fulton street, in the city of New York, for $2,500 a year, payable quarterly. The lease, hy its terms, expired May 1st, 1871, unless sooner ended by the actual removal of the building by the city, for the purpose of opening or extending Church street, rent to be paid up to such event.

The action was brought to recover of the defendants, as sureties, certain installments of rent of the “Eagle Hotel,” Schenectady. On the 27th of April, 1866, Nicholas Barkydt, now deceased, leased the premises to J. G. Carley, by a lease partly written and partly printed. In the body of the lease-were the following written words: “ and in case the said rent is not paid when due, as aforesaid, then the said Barhydt is to notify the Messrs.

Appeals from the General Term of the Supreme Court in the Second district in Dike’s case, and from the General Term of the Supreme Court in the Sixth district in Floyd’s case. These actions were to recover damages for personal injuries sustained by the plaintiffs while passing over the road of the defendant as passengers, caused by the negligence of the defendant’s servants and agents.

Action to recover damages for injuries to the plaintiff’s goods and loss to his business from the omission of the defendant to repair the roof of the premises occupied by the plaintiffs. The defendant demised to the plaintiff, to be used in carrying on the upholstery business, the store and basement (except the right to the other tenants to use the basement stairs), of the premises No. 707 Sixth avenue, New York.

This was an action brought to recover damages the plaintiff ■claimed to have sustained from injuries through the negligence and carelessness of the defendant, in not keeping its road in a safe and proper condition, and in carelessly and negligently running its cars upon such road.

Appeal frcim the judgment of the late General Term of the Supreme Court, in the Seventh district, ordered upon a verdict for the plaintiff, at the Monroe circuit. This was an action to recover damages for the negligence of the defendant, in permitting a bridge to continue out of repair. The bridge was situated opposite the head of an alley which led into Clark street, in Rochester, and was within the line of the street.

This is an action brought to recover damages for the breach of a contract for the conveyance of real estate. The defendant was the owner of the property, and his brother transacted his business, under a full power of attorney. His brother left the property with Cornell, a broker. The defendant, at an interview with Cornell, refused to name a price for the property, but told the broker that, if he had an offer, to communicate with him.

05. ■ The action was brought to recover back moneys and the avails of goods and merchandise, paid by the plaintiff to the defendants, upon a certain contract for the sale of “ kerseys,” alleged to be void under the statute of frauds. The answer, among other things, sets up a counter claim for the balance of the purchase price of the “ kerseys ” unpaid.

25, the exceptions having been heard in the first instance by them. The action was brought to recover the sum of $1,000 claimed to be due under the following letter or agreement between the parties: “ Hew Yobk, December 14th, 1864. “ Oybus Manvel : “ Dear Sir.—I inclose an assignment of the one-fourth interest in patent Ho. 29,481, from yourself to me, for your signature.

The accused was charged, in the first count of the indictment, with setting fire to and burning, at the town of Seneca Falls, “a certain building erected for the manufacturing of woolen goods, there situate, and belonging to the Phoenix Mills Company, a corporation duly organized under the statute of the State of Hew York as a manufacturing company.” In the second count, the building was described as “ a certain warehouse, belonging,” etc., describing the owner as in the…

The action was by an amendment of the complaint, permitted by the court, changed from one on special contract to one on quantum meruit for the balance due for plaintiff’s service for two years.

This action was brought by the plaintiff as receiver of the property of James E. Parrel, to recover for services performed by said Parrel as superintendent of the Milford hotel.

This action was brought to recover damages from the defendant for false and fraudulent representations in regard to the solvency of the firm of Blackmer, Walker & Co., whereby the plaintiffs were induced to sell them goods to the amount of $3,500.

By an agreement dated the 22d January, 1863, the plaintiffs agreed to sell to the defendants two lots in the city of FTew York, worth not less than $4,000, for the sum of $4,100. At the time of making the agreement one of the defendants offered in part payment ($2,000) the bonds of the Logan County Mining and Manufacturing Company of Virginia, at par value.

Action upon promissory notes. On the first of January, 1867, the firm of Myrick, Haight & Co., before then existing, was dissolved, and a new firm, under the same name, was organized. The partners were the same in each firm, except that Samuel J. Parsons became a partner in the new firm, in the place of James Greenwood, a member of the old firm.

<p>Appeal from an order of the General Term of the Supreme Court of the first judicial district, reversing a judgment for plaintiff, entered upon the report of a referee, and granting new trial.</p> <p>On the 5th day of March-, 1866, the plaintiff purchased, at the ticket-office of the defendants, at Palmyra, a ticket for the city of New York, and his baggage, consisting of a trunk, was regularly checked, and placed in their custody. By an arrangement between the defendants and the Hudson River Railroad Company, passengers from Palmyra to New York were carried from Albany, by the latter company, to its station at the foot of Thirtieth street, in the city of New York, where the baggage of the passengers is delivered by them.</p> <p>The plaintiff and his baggage reached the city of New York on the 6th of March, 1866, at about 9|- o’clock a. m. The 'plaintiff, instead of calling for his trunk upon the arrival of the train, immediately proceeded to the house of his mother in Brooklyn, where he purposed to stop, and, at about noon of the same day, gave the check for his baggage to an expressman in Brooklyn, with directions to get the trunk from the Hudson River Railroad Company’s station. The expressman never called for the trunk; and, on the morning of March 8 th, the plaintiff called at the depot and demanded his trunk, but upon searching for it, it could not be found.</p> <p>This action was brought to recover the value of the trunk. The referee found that the delay of the plaintiff was not, under the circumstances, unreasonable, and that the trunk was lost through want of ordinary care and diligence by the defendants, and gave judgment for the plaintiff.</p> <p>The General Term reversed this judgment, and plaintiff thereupon appealed to this court.</p> <p>insisted that, by the contract of carriage, defendants were liable for the baggage until called for. (Norway Plain Co. v. Boston & Me. R. R. Co., 1 Gray, 271, 274; Cary v. Cleveland and Toledo R. R. Co., 29 Barb., 35; Fisk v. Newton, 1 Denio, 47; Ostrander v. Brown, 15 Johns., 42; Van Horn v. Kermit, 4 E. D. Smith, 454.)</p> <p>insisted that defendants were not liable as carriers. (Roth v. The Buff. and St. L. R. R. Co., 34 N. Y., 548; Jones v. Norwich Trans. Co., 50 Barb., 193; Holdridge v. Utica and Black River R. R. Co., 56 id., 191.) That they were, in any event, merely gratuitous bailees. (Story on Bail., §§ 17, 23, 62, 64, 65, 79, 97; Edwards on Bail., 44, 45, 69, 70, 95, 102, 103, 105, 107, 129; Angell on Carriers, §§10, 11; Dorman v. Jenkins, 2 Adolph. & Ellis, 256; Foster v. Essex Bank, 17 Mass., 479; Knapp v. Curtis, 9 Wend., 60.)</p>

The action was for damages resulting from a personal injury alleged to have been caused by negligence of the defendant Gormley, while driving a cart belonging to the other defendant. The plaintiff was a woman, of over sixty-four years of age, and was lame, walking with a crutch. She was crossing Third avenue, the lower crossing at Forty-first street, at about ten o’clock in the morning, going from the west side.

During a portion of the years 1859 and 1860, the relator was attorney for the board of excise of Delaware county. He presented to the board of supervisors of that county his bill for the legal services rendered as such attorney to the excise board, including services in two suits known as the Goan and Sack-rider suits.

<p>Appeal from a judgment of the General Term of the Court of Common Pleas of the city of New York, affirming a judgment entered upon the report of a referee as to one defendant, and dismissing plaintiff’s appeal as to the other.</p> <p>The respondent, Mrs. Jackson, leased certain property in the city of Bew York to the defendant Brown, for five years, and afterward for two more. By a provision in the lease, the lessee stipulated to make, at his own expense, certain alterations and improvements in the buildings, which were specified in the lease. The lessee, Brown,. contracted with the plaintiff, to make certain alterations,- and the plaintiff filed a lien under the mechanics’ lien law. Subsequently he commenced an action in Bew York Common Pleas, to foreclose his lien, making Brown and Mrs. Jackson parties.</p> <p>The action was referred, and on the trial, after the plaintiff had opened his case, the referee dismissed the complaint as to the defendant Jackson, but without costs.</p> <p>The trial proceeded as against the other defendant, and a judgment was recovered against him for $966.69, but without costs, except costs before notice of trial, as the defendant, Brown, had offered to allow judgment for $1,020.31 and interest, before notice of trial. The plaintiff appealed to the Common Pleas General Term, but before the hearing, Brown paid the judgment, upon an execution being issued against him. After hearing the appeal, the court affirmed the judgment as to the defendant Jackson, and dismissed the appeal as to the defendant Brown, with costs. The defendant, Brown, made no objection to .the payment of the judgment, and accepted the proposed case and served amendments thereto.</p> <p>for the appellants, insisted that the collection of the judgment was not a waiver of the right of appeal. (Dyett v. Pendleton, 8 Cow., 325; Clewes v. Dickenson, 8 Cow., 331; Higbie v. Westlake, 14 N. Y., 281; Burkard v. Babcock, 27 How., 391.) That defendant’s acceptance of case estopped him from objection. (Law v. Graydon, 14 Abb. P. R., 448; Persse & B. Paper Works v. Willett, 14 Abb. P. R., 119; Strong v. Strong, 4 Rob., 621; Lawrence v. Zones, 15 Abb. P. R., 110; Burman v. Tallman, 28 How. P. R., 483.) That defendant Jackson was liable. (11 Barb., 9; 5 Selden, 440; 12 Abb., 128; § 1, Laws 1863; Code, § 114; 19 N. Y., 242; 31 N. Y., 285; 1 E. D. Smith, 670.)</p>

The plaintiff in error was indicted and convicted of the murder of Frederick A. Merrick, at Binghamton, on the 17th' day of August, 1870. The deceased was a clerk in a store in the city of Binghamton, and, with a fellow-clerk (Burrows), slept in the store. They were awakened, on the night of the homicide, about two o’clock, and discovered three persons in disguise near their bed.

The action was brought to set aside a conveyance of certain real estate in Brooklyn, by Thomas H. Simonson to Miriam Simonson, on the second of November, 1857, as fraudulent against the creditors of Thomas. For some time prior to November, 1857, the defendant Thomas H. Simonson was the owner of certain real estate in the city of Brooklyn, consisting of houses and lots, and one unimproved lot. The houses were old, having been built, for the most part, prior to 1847.

<p>At common law, tlie liability of the husband for the trespasses of cattle, damage feasant, belonging to the wife at the time of marriage, and straying from her land did not rest upon the ground of his responsibility for , her torts. Andrews, J.</p> <p>Although the statutes of this State in regard to married women have not affected the liability of the husband for the torts of his wife, based as that is upon his presumed dominion and control over her person and acts, the statute of 1860, declaring that any married woman “ may sue and be, sued in all matters relating to her separate property, in the same manner . as if she were sole,” authorizes an action against her alone for damages done by the straying of her cattle from her own premises upon adjoining lands, notwithstanding her husband and. children reside with her upon the lands, and both the land and cattle are used for the support of the family.</p>

<p>In the exercise of the right of eminent domain, the legislature are the sole judges to what extent the public use requires the extinguishment of the owner’s title, and their power in this respect (subject always to the necessity of making full compensation) is not limited by any constitutional restriction. The nature of the right acquired by the public in such cases, whether an absolute title to, or a mere easement in the lands, depends, therefore, upon the intention of the legislature, to be deduced from the act authorizing the condemnation.</p> <p>A municipal corporation, was, by an act of the legislature, authorized to take lands for a public park, and the act declares, that the lands so to be taken, shall be a public place; and provides that in ascertaining the compensation to be paid the owners, a just and true estimate of the value of the lands is to be made, together with the tenements, hereditaments and appurtenances, privileges and advantages to the same belonging, without deduction for benefits and advantages; and declares that on fulfilling the requirements of the act, the lands shall vest forever in the city, and that whenever the city shall become vested with the title to the park, as provided, it might sell any building improvements or other material thereon; and authorizes the issue of bonds by the city, to obtain the fund to pay for the lands taken, declaring the lands pledged for the payment of such bonds.—Reld, that the city acquired an absolute estate in the lands taken under this act and not an easement, and that such title was free from any legally recognizable reversionary right in the owners.</p> <p>The title of the city, thus acquired, is impressed with a trust to hold the lands for the public use as a park, and it cannot, of itself, convey or dispose of them in contravention of the trust; but it is within the power of the legislature to relieve the city from such trust, and to authorize a sale, free therefrom.</p> <p>The right to discontinue the public use of land thus taken and to sell it to private parties, under the sanction of the legislature, exists, notwithstanding the fact that such abandonment and sale, will lessen the value of surrounding property, which has been assessed for the benefit and advantage to it, from the maintenance of such use. There is no contract in such cases, with the owner of such adjacent property to maintain the use.</p> <p>Bonds having been issued and used to raise funds for the compensation paid for the land.—Held, that the terms of the act and the issue of the bonds, constituted a contract between the bondholder of the one part, and the city and the State on the other, specifically pledging the land taken for the payment of the bonds, and that a subsequent act of the legislature, authorizing a sale of any portion of the park free of all liens existing by virtue of the original act, was in violation of the federal constitution, as impairing the obligation of contracts.</p> <p>Held, further, that a provision that the avails of the sales so authorized, should be held as a sinking fund, for the redemption of the bonds when due, did not avoid the objection.</p> <p>If a purchaser may sometimes be compelled to take a title, free from reasonable doubt, notwithstanding an objection not certainly andrbeyond all possible question unfounded; yet when it is ascertained that there is a defect, he may refuse, however remote the probability of his ever being incommoded thereby.</p>

” Other facts sufficiently appear in the opinion of the court. cited Brown v. Osborn (2 Cow., 457); Butler v. Palmer (1 Hill, 324); Smith v. Banker (3 How.

This action was commenced to obtain a judicial construction of a will. The testator died, seized of a large real estate; he also was possessed of considerable personal property, and was indebted to a considerable amount. He left no wife or descendants surviving him, but numerous collateral heirs. He devised considerable real estate, in every case giving a life estate to the first taker, with remainder in fee to the issue of such first taker.

This was an action to recover the value of certain eases of paper, shipped by the plaintiff’s assignor on board the cars of the defendant, at Springfield, Mass., and consigned to several parties in the Western States, via The Western Transportation Company, and burned at the defendant’s depot in East Albany, July 5th, 1861.

<p>Appeal from the Superior Court of the city of JSTew York, affirming a judgment for the' plaintiff, at the the trial term.</p> <p>The action, was to recover the purchase price of a quantity of lumber sold the defendant by the plaintiff. The sale was by written contract. By its terms the plaintiff sold the defendant all the sawed lumber then in a certain yard, at the rates stated in a schedule annexed to the contract, to wit: seventeen dollars a thousand for “ prime,” fifteen dollars a thousand for “ merchantable” and eight dollars a thousand for “ refuse.” The amount- in feet was to be ascertained by a competent measurer. Upon the trial, the plaintiff offered the following receipt, signed by the defendant’s agent.</p> <p>“Deceived, Cedar Keys, Florida, September 28, 1867, of McCormick & Dawkins, 53,732 feet prime lumber, 166,115 feet merchantable lumber, 58,562 feet refuse lumber, in accordance with an agreement entered into by McCormick & Dawkins at Cedar Keys, Florida, and John B. Sarson, of the city of Kew York, on the 17th day of June, 1867.”</p> <p>The answer of the defendant, beside a general -denial, set up that the contract was made on Sunday, by means of deceit, fraud and false representation, and asked to have it set aside as void.</p> <p>At the close of the plaintiffs’ case, the defendant offered to show that all the lumber for which the action was brought as prime, and a large portion of the lumber for which the action was brought as merchantable, was not prime, or merchantable as respectively claimed, but was only refuse and' of a vastly inferior quality to “ prime or merchantable.” This was excluded, and the plaintiff had judgment for the agreed price.</p>

The action was originally commenced in the name of Green Bennett v. Charles Cook. During its trial Charles M. Bennett was added as co-plaintiff, and Charles Cook having died, the present defendants, who are both his heirs and administrators, were substituted as defendants.

<p>Appeal from an order of the General Term of the Supreme Court in the second judicial district, affirming an order of the Special Term, striking out an answer as sham, and ordering judgment for the plaintiff.</p> <p>The answer was as follows:</p> <p>SUPREME COURT.</p> <p> </p> <p>The defendant, David J. Tysen, denies each and every allegation in the complaint of the above plaintiffs in this cause contained.</p> <p>BRADLEY & HELSOH,</p> <p> Deffls Att’ys, </p> <p>173 Broadway, Hew York.</p> <p> </p> <p>David J. Tysen, being duly sworn, doth depose and say that he is the defendant in the above entitled cause, that he has read the foregoing answer, and that the same is true of his own knowledge, except as to the matters stated on information and belief, and as to those matters he believes it to be true.</p> <p>DAVID J. TYSEH.</p> <p> </p> <p>Charles Hettletoh,</p> <p> Notary Public, for N. Y. county. </p> <p>The motion to strike out this answer as sham was based upon the affidavits of the plaintiffs and others strongly tending to show its falsity.</p>

, presiding. The action was to recover for $5,000 in gold, at the rate of 212 per cent, claimed to have been delivered by the plaintiffs, through their clerk, Corneilson, to the defendants, on the 26th of September, 1864. It appeared that the plaintiffs had contracted to deliver the defendants, on that day, $25,000 in gold, at 212Í-.

The action was upon a promissory note, of which the following is a copy: “ $200. Saratoga Sp’gs, Sept. 22d, 1866. One year after date I promise to pay George W. Palmer or order two hundred dollars, value received, with interest, at my residence. T. H. Tompkins.” The plaintiff attempted to make title under the indorsément of the payee’s name by one Brown. The evidence as to his authority is stated in the opinion.

The appeal is from the affirmance by the late General Term of the Supreme Court, in the fourth district of the judgment of the referee, dismissing the complaint, and excluding proof of the truth of its allegations, on the ground that it did not state facts sufficient to constitute a cause of action.

The action was to recover the amount paid in satisfaction of a promissory note given by the plaintiff to the defendant, as alleged, and as the jury have found, upon the purchase of a note made by one Joseph Whitney, and purporting to have been indorsed by one Daniel Whitney, and the costs of the prosecution and defence of a suit upon the plaintiff’s note, which was transferred by the defendant before due, and upon which a judgment was recovered against the plaintiff, and…

This was an action brought by the plaintiff, for professional services rendered, and disbursements as an attorney and counselor-at-law, for the defendants. The answers were a general denial, and the statute of limitations. The defendant, Lucinda Wilcox, further answered that the plaintiff agreed that she should not be personally liable for services and disbursements, but that the plaintiff would look to and depend solely upon the estate of Whitman Wilcox, Jr., .deceased.

On the 19th day of February, 1866, the Harmony Fire and Marine Insurance Company, which was a Hew York corporation, issued its policy for $7,500 to Wm. McLoon, insuring his ship “Young Mechanic” for a voyage from Boston to Hong Kong. In the course of her voyage, and while off the coast of South America, the ship was destroyed by fire, on or about the 10th April, 1866.

This is an appeal from the judgment of the late General Term of the Supreme Court of the Seventh judicial district, affirming a judgment in favor of the plaintiff, entered upon the report of Scott Lord, sole referee.

This is an appeal from an order of the G-eneral Term of the Supreme Court in. the second judicial district, reversing an order of the city court of Brooklyn vacating and setting aside a judgment in this action, in favor of the plaintiffs, on the ground of fraud, in that the same was procured by false testimony as to a material issue on the part of the plaintiffs, and on the ground of excusable surprise; and for a new trial, on the ground of newly discovered evidence upon a…

The action was first tried without a jury, in October, 1862; judgment went for the plaintiff for the full amount. Defendant appealed to the General Term of the third district, where the judgment was reversed. The cause was again tried at 'the Schoharie circuit, before a jury.

Starin and Fonda were indicted in Montgomery county, in May, 1866, as accessories before the fact, to burglary in the first degree, and larceny, committed by Disbrow, and John, Charles and WilliamVanVoast, as principals.

This was an action on an alleged breach of contract. By the terms of the contract, the defendant agreed to allow the plaintiff to dig molding sand on his premises in places to be designated by him (the defendant), at the rate of twenty-five cents per ton. It was further stated to be “ understood that the digging shall commence in the spring of 1867, upon Opening of navigation, and cease at its close.” The defendant denied the breach of the contract.

Appeal by the defendants from a judgment against them at the G-eneral Term of the Court of Common Pleas of the city and county of Hew York, entered upon a case submitted under section 372 of the Code.

The plaintiff brought suit by a summons for relief, the complaint being in the form of an action for damages sustained by reason of alleged false representations made by the defendant to the plaintiff, as to the solvency of the maker of a promissory note, through which he was induced to take the note, the making of which by a third party, and the indorsement of the same by the defendant to the plaintiff were set out in the complaint.

The action was replevin for three horses found by the defendant, an overseer of highways, running at large upon a public highway within his district, and seized and taken by him pursuant to chap. 814 of the Laws of 1867.

This was an action for a perpetual injunction, restraining the defendant from digging upon his own land, for a lawful purpose, the result of which was the diversion of the water, and preventing its flowing or percolating into two large and valuable springs on adjoining land, which supplied the village of Delhi with water. This court must decide upon the facts as found by the judge at Special Term, who acted as referee.

The Hunter’s Point and South Side Railroad Company was organized under the general railroad act, and duly filed a map, etc. This company gave written notice of location of their route to one Furman, an actual occupant of land over which the location was made. On the petition of Furman, commissioners to examine the route were appointed, and duly made and filed their determination as to the route, according to law.

<p>Appeal from a judgment of the late G-eneral Term of the Supreme Court in the fifth district, affirming a judgment dismissing the complaint on a trial before the court without a jury-</p> <p>The plaintiffs, children and heirs-at-law of Theodore Wood, who died in October, 1838, bring this action to redeem certain premises, of which their ancestor died seized, from a mortgage which had been given by the grantor of the ancestor prior to the conveyance to him. The mortgage was a purchase-money mortgage, given by one Cowing to Daniel Kellogg, in October, 1835. In 1837 Cowing conveyed to Wood, subject to the mortgage. The premises descended to the plaintiffs upon the death of their father, and pn 1841 the executors of the mortgagee brought their action in the Court of Chancery to foreclose the mortgage. The plaintiffs were then infants, were lot made parties to that action, and in 1843 the premises were sold by a master, under the decree in that action, and purchased by the complainants therein, and the premises are now occupied by purchasers and grantees in good faith, under the title thus acquired. In January, 1838, one Pratt had recovered a judgment in the Supreme Court against Wood, which was a lien on the premises, and an execution was issued to the sheriff, returnable in October, 1848. Under that execution the premises had been advertised for sale prior to the death of Wood. The notice was dated on the 26th of September, • and first published in a weekly newspaper issued as of that date, and was for the first day of ¡November. It was published once in each week for six weeks before the sale. The evidence did not show the posting of the notice of sale, and the judge found that there was not six -full weeks between the date of the notice, as published, and the day named for the sale, and, as a.matter of fact,, that such notices were not posted in three public places six weeks before the day of sale mentioned therein, but that the same were posted for more than five weeks before that day. At the sale, the premises were bid off by the plaintiff in the execution, and a certificate of sale given him, in which was inserted a copy of the printed notice of sale, with a reference to it for a description of the premises .sold, and a duplicate certificate was filed in the office of the county clerk. No money was paid at the sale, but the sale and the amount at which the premises were sold were indorsed by the sheriff on the execution, which has never been returned.</p> <p>The judge finds that neither the purchaser at the sale, nor .any of the persons who became assignees of the certificate, had any knowledge or actual notice that the notice of sale had not been regularly posted for the full time required by law. This certificate of sale was assigned by the purchaser to one Phillips, and by him to one Johnson, and by the latter to Henry Davis, Jr., before the giving of the deed by the sheriff. In ¡May, 1838, one White recovered a judgment against Wood in the Supreme Court, which was also a lien on the premises, which judgment was assigned to Davis during the same year. Before the expiration of fifteen months from the day of sale .under the execution, and while Johnson was the owner of the certificate of sale, Davis presented to Mm the proper evidence of his right as a judgment creditor to acquire the title of the purchaser under the sheriff’s sale, and paid to him the amount required to be paid for that purpose, which was accepted by Johnson, who thereupon assigned the certificate to Davis. The sheriff, after the expiration of the time allowed creditors to redeem, executed a deed of the premises to Davis, the deed reciting that Davis acquired the right to the deed by a redemption from Johnson. TMs deed was delivered before the commencement of the foreclosure proceedings, but was not recorded. The court, at Special Term, gave judgment for the defendants, dismissing the complaint, which was affirmed at the General Term, and the plaintiffs have appealed to this court.</p> <p>Heirs-at-law, not made parties to a purchase, are not affected thereby. (10 John., 356; 20 N. Y., 412.) The sheriff’s sale was void, the notices not being posted for the required length of time. (2 R. S., 368, § 34; Olcott v. Robinson, 20 Barb., 148; S. C., 21 N. Y., 150; Sugden on Powers, 212, § 3.) Where the only consideration is the part payment of a precedent debt owing to the purchaser, he is not a purchaser in good faith. (Coddington v. Bay, 20 John., 637; Lawrence v. Clark, 36 N. Y., 128; Wood v. Robinson, 22 N. Y., 564; Dickerson v. Tillinghast, 4 Paige, 215; Stalker v. McDonald, 6 Hill, 93; Van Heusen v. Radcliffe, 17 N. Y., 583; Spear v. Myers, 6 Barb., 445; Mickles v. Colvin, 4 Barb., 304; Scott v. Howard, 3 Barb., 319, 321; 10 Barb., 97, 107.) Pratt, and the subsequent assignees of the certificates had sufficient notice of the sale. (Acer v. Wolcott, 1 Lans., 193.) An execution constitutes a mere naked power to sell. (Catlin v. Jackson, 8 John., 548; Wood v. Colvin, 5 Hill, 228; Steynett v. Brooks, 10 Wend., 212.) A strict compliance with the requirements of the statute, is necessary to give validity to a sheriff’s deed to a redeeming creditor. (Ex parte Bank of Monroe, 7 Hill, 177; People v. Sheriff of Broome, 19 Wend., 89; Gilchrist v. Camfort, 31 N. Y., 235; People v. Ransom, 2 Comst., 493; Waller v. Harris, 20 Wend., 555; Hardman v. Bowen, 39 N. Y., 196; Juliand v. Rathbone, 39 N. Y., 369; Torrey v. Milsbury, 21 Pick., 64.) As to the effect of the master’s deed, see Smith v. Gardner (42 Barb., 356); Butler v. Viele (44 Barb., 166); Lawrence v. Delano (3 Sandf., 333); Brainard v. Cooper (10 N. Y., 358, 359). The presumption that an officer has done his duty obtains only as against the public, and not against an individual, where title is sought to be subverted. (Bonner v. Eastman, 50 Barb., 639; Stryker v. Kelly, 2 Denio, 323; Adams v. S. & W. R. R. Co., 10 N. Y., 330.)</p> <p>It is not necessary that the first insertion of an advertisement be full six weeks before the sale. (Olcott v. Robinson, 21 N. Y., 151; Sheldon v. Wright, 7 Barb., 39; S. C. 1 Seld., 497; Bachelor v. Bachelor, 1 Mass., 255; 2 R. S., 369.) The plaintiff in an execution, who bids in the property is deemed a bona fide purchaser, within the meaning of the statute. (Wood v. Chapin, 3 Kern., 509, 519, 270; Cunningham v. Cassidy, 17 N. Y., 276; Mohawk Bank v. Atwater, 2 Paige, 54; Jackson v. Nelson, 18 John., 355; Wilson v. Neilson, 5 Barb., 565.) As to the term, good faith, see 2 R. S., 359, § 4, and 369, § 40; Tufts v. Tufts (18 Wend., 621); Petit v. Shepherd (5 Paige, 493); Scott v. Harward (3 Barb., 319.) A bona fide purchaser without notice, from one who purchased with notice, is protected. (Varick v. Briggs, 6 Paige, 323; Jackson v. Elstan, 12 John., 452; Wood v. Chapin, 3 Kern., 507.) The same is true as to fraud. (Bumstead v. Platner, 1 John. Ch., 213; Jackson v. Walsh, 14 John., 407; Jackson v. Henry, 10 John., 185; Froger v. Peck, 1 Barb. Ch., 220.) The recitals in the deed are presumptive evidence of their truth., (Wood v. Chapin, 3 Kern., 509; Hartwell v. Root, 19 John., 345; 1 J. J. Marshall, 447; 3 Gill. & J., 1 McCord, 212; 10 Mass., 105; Caine’s Cas. in Error, 18; Cowen & Hill’s notes, 297, 362.) The failure to duly file the assignments, does not affect the validity of the sheriff’s deed. Chautauqua County Bank v. Risely, 4 Denio, 489; People v. Ransom, 4 Denio, 145; Bank of Vergennes v. Warren, 7 Hill, 94 supra.) At common-law, an execution issued after the death of the defendant was valid if tested before his death. Center v. Billinghurst, 1 Cow., 33; 1 Ld. Raymond, 695; 3 P. Williams, 399; Tidd’s Practice, 587; Nichols v. Chapman, 9 Wend., 452; Day v. Rice, 19 Wend., 644; Clere v. Veer, Cro. Car.; Waghome v. Langmead, 1 B. & P., 571; Watson v. Markell, 4 Moore & S., 461; S. C. 2 Dowl. Pra. R., 810.) An execution issued before, can be properly executed after defendant’s death. (Den v. Hillman, 2 Halsted, 180; 1 Cow., 33 supra; Gra. Pr., 351, 807; 3 Bacon’s Abr. Ex. G., 2; 8 Bac. Abr. sci., fa. C., 4.)</p>

This action was commenced for the purpose (1) of having a conveyance by the defendant, Bonner, to his wife, declared void as against the plaintiff’s judgments, (2) of establishing the priority of the lien of the plaintiff’s judgments upon said property conveyed, and for the payment of the proceeds of the sale thereof, in the hands of the sheriff, to the plaintiff to apply on these judgments; and (3) to restrain the sheriff from making a return to certain attachments,…

The action was replevin for four cases of shoes, which came to the possession of the defendant’s testator from one Careras, to be carried and conveyed on steamer from Hew York to Havana, consigned to one Oliver.

<p>Where a third person, under the 197th section of the Code, deposits money with the sheriff, in order that the defendant may be released from arrest, if the plaintiff obtains judgment before bail have justified, he becomes absolutely entitled to an application of the money to the satisfaction of his judgment. But the claim of a plaintiff, thus seeking to have the property of a third person applied to the satisfaction of the defendant’s debt, is ati'ictismrd juris. It should be clearly established by proof, and no intendments will be indulged in its favor.</p> <p>Accordingly, where, after bail have been accepted by the deputy sheriff, and, at the request of the deputy, a third person deposits in his hands a sum of money as security to such deputy that the sureties will justify or the defendant surrender himself.—Reid, that the plaintiff could not have money so deposited applied to his judgment. (Peckham and Ahdkews, JJ., contra.)</p>

The judgment was for $5,000. This action was for a libel published by the defendants in the Sunday Mercury.

of the defendant. On the 19th day of July, 1856, Mary Ann Carr was the owner of certain real estate, and on the same day, together with her husband, made and executed a mortgage on the same. The same premises were, November, 1856, by deed, duly recorded, conveyed by the defendants, Mary Ann Carr and her husband, to the infant defendant, Henrietta, then being about six years of age.

Appear from a judgment of the late General Term of the Supreme Court, in the fifth judicial district, affirming judgment for the plaintiff on the report of a referee. Action upon a note made by “ Redwood Iron Manufacturing Company by S. 0. Sardam, agent,” payable to order of M. W. White for $10,000, and indorsed by White. The other facts are sufficiently stated in the opinion of the court.

.The action was for a specific performance of a verbal con•tract for the sale of an undivided half of certain lands, with mills and water privilege, and a large quantity of growing flax, and to recover compensation for certain defects in the title to the lands, as well as for deficiency in quantity, and also for a breach of warranty in respect to the flax.

<p>Appeal from the judgment of General Term of the Supreme Court, in the first judicial district, affirming the decision of the Special Term, dismissing the complaint and ordering judgment in favor of the defendant, for $419.06 costs and disbursements.</p> <p>[This action was brought upon a policy of insurance made by the defendant upon the life of M. J. Cluff, and assigned by him to B. E. Clark & Co., with defendant’s consent, and subsequently assigned to B. E. Clark. Cluff died on the 25th of February, 1864, on a plantation hired and occupied by him, in Louisiana, having been shot by one Cox. The Cox family were squatters on the plantation, and had stock, which had been eating the feed belonging to the place. Cluff had tried to induce Cox’s father to leave the plantation, but had not been successful. He had, some weeks before his death, sent a bill to the older Cox for the feed taken. On the day of the homicide, while standing by the gate of his plantation, he saw young Cox driving toward the house with a load of barrels filled with water. Cluff asked when the family were going to leave the place. Cox replied “ they were going soonCluff then asked when they were going to pay that bill; Cox replied they were not going to pay it; Cluff said, “ if you don’t pay it I will take your horsesCox replied, “ you had better try it nowCluff said, “ if you think I can’t I will let you see,” and thereupon began to unhitch the horses. He took the horses from the wagon, and upon Cox refusing to loose the lines, took from his pocket a small pen-knife, and was about to cut them, when on Cox telling him not to do that, he desisted. There was some evidence of a struggle, and blows on the part of both. Cox started, as if to go to the house, but after going a few yards, turned, drew a pistol, and shot Cluff through the heart. He cocked the pistol for a second shot, but upon Cluff crying out that he was hit, ran to the house. This is the account of one of the witnesses. The other testified to a struggle and blows.</p> <p>There was a provision in the policy that “ in case the insured shall die in the known violation of any law of the State he should be permitted to visit, the policy should be void, null and of no effect.” The complaint was dismissed upon the trial, on the ground that it appeared by the evidence that the death occurred in the known violation of the law of the State where he then was. The plaintiff claimed that, as matter of law, he was entitled to a verdict upon the evidence, and, if not, he was entitled to go to the jury upon the question whether the death was the result of any violation of law by the deceased, but this was refused.</p> <p>Cox was tried for the shooting by a provisional military tribunal and acquitted, on the ground that the homicide was justifiable.</p> <p>The facts raising the question, as to the evidence of the transaction, are sufficiently stated in the opinion of the court.</p> <p>The contract of life assurance is not a contract of indemnity, it is a mode of investment. (Dalby v. The India and London L. & A. Soc., 28 Eng. L. & E., 317; Miller v. The Eagle Life and Health Ins. Co., 2 E. D. Smith, 294; Rawle v. Am. Life Ins. Co., 36 Barb., 362; S. C., 27 N. Y., 282.) A policy of insurance is to be construed most liberally in favor of the assured. (Palmer v. Warren Ins. Co., 1 Story, 360; Yeaton v. Fry, 5 Cranch, 335.) And an exception in a policy is to be taken strongest against the assurer. (1 Duer on Ins., 161; Hindekofer v. Douglass, 3 Cranch, 1; Breasted v. The Farmers' Loan and Trust Co., 8 N. Y., 305; Hoffman v. The Ætna Ins. Co., 32 N. Y., 405.) Capture means lawful capture. (Swinnerton v. The Col. Ins. Co., 9 Bosw., 361; S. C., 37 N. Y., 174.) The exception, “ by suicide,” not. included, where the person was insane. (Breasted v. Farmers' Loan and Trust Co., 8 N. Y., 305.) The cause of death must be the proximate cause. (3 Kent’s Com., 302; Arnould on Ins., 764; Williams v. The Suffolk Ins. Co., 3 Sum., 276.) This maxim is applicable, “ Causa proxima, non remota spectatur." (Patrick v. Com. Ins. Co., 11 Johns., 14; Tilton v. Hamilton Ins. Co., 14 How., 372.) Dying in the known violation of law, “ must be confined to the case where the assured died in the commission of a felonly.” (Harper's Adm. v. The Phœnix Ins. Co., 19 Mo., 506; 39 Mo., 122; Cluff v. The Mu. Ben. Life Ins. Co., 13 Allen, 309; 99 Mass., 319; Breasted v. Farmers’ Loan and Trust Co., 8 N. Y., 304.) Trespass against another’s property will not warrant the use of a deadly weapon. (Commonwealth v. Drew, 4 Mass., 391; State v. Brandon, 8 Jones, Law, 463, N. C.; State v. McDonald, 4 Jones, Law, 19; Noles v. State, 26 Ala., 31; People v. Kirby, 2 Park. Cr. C., 28.) Death caused by resistance to illegal arrest is manslaughter. (Commonwealth v. Carey, 12 Cushing, Mass., 246; Roberts v. The State, 14 Miss., 138; Jones v. The State, 14 Miss., 409; Rex v. Patience, 7 Carr. & Payne, 776.) Cox violated the law of his State in carrying a pistol. (R. S. of La., 155, § 116.) It is the turpis contractus,” “the object repugnant to justice or public policy,” which makes the contract void. (Fairbrother v. Ansley, 1 Camp., 348, note; Gray v. Matthias, 5 Vesey, 286; Trovinger v. McBurney, 5 Cow., 253; Wait v. Day, 4 Denio, 439; Fellows v. Emperor, 13 Barb., 92.) If the contract is void in part, it is void in all. (Burt v. Place, 6 Cow., 431; Barton v. Port Jackson Plankroad Co., 17 Barb., 397; Pepper v. Haight, 20 Barb., 429.) As to the effect of this condition on bona fide assignees, see Moore v. Woolsey (28 Eng., L. & E., 251); White v. British Empire Mutual Life Ins. Ass., (7 Eng., Eq., Cases, 394). No presumption arises when the law of a foreign State is the ground of a claim or defence. (Cow. & Hill’s note, 1136; Pomeroy v. Ainsworth, 22 Barb., 129; 8 John, 193; Cutler v. Wright, 22 N. Y., 47).</p> <p>The assured took the risk of his conduct, and must bear it. (Stone v. Hooper, 9 Cow., 154; Allaire v. Orland, 2 John. Cas., 52; Conerty v. Benton, 17 John., 142; Mount v. Waits, 7 John., 434; Burt v. Place, 6 Cow., 431, 433; Moore v. Woolsey, 28 Eng. L. & E., 248.) If the event be such as the most explicit of policies could not relieve, it remains unaided in spite of general terms. (Phillips on Insurance, §§ 210, 219; Campbell v. Charter Oak Ins. Co., 92 Mass., 215; Kelley v. Home Ins. Co., 97 Mass., 288.) Criminal law means any rule for the violation of which the State, in its own name, exacts a penalty or inflicts a punishment. (4 Black’s Com., 5 N. 4, Christ. & Wend., ed.) Ho evidence having,heen given by either side of the law of Louisiana, the presumption is that it is the same as the common-law of this State. (Holmes v. Broughton, 10 Wend., 75; Starr v. Peck, 1 Hill, 270; Legg v. Legg, 8 Mass., 99; Savage v. O’Neil, 42 Barb., 374; Ruse v. Mut. Ben. Life Ins. Co., 23 N. Y., 516; Cutler v. Wright, 22 N. Y., 472; Cheney v. Delafield, 23 Barb., 498; Robinson v. Donalley, 3 Barb., 20; Langton v. Young, 33 Vt., 136; Smith v. Whittaker, 23 Ill., 367; Thompson v. Moore, 2 Cal., 99; Smith v. Gould, 4 Mo., P., 21; Brown v. Gunning, D. & R. N. P., 41 n.; McCormick v. Garrett, 5. D. M. G., 278; Douglass v. Cray, 2 Dow., 171; 1 Green, Ev., § 488, a.) Primary proofs are conclusive, and not open to contradiction by the plaintiff at the trial in any manner whatever. (Campbell v. Charter Oak Life Ins. Co., 92 Mass., 213; Cluff v. Mut. Ben. Life Ins. Co., 99 Mass., 317.) There was ‘no question for the jury. The court had no alternative but to dismiss the complaint. (Loomis v. Meeker, 25 N. Y., 361; Rudd v. Davis, 3 Hill, 288; affd., 7 Hill, 529; Haring v. Erie R. R. Co., 13 Barb., 9.)</p>

In 1844, William Malcolm died, possessed of real estate, which he devised to his children, of whom the plaintiff Charlotte was one.

(Reported below in 52 Barb., 436.) This action was brought by the plaintiffs, as commissioners of pilots, to recover certain penalties given by the act of 1853 (chap. 467, § 29), regulating pilotage in the port of Yew York, for employing a person not holding a license from the plaintiffs, or under the laws of Yew Jersey, to act as pilot. The cause was tried by Davis, J., without a jury.

Becovery, $3,366.52. This action was brought upon a fire insurance policy, issued by the defendant on the 27th of February, 1865, in'suring the estate of Daniel Boss ” for one year to the amount of $3,000 against all loss by fire on the Hew Berlin cotton mill and the fixed and movable machinery therein. The mill was destroyed by fire June 28th, 1865, and due proof of loss was furnished. The claim was assigned to the plaintiff.

This action was for the recovery of an undeclared dividend for the year 1869, upon preferred stock. The New York and Erie Railroad Company (the predecessor of the appellant), became bankrupt in 1859. It was largely indebted to mortgage creditors and others.

This was an action' to recover money awarded by the commissioners -of the Central park extension, to the defendant, Palmer, for land taken for that extension. The amount awarded was $76,040. The plaintiffs claim five undivided eighths, in fee simple, of the land for which, the award was made.

The action was to recover $3,000 claimed to be due the plaintiff, under a contract to build an organ for the defendant, a religious society. The plaintiff was a musical instrument maker, and made a contract with the defendant, represented by one Talker, their president, to build an organ in their synagogue to be finished at a fixed day.

The action was brought upon the alleged breach of a charter party, made between the parties on the 21st of October, 1864, by the terms of which the plaintiffs chartered the ship J. P. Wheeler to the defendant, for a voyage from Cow Bay to New York, with a cargo of coal to be furnished by the defendant. The defendant agreed to furnish a full cargo of coal for the vessel, and to pay freight at the rate of $7.50 per ton of 2,240 pounds.

(Reported below, in 1 Bans., 141.) In Hovember, 1866, Charles Eichter was the owner of a horse, upon which, together with other personal property, he gave a mortgage to one Sonnick, which was duly filed. Subsequently, Sonnick assigned the mortgage to one Stillwagen. In 1867, Richter sold the horse to the defendant, he to one Douglass, he to the plaintiff and the plaintiff to one Smith.

The defendants occupy several lots of ground as owners and lessess, in the city of Brooklyn, conveyed by the plaintiff to one Worcester, from whom title is derived. Held: that a “ distillery ” had been erected, and found as particularly stated in the opinion; and adjudged that the defendants be perpetually enjoined and restrained from carrying on the business carried on by them on said premises.

<p>Appeal from the order of the General Term of the Supreme Court, in the first judicial district, reversing the judgment rendered upon the verdict of a jury in favor of plaintiff.</p> <p>This action was brought to recover back from the North-era. Light Oil Company the sum of $1,000, which the plaintiff alleged he had paid to the company on a subscription by him, for one hundred shares of its capital stock, on the ground that such subscription had been procured by false and fraudulent representations made by the company, and that the plaintiff had, upon the discovery by him of the fraud, rescinded the contract, tendered back to the company the stock he had received, and demanded a return of the money he had paid, which demand was not complied with.</p> <p>The complaint alleged that the company, “ for the purpose of effecting sales of its capital stock, and inducing the plaintiff and others to subscribe therefor, caused certain prospectuses to be issued and distributed by its officers and agents, and also certain advertisements to be published in the public newspapers of the city, of New York, and elsewhere, stating ” (to give the substance of the representations alleged to have been false), that the company had, among other pieces of property, an interest in the “ Smith Jones ” farm on Oil creek, Venango county, Pennsylvania, namely: Four-ninths of all the oil on three acres of said farm; and an interest in the “Widow McClintock” farm, namely: One-fourth of all the oil in the “ Hammond ” well, which was one of the largest flowing wells on the creek, and averaged more than 200 barrels of oil a day; that the company’s property consisted of about 2J0 acres in fee and lease-hold interest, and about 200 acres in fee simple, on which were thirty-eight wells, either then being drilled, or pumping, or flowing; and that from the wells then in operation the product to the company was over 125 barrels of oil per day.</p> <p>The falsity of the representations was alleged to consist in this : That the company did not own any interest whatever, either in the “ Smith Jones ” farm, or in the “ Hammond ” well, on the “ Widow McClintock” farm; that there were not thirty-eight wells in progress or in operation on the property of the company; and the product of oil from the property of the company was much less than 125 barrels per day; and that the falsity of the representations in these respects was known to the officers of the company.</p> <p>The answer denied the making of any of the representations alleged, and set forth that the plaintiff did not acquire his stock from the company, but from certain other parties. It admitted that the company did not own any interest in the “Smith Jones” farm, or the “Hammond” well, the titles to those pieces of property having been rejected as invalid.</p> <p>The plaintiff proved by one Philip A. Lockwood that he (Lockwood) sold to the plaintiff 100 shares of the stock of the company, and that he acted in making such sale under the employment and as the agent of a firm called Avis, Plummer & Co. He obtained this employment by writing a letter to a firm styled John Boyce & Son, who were named in an advertisement in a newspaper as subscription agents of the company. It appears that there was a connection between John Boyce & Son and Avis, Plummer & Co., and that the letter thus written by Lockwood came to the hands of Avis, of the latter firm, who called upon Lockwood and employed him. Avis gave to Lockwood several papers relating to the enterprise of forming the Northern Light Oil Company. These were: 1. A paper entitled “ mining affairs.” 2. A paper entitled “ Northern Light Oil Company of New York and Pennsylvania.” 3. A paper entitled “ prospectus of the Northern Light Oil Company of New York,” with a subscription paper attached thereto, which the plaintiff signed.</p> <p>These papers were exhibited by Lockwood to the plaintiff and the latter signed the subscription paper and paid Lockwood $300, which the latter remitted to Avis, Plummer & Co., and received from them a receipt therefor, signed by Silvanus J. Macy, “ trustee.” He subsequently received from the plaintiff other sums on account of this stock, which he remitted to Avis, Plummer & Co., or to Macy, directly, and received therefor like receipts, signed by Macy in like manner, and after the requisite number of payments were thus made, he received from Macy a certificate that the plaintiff was entitled to 100 shares of the stock of the company, and delivered it to the plaintiff.</p> <p>The contents of these papers, so far as they bear upon the points decided, are sufficiently stated in the opinion of the court.</p> <p>At the conclusion of the trial the defendant’s counsel asked the court to charge five propositions, of which the judge charged the fifth as requested and refused to charge the others. Of these, the first, second and fourth were that there was not sufficient evidence to establish certain facts. The third is exactly stated at the beginning of the opinion of the court, and was to the effect, that the plaintiff could not recover if Avis was acting for himself and not the company in employing Lockwood.</p> <p>The defendants excepted to the charge “ thkt the company did receive the avails of that money; ” that is, of the money paid by the plaintiff to Lockwood.</p> <p>The defendants further excepted to so much of the charge “ as leaves it to the jury to determine whether the prospectus was a declaration of intention or design to acquire certain property,’.’ and in particular to that part of the charge which is in the following words : “ You will determine, therefore, in the first place, whether the prospectus was simply a declaration of intention or design to accomplish these results if they could. If upon this paper the plaintiff had the right to believe that it was reasonably certain that the company would acquire the property, and that the company was organized with a view to ownership of these pieces of property, then if they did not obtain it, he would be entitled to recover.” The jury found a verdict for the plaintiff.</p> <p>A representation, the falsity of which will avoid a contract, or afford a ground of action for damages, must purport to be an existing fact. (P. & J. P. Plankroad Co. v. Griffin, 21 Barb., 454, 466; see, also, Kennedy v. The Panama, etc., Mail Co., 2 Law Rep., Q. B., 580.) The construction of all writings, when no parol evidence is received, belongs exclusively to the court. (1 Greenleaf on Ev., § 277, note.) The contract sought to be rescinded, was not made between the plaintiff and the company. (H. & D. Plankroad Co. v. Rice, 7 Barb., 157; T. & B. R. R. Co. v. Tibbets, 18 Barb., 297; P. & J. P. Plankroad Co. v. Griffin, 21 Barb., 454; R. & W. Plankroad Co. v. Barton, 16 N. Y., 457.)</p>

On the 21st of June, 1864, at Louisville, Ky., one Hunter, the plaintiff’s agent, delivered to the Jeffersonville Eailroad Company, fob .transportation to Hew York, certain merchandise, the property of the' plaintiff. The company signed a bill of lading, which was sent to the plaintiff, together with an invoice of the merchandise.

(Reported below in 2 Lans, 199.) Tb e defendant was a Canadian corporation and á common carrier between Suspension Bridge, in the State of Mew York, and Detroit, in the State of Michigan. Its route was from Suspension Bridge by rail to Windsor, Canada, and thence across the Detroit River by ferry to Detroit.

first judicial district, affirming the order of the New York Special Term, sustaining a demurrer to the complaint. The defendant was married in Massachusetts, in 1848, to one Pomeroy. In 1855, Pomeroy went thence to Ghiacgo to procure a divorce for a cause which would not be recognized by the laws of 'Massachusetts, and to evade the laws of that State. The defendant went to Chicago; appeared in the action, and put in an answer.

<p>Where money is advanced by a partner under no legal obligation to do so, although to be used in the partnership business, he has a right to impose conditions, and prescribe the security for the advance, and the contract then made cannot be varied by any cotemporaneous or prior verbal agreement, or affected by the business relations of the parties.</p> <p>There is no rule forbidding one partner to sue another at law in respect of a debt arising out of a partnership transaction, if the obligation or contract, though relating to the partnership business, is separate and distinct from all other matters in question between the partners, and can be determined without going into the partnership accounts.</p> <p>The plaintiff being interested in a joint stock company (unincorporated), and the company needing money to pay debts accrued in the partnership business, the defendant and S., being also interested and principal managers of the company, applied to the plaintiff to raise money for that purpose at the bank upon the note of the defendant, payable to and indorsed by S. This he did, and the note being unpaid at maturity, he paid and took a transfer thereof.&emdash;Held, that he could recover the amount thereof against the defendant, and that parol evidence to show that, at the time the note was made, the plaintiff agreed to pay one-third of it, was inadmissible to vary the contract.</p>

94 in favor of the plaintiffs. This was an action for damages sustained by the plaintiffs, who paid the sum of $10,000 on the faith of what was claimed to be a false and fraudulent message, negligently sent by the defendant, and delivered to the plaintiffs, who were bankers at Pithole, Pa. The defendant had an office at that place, as well as at Titusville, Pa.

This action was brought to establish the right of the plaintiff to the use of an alley on the south side of his lots, in the village of Saratoga Springs. The lots were conveyed by one Maxwell and wife to the plaintiff.

Action upon two promissory notes given by the defendant to the plaintiff, and for goods sold and delivered. The action was tried by a referee. The claim for goods sold was am all in amount, and was not contested. The notes were given in part payment for a steam engine and boilers, sold by the plaintiff to the defendants.

. Appeal from an order of the Q-eneral Term of the Supreme Court, in the eighth judicial district, reversing the judgment entered on the verdict of a jury in favor of the plaintiff for $2,700, and granting a new trial. This was an action brought to recover damages for the breach of covenant to put down an oil well.

<p>In an action to recover for personal injuries caused by the defendant’s car, in which the plaintiff was a passenger, leaving the track, alleged to have occurred on account of the defective condition of such track,—Held (Chief Judge and Peokham, J., contra), that the admission of evidence, on behalf of the plaintiff, of the condition of the road at a point half a mile distant from the place of the accident, and evidence that new ties were subsequently put in at points in the neighborhood of the accident, was erroneous.</p> <p>In such an action, where the injuries are claimed to have resulted in a permanent disability of the plaintiff to perform mental or physical labor, the defendants proved that, several months after the injury, the plaintiff had performed such labor. The evidence of the plaintiff in his o,wn behalf that, at the time this labor was being performed, he declared to a person casually present, and with whom he had no business relation, that he then felt ill, was inadmissible, either to controvert the defendant’s proof or to show statements of his own out of court consistent with his testimony. (Allen, J.)</p> <p>It seems that since parties have been made by the statute competent witnesses in their own behalf, there is no longer the necessity for giving the declarations of living parties in evidence; which was formerly the reason of the rule admitting them in certain cases; and the reason of the rule ceasing, the rule itself, adopted with reluctance and followed cautiously, should cease. (Allen, J.)</p>

Hallett wrote a letter to McHenry, both then being in England, upon which letter McHenry wrote an indorsement and returned the letter to Hallett.

On March 10th, 1868, at the Exchange Sales Rooms, in the city of Hew York, three lots of land on the south-easterly corner of… Held: as a conclusion of law, that the defendant was seized of an undivided half part of the three lots as trustee for the plaintiff, and accordingly judgment was entered requiring the defendant to execute a conveyance thereof to the plaintiff upon his payment of one-half of all sums paid out, and upon his covenanting to assume one-half of…

The plaintiff sued to recover for services rendered as counsel.

<p>Appeal from a judgment upon an award entered in the Common Pleas of the city of Hew York, pursuant to a submission and the statute regulating arbitrations, for $74,318.95, and also from the orders of the court directing the entering of the judgment and refusing to vacate the award.</p>

Appear from the judgment of the late General Term of the Supreme Court, in the seventh judicial district, affirming the judgment of the Special Term, entered upon the report of a referee in favor of the plaintiff.

The plaintiffs were commission merchants, and brokers in petroleum and its products. They also bought and sold on their own account. To cover all their interests and those which they represented, they took such policies of insurance as were adapted to the various exigencies of their business, and the necessities of the persons with whom they dealt.

This action was brought to recover 123 barrels of petroleum oil taken by the defendant. The answer sets up that the oil was the property of one Stokes, and had been taken by the defendant, as sheriff of Kings county, on execution, to satisfy two judgments, recovered by the Oneida County Bank against Stokes. On the 6th of December, 1866, Stokes, the judgment debtor, was the owner of and carried on an oil refinery in Brooklyn. W. H. Chapman was his superintendent.

This action was brought to recover the value of 298 bags of wheat, which were shipped on the defendant’s road at Kalamazoo, Michigan, on the 16th of October, 1865, to go to Detroit by rail, and thence to Buffalo, K. Y., by propellers on the lakes, thence to Albany, IT. Y.s by the Kew York Central railroad. The bags were consigned to Mills & McMartin, Albany, K. Y., by lake and rail, but no way bills or shipping receipts were delivered to the plaintiff’s agent at Kalamazoo.

Action by the plaintiff to recover for injuries sustained by her while riding as a passenger in a car of the defendants, resulting from a collision with a freight car of the Harlem Railroad Company, at a point where the defendant’s road and that of the Harlem Railroad Company intersect and cross each other at an acute angle, in the city of Hew York.

' This action was brought for the purpose of restraining the defendant Ramsey from further prosecuting a suit commenced by him against the Erie Railway Company, Jay Gould, James Fisk,. Jr., eb al., in the Supreme Court in the sixth district.

<p>Appeal from the judgment of the late General Term of the Supreme Court in the fifth judicial district, affirming a judgment in favor of the plaintiffs.</p> <p>The Second National Bank of Oswego was incorporated under the national currency act, approved February 25th, 1863; their articles of association were dated January 15th, 1864, and their by-laws adopted March 22d, 1864. • The certificates of stock .issued to the plaintiffs’ assignor stated in the body of the certificate: “ This stock is not transferable until all liabilities of the stockholder to this bank are paid.” This was a transcript of one of the by-laws of the institution. Mr. Chandler, the plaintiffs’ assignor, was a stockholder in the bank; he was also a private banker at Mexico, in this State. In May, 1861, he made a general assignment to the plaintiffs for the benefit of his creditors. Under this assignment, the plaintiffs claim the stock in question. Chandler acted as the correspondent of the bank in his vicinity, in making collections, and they also made collections for him. Each also paid to the holders checks drawn on the other. The accounts arising from these mutual trandbctions were settled from time to time; no interest was allowed by either party to the other. At the time of the assignment, the balance due from him to the bank for moneys collected for them was about $4,000. For this they claim a lien upon the stock in question.</p> <p>On the question of the validity of the by-law. (Child v. Hudson’s Bay Co., 2 P. Williams, 201; Union Bk. v. Laird, 2 Wheat., 390; McDowell v. Bk. of Will., 1 Har. (Del.), 27; Walsh’s Assignees v. Bk. of N. A., S S. & R.., 73; Cunningham v. Ala. L. Ins. Co., 4 Ala., 652; Angell on Corp., 5 ed., § 355; 1 Geo., 43; 26 Conn., 144; 9 Missouri, 149.)</p> <p>This court cannot look into the evidence to see whether other facts than those found by the judge may not be discovered. (Mosher v. Hotchkiss, 3 Keyes, 161; Farnam v. Hotchkiss, 2 Keyes, 9; Marco v. Liverpool Co., 35 N. Y., 664; Colwell v. Lawrence, 38 N. Y., 71; Mason v. Lord, 40 N. Y., 477; Code, §§ 267, 268, 272.) The by-law was void. (Leggett v. Bk. of Sing Sing, 24 N. Y., 283; Bk. of Attica v. Manufacturers' Bk., 20 N. Y., 501; Ln re Long Island Co., 19 Wend., 37.) The money' advanced by the bank was a loan. (Marine Bk. v. Fulton Bk., 9 Wallace, 252; Tinkham v. Heyworth, 31 Ill., 319; Morse on Banking, 19, 322; Bouvier’s Law Dictionary, title, “Loan.”</p>

<p>It is the blear duty of a person as he comes near to and upon a railroad crossing, to use all proper precautions to avoid injury, and the least he can do is to look in both directions. If he does not do so, and this omission contributes to his injury, he is guilty of such negligence as will bar his recovery, notwithstanding the negligence of those in charge of the train in omitting to sound the whistle or ring the hell.</p>

<p>Appeal from the judgment of the General Term of the Superior Court of the city of Hew York, affirming the judgment of the circuit in favor of defendant.</p> <p>In June, 1858, the defendant recovered a judgment by default, in the Superior Court of the city of Hew York, against the plaintiff, for $1,754.78. One O’Brien was the attorney of record for Hendrickson. In July of tke same year, this judgment was assigned to Callaghan & Miller, who had been duly substituted as attorneys for Hendrickson. The assignment was absolute in form, and transferred the whole judgment, but, in fact, was a security for $1,000 due Callaghan & Miller for services, and $100 lent him by Callaghan. On the 13th of July, the default was opened on Beers’ application, the judgment to stand as security, and the suit was referred. The referee decided against the plaintiff Beers, and a second judgment was entered in favor of defendant Hendrickson, against Beers for $2,155.67. From this judgment, Beers appealed to the General Term without giving security; this judgment was affirmed, and a third judgment was entered against Beers for the' full amount of the second judgment, with interest and costs of appeal, making $2,259.15. Callaghan & Miller issued execution on the third judgment, which was returned wholly unsatisfied. The firm of Callaghan &.Miller was dissolved, and about two years afterward Miller acknowledged a satisfaction piece of the third judgment, which was filed with the clerk of the court. This was in consideration of $200 paid by the plaintiff to Miller, entirely without' the knowledgé or consent of either Callaghan or Hendrickson. Miller did not have the possession of the assignment, but stated to the plaintiff that he was the owner. In September, 1866, the first and second judgments being still on record, Beers caused satisfaction pieces of them to be presented to Callaghan, and requested him to execute them. This was refused. ■ This action was against Hendrickson and Callaghan for a decree that these two judgments are paid, and that Callaghan be required to satisfy them of record, and for such other relief as the court may deem the plaintiff entitled to. Callaghan always retained possession of the assignment.</p> <p>As to merger of judgments, cited Pierce v. Thomas (4 E. D. Smith, 354); Union Bk. v. Mott (8 Bosw., 591); Gilchrist v. Comfort (26 How., 394); Ford v. Whitridge (9 Abb., 416); Miller v. Ins. Co. (3 E. D. Smith, 184); Beardsley S. Co. v. Foster (34 How., 97); Binsse v. Wood (37 N. Y., 532); Briggs v. Thompson (20 John., 294); Halsey v. Flint (15 Abb., 371); Eno v. Crooke (6 How., 462); De Agreda v. Mantel (1 Abb.,130); Anderson v. Nichols, 4 Rob., 630.) That the original claim of Hendrickson merged in the first judgment, and the assignment to O. & M. vested in them the whole of the claim. (Mallory v. Leach, 14 Abb., 449, note; S. C., 23 How., 507; Goodrich v. Dunbar, 17 Barb., 644; Nichol v. Mason, 21 Wend., 341; Oakley v. Aspinwall, 4 Comst., 519; Besley v. Palmer, 1 Hill, 482; Suydam v. Barber, 18 N. Y., 470; Doughty v. Hope, 3 Denio, 249; Pearce v. Kearney, 5 Hill, 82; Claff v. Meserole, 38 Barb., 665.) The assignment of a judgment transfers the debt as well as the security, the debt being merged in the judgment. (Ellsworth v. Caldwell, 18 Abb., 20; Pattison v. Hull, 9 Cow., 747; De Grant v. Graham, 1 N. Y. Leg. Obs., 75; Thomas v. Hubbell, 35 N. Y., 120; Carnes v. Platt, 40 N. Y., 181.) That one of two joint assignees represents both, and his acts are binding on both, he cited Pierson v. Hooker (3 Johns., 68); Bulkley v. Dayton (14 Johns., 387); Bruen v. Maynard (17 Johns., 58); Jacomb v. Harwood (2 Ves. Sr., 265); Murray v. Blatchford (1 Wend., 383); Wells v. Evans (20 Wend., 251); People v. Keyser (28 N. Y., 226); Bowes v. Seger (8 W. & S., 222); Ruddack's Case (6 Co., 25); Austin v. Hall (13 Johns., 286; Fitch v. Forman (14 Johns., 172); Betzhower v. Stockton (4 Cr. C. C. 695). He also cited numerous cases as to the effect of the satisfaction for a less sum in extinguishing the claim.</p> <p>On the question of the satisfaction of a judgment by a less sum than the full amount, Harison v. Close (2 John., 448); Seymour v. Minturn (17 John., 169); Lynch v. Welch (Seld. Notes, 13); Ward v. Browhead (14 L. & Eq., 502); Crafts v. Wilkinson (4 Ad. & Ellis, N. S., 74); Bleakley v. White (4 Paige, 654); Lewis v. Woodruff (15 How., 539); Carrington v. Crocker (37 N. Y., 338, 340); Moss v. Shannon (1 Hilt., 175). On the question of Miller’s want of authority to act, Green v. Miller (6 John., 39); Sinclair v. Jackson (8 Cow., 543); Downing v. Ruger (21 Wend., 178); People v. Williams (36 N. Y., 441); McGregor v. Comstock (28 N. Y., 237). He also cited Young v. Bushnell (8 Bosw., 14, 20); Blake v. Tucker (12 Vt., 44); Lownds v. Remsen (7 Wend., 35); King v. Harris (34 N. Y., 330); Wolcott v. Holcomb (31 N. Y., 135); Ward v. Dewey (16 N. Y., 522); Swan v. Saddlemire (8 Wend., 676, 681).</p>

<p>A limited and specific grant of the right to dig and stone up a certain spring, and conduct the water therefrom through the grantor’s land, by a specified pipe, to the grantee’s house, with covenant of warranty, does not render the entire premises servient to the easement; and the grantor may lawfully sink another spring, but twenty-seven feet distant, although the effect is to render the first one useless.</p>

district, on an appeal from an order of the Special Term, striking out an answer and sustaining a demurrer. This action was brought to recover the amount of a “ returned tax” illegally assessed by the board of supervisors of Livingston county, to the plaintiff, in the year 1867.

Robinson, Esq., sole referee. The action was brought upon a contract of guaranty. The facts sufficiently appear in the opinion of the court. cited Carman v. Pultz (21 N. Y., 549); Young v. Hunter (2 Seld., 204); Moses v. Bierling (31 N. Y., 464); Smith v. Gugerty (4 Barb., 621); Farnham v. Ross (2 Hall, 161); Jones v. Judd (5 Comst., 411); Green v. Haines (1 Hill, 254).

Henry L. Knowles, referee. This was an action of ejectment tor certain lands in St. Lawrence county. It was commenced hy Harvey Mattoon as sole plaintiff. An answer was interposed, setting up adverse possession, and the widow and heirs-at-law were thereupon made plaintiffs, under section 111 of the Code. The plaintiffs are the widow and heirs of one John Mattoon.

The place of trial named in the complaint is Putnam county; the trial was had at Poughkeepsie, without any order for the change of the place of trial, but without objection at the trial. The plaintiff claimed to be the owner of an iron mine, known as the “ Pratt Iron Mine,” in Putnam county.

<p>Two appeals from orders of the General Term of the Supreme Court, in the second district, affirming judgments of foreclosure with costs and five per cent allowance, rendered at Special Term.</p> <p>These were actions for the foreclosure of two mortgages on the same premises, both commenced at the same time.</p> <p>The defendant, Margaret Kenny, was the owner in fee" of the mortgaged premises up to the afternoon of June 3d, 1869, when the appellant, Wheeler, purchased the same. Summons was served on Wheeler June 4th, 1869.</p> <p>The complaints are in the usual form for foreclosure of a mortgage. The answer alleges defect of parties, in that one Griswold had recovered a judgment against the defendants, Edward Kenny and Margaret Kenny, Margaret being then owner in fee of the mortgaged premises, which judgment, was docketed before the commencement of the action, and in August, 1868, and was for $182.09.</p> <p>It appeared on the trial, that this judgment was rendered in an action of ejectment, “against Edward Kenny, Margaret Kenny, his wife, and William Kenny,” and that it had been satisfied, as to Edward and Margaret, subsequent to the service of the answers in these actions, and on the 22d of October, 1869.</p> <p>Judgment was rendered in each action for foreclosure and sale, with costs and an additional allowance of five per cent, to be paid from the avails of sale.</p> <p>that the judgment was a lien, cited Corn. Exch. v. Babcock (42 N. Y., 613); Taylor v. Crane (15 How., 358); Schuyler v. Marsh (37 Barb., 350); Eckerson v. Valmer (11 How., 42); Howland v. Fort Edward Paper Mill Co. (8 How., 505); Horton v. Payne (27 How., 374); First Nat'l Bank of Canandaigua v. Carlinghouse (53 Barb., 615); Thompson v. Sargent (15 Abb., 452). That Griswold was a necessary party, he cited Ensworth v. Fanning (4 John. Ch., 605); McGown v. Yerks (6 John. Ch., 450).</p> <p>urged that satisfaction of the judgment was analogous to a discontinuance before notice of trial when there is plea of another action pending. (Averill v. Patterson, 10 N. Y., 500; Swart v. Borst, 17 How., 69; White v. Smith, 4 Hill, 166.) That Griswold was never a necessary party, citing Baldwin v. Kimmell (16 Abb., 354); Valentine v. Lloyd (4 Abb. N. S., 371); Corn. Exch. v. Babcock (42 N. Y., 613); Porter v. Mount (45 Barb., 422). That costs were in the discretion of the court. (Pratt v. Ramsdell, 16 How., 59; Barton v. Cleveland, id., 364).</p>

The action was brought to recover the value of sixteen bales (part of fifty-four bales) of cotton, shipped by the plaintiff from Cineifinati to Hew York. The agreement for transportation was made at Cincinnati between the 12th and 15th of Hovember, 1865, by the plaintiff, with Grant F. Cooke, as agent for a line of railroads, of which that of the defendant formed a part.

The action was brought to recover damages for an alleged conversion of certain bonds deposited with the defendant as security for a loan of $15,000. After the bonds were so pledged, the plaintiff overdrew his account with the defendant in one day to the amount of some $53,000.

<p>Appeal from an order of the General Term of the Supreme Court in the fourth district, affirming a judgment for the plaintiff, entered upon the report of Hon. A. B. James, sole referee.</p> <p>The following facts were found by the referee: Joseph H. Sanford died in 1866, leaving the plaintiff his widow. In June, 1864, he had loaned to the defendant, who was one of his sons, $5,000 of his own money, and taken from him a promissory note therefor, with interest, payable to the order of Joseph H. and Maria Sanford. Before his death, a committee of his estate had been appointed, under a commission de Iwnatico, to whom the plaintiff, in delivering his personal property, had delivered this note.</p> <p>By his will, which was duly admitted to probate, the plaintiff and the defendant and another son were named executrix and executors, all of whom accepted, qualified, and entered upon the discharge of that trust.</p> <p>During his life he kept the note in his possession and received several payments thereon, and his committee received two payments thereon. After his death the committee handed this note to the plaintiff, as executrix. The action is by the plaintiff, in her own name, for a balance of some $4,800 due on the note.</p> <p>On the trial the defendant offered to prove, that the deceased had intended to bequeath this note to the plaintiff, but, it being suggested that there might be some question about such a bequest, and that it would be better to bequeath a certain sum in lieu of it, and after consultation with the plaintiff, he directed the insertion in his will of a bequest to the plaintiff, among other things, of $10,000, in lieu of the note, which was done, and the will so drawn is the will admitted to probate. This was objected to as immaterial; that the form of the note must control the rights of the parties, and that a recovery can only be defeated by proving that deceased reduced the note to possession in his lifetime, as it is an executory contract, which objection was sustained.</p> <p>The will was put in evidence, and contained this clause, after the bequests to the plaintiff: “ All of which is to be accepted and received by her, in lieu of dower and every and all claims on my estate.”</p> <p>The defendant offered to prove, that after the executors and executrix had qualified as such, the plaintiff signed a receipt, as executrix, acknowledging that she had received the note from the committee, as part of the personal assets of the testator. This was also objected to and excluded.</p> <p>The defendant also offered to prove that the plaintiff, as executrix, produced the note to the appraisers as part of the personal estate of the deceased for appraisal, and the same was so appraised. This was also objected to as immaterial, and excluded.</p> <p>The defendant also offered in evidence the inventory, made by the appraisers and executrix, showing the note inventoried and appraised as part of the personal estate of deceased, which was excluded on the same objection.</p> <p>The referee found, as conclusions of law:</p> <p>1st. The action properly brought in the name of the plaintiff as surviving payee.</p> <p>2d. The defendant “ is not in a position as sole defendant in this action, to set up the legal or equitable rights of the estate of Joseph H. Sanford, deceased, to the said note or its proceeds, if any such rights exist; that such rights can only be determined when all the proper parties are before the court.”</p> <p>3d. That the plaintiff have judgment.</p> <p>insisted that the plaintiff was not the real party in interest under section 111 of the Code, citing Houghton v. McAuliffe (26 How., 270); Clark v. Philips (21 How., 87); Eaton v. Alger (57 Barb., 179); James v. Qhalmer (2 Seld., 214); Eillmore v. Culver (24 Barb., 656); Dewitt v. Brisbane (16 H. Y., 509); Snidery. Ridgway (49 111., 1 Alb. L. J., 336). That defendant, as executor, is bound to protect the estate, and payment to an unauthorized person would not protect him. (Decker v. Miller, 2 Paige, 149; Smith v. Lawrence, 11 id., 206; Dayton, 549.) The evidence offered was proper to rebut anypresximption of a gift of the note to the wife. (Borst v. Spelman, 4 N. Y., 288 ; Rom. G. Asylum y. Strain, 2 Bradf., 34; Scott y. Simes, 10 Bosw., 314; Craig v. Craig, 3 Barb. Ch., 78; Jaques v. Short, 20 Barb., 269; Brown v. Brown, 23 id., 565; Geary v. Page, 9 Bosw., 290; Eingdon v. Bridges, 2 Vern., 67; Glaistery. Hewer, 8 Ves., 99; Bryant v. Bryant, 42 U. Y., 17; Smith v. Maine, 25 Barb., 34.)</p> <p>cited Borst v. Spelman (4 H. Y., 288); Draver v. Jackson (16 Mass., 479); Roman Catholic Orphan Asylum v. Strain (2 Bradf., 34); Christ's Hospital v. Budgin (2 Vernon, 683); Dummer v. Pitcher (5 Simons, 35); Scotty. Simes(10 Bosw., 314) ; Richardson v. Daggett (4 Vermont, 336); Briggs v. Beach (18 Vermont, 115); Schoonmaker v. Ebmendorf (10 Johns., 49); Graig v. Craig (3 Barb. Oh., 78); Jaques v. /SAw# (20 Barb., 269); Coates v. Stevens (1 Yo. & Coll. Exqr. B., 66); King-don v. Bridges (2 Vern., 67); Glaister v. Hewer (8 Vesey, 199); Day v. Pargra/oe (cited in 21. & S., 396); Gaters v. Madelcy (6 Mees. & W., 423); Scarpellini v. Ateheson (7 Adol. & EL, 1ST. 8., 864); Ak<sA, v. Was/t (2 Mad C. 0., 133); Cheekly v. Cheekly (2 Shower, 247); Howard v. 6%es (3 Weis. H. & Gr., 136); ASm, v. EW/cms (3 Allen, Mass.); Gibson v. YoaW (1 Bawle, Penn.); 1. Bolle Ab., 342; Bar. & F. D., id.,- 349; Demlyn v. Brown (Moore, 889); Coppin v.-(2 P. Wms., 496) ; Datton v. Midland R. R. Co. (20 Eng. L. & E., 273); Richards v. Richards (2 B. & Aid., 447); Beeves’ Dom. Bel., 132; Hoy v. Rogers (4 Monroe, Ky.); Mann v. Mann (14 Johns., 11); Charter v. Charter (41 Barb., 525); HimA of Hew Haven v. Perkins (29 17. Y., 568); Brown v Penfield (36 17. Y., 475).</p>

The act of May 7, 1869 (Laws 1869, ch. 700, p. 1Q58), directs that Minth avenue and Fifteenth street, in the city of Brooklyn, be widened and opened, under the supervision of the Brooklyn park commissioners.

<p>When a genuine check, drawn by one of its customers upon a bank, is presented by the drawee to that bank for deposit, it is substantially a demand of payment by the holder of the check. If the bank accepts the check and pays it, either by delivering the currency, or giving the party credit for it as a deposit, the transaction is closed between the bank and such party. And where the amount of a check, so presented, was credited to the holder upon his deposit ticket by the officers of the bank.—Held, the bank became liable for the amount of the check, although on the same day, and before the close of banking hours, but after it had paid other checks of the drawers presented later, it returned the check to the depositor as not good, and although the account of the drawer was overdrawn at the time of the deposit.</p> <p>In the case of a deposit of a check drawn upon itself, the hank becomes at once the debtor of the depositor, and the title to the deposit passes to the bank.</p>

<p>The lines of two telegraph companies terminated at S., the one leading from O. to S., and the other from S. to B. Messages passing over the line of the former company for transmission beyond S. to R., were customarily received by the letter company. The plaintiff at O. sent a message to S., paying for the whole distance.-—Held, that no partnership or mutual agency could be inferred from such facts. Each of the companies, in the absence of evidence of a special agreement or arrangement, either with the sender of the message, or between each other, will be liable for his own acts, but not for the acts and defaults of the other.</p> <p>The rule of damages, recoverable for the non-delivery of, or mistake in delivering telegraphic messages is the natural and necessary consequence of the breach of contract as contemplated by the parties, interpreting the contract in the light of the circumstances under which, and the knowledge by the parties of the purposes for which, it was made, and when a special purpose is intended by one party, but is not known to the other and is not indicated by the message itself, such special purpose will not be taken into account in the assessment of damages for the breach of contract to send. The damages in such a case will be limited to those resulting from the ordinary and obvious purpose of the contract.</p> <p>An error in transcribing the direction, and a consequent misdelivery, is prima facie evidence of neglect and want of care in the operator, and casts the burden of proof upon the company of explaining the error and showing that it occurred without fault.</p> <p>A message was delivered to the operator at O., by the plaintiff, to be telegraphed to the plaintiff’s agent at R, requesting such agent to telegraph back to the plaintiff the condition of certain petroleum oil wells at R., belonging to the plaintiff, and the operator was informed by the plaintiff, that unless an answer was received promptly he should sell the well at a certain sum, which had, to the knowledge of the operator, been offered him. The ordinary charge was paid for transmitting the message the whole distance, and it was transmitted to S., and there received by the defendant and by them transmitted over their line to B. By a wrong direction it did not reach the plaintiff’s agent for some days afterward. The defendant’s agent had no knowledge of the special purpose of the message. The plaintiff, receiving no response, sold at the offer. It afterward appeared that the well was worth, and could have been sold at a higher price.—Held, that the defendant was not liable for this difference, nor for any damages arising from an under sale by the plaintiff.</p>

This action was brought to recover damages alleged to have been sustained by the plaintiffs by the fraud of the defendants, on the sale of a ship to them. The complaint averred, that the plaintiffs were induced to' make such purchase by the false and fraudulent representations of the defendants that the vessel was sound and in good order; whereas, at the time, the ship was unsound and badly worm-eaten, as the defendants then well knew. The answer fully denied these averments.

Morse, Esq., referee. This action is upon a promissory note for $5,000, dated October 22d, 1866, payable three months from date, made by the defendant Noxon, and indorsed by the defendants Ken nedy and Colborn, the indorsement of the. latter being “D. K. Colborn, Agent.” The following facts were found by the referee : Noxon and Colborn, for a number of years before the date of this note, had transactions together, mainly in borrowing money from banks and others, among them…

Cogswell, referee. The action is brought to foreclose a mechanic’s lien on premises in Brooklyn. November 10th, 1867, Thomas S. Goodwin made a contract with Edward Pick to build a house on the premises for him. At that time Charles C. Betts was the legal owner of the land. Pick did work and furnished materials to the amount of $800, and then assigned the contract and the moneys due him thereunder to the plaintiff. The assignment was made January 8th, 1868.

By the return it appeared that a petition was presented to the county judge of Ontario county, purporting to be signed by a majority of the tax-payers of the town of Phelps, whose names appear upon the last preceding tax list or assessment roll as owning or representing a majority of the taxable property in the town, praying for the issue of its bonds to the amount of $125,000 in aid of the Sodus Point and Southern railroad, pursuant to chapter 907 of the act of 1869,…

13, rendered by direction of the court. The action was brought upon a judgment recovered, December 8th, 1846, against the defendant, for $3,013.11, by Charles Dimmock, William A. Spark, and Francis B. Dean, Jr., in the Superior Court of the city of New York, upon which, it was admitted, the sum of $1,000 was paid November 13th, 1847. It was commenced August 9th, 1866. The plaintiff claimed title under an assignment executed by Dean, as survivor of Dimmock and Spark.

„ Action for breach of covenant of seizin and quiet enjoyment in a deed of two lots on Seventh avenue and Fifty-fifth street, 2sTew York, “ with the corner house, and the house on the adjoining lot.” The deed was made January 11, 1866, the premises then being in the occupancy of tenants under the defendant. Up to May 1st, 1865, the premises had been under lease for a term of years, and the buildings on the lots had been erected by the tenants.

<p>An agreement for sharing in the profits of a "business is sufficient to constitute a partnership, as to third persons. It is not necessary that the agreement he to share in the losses also.</p>

Hadley, Esq., referee. The action was brought to set aside a certain conveyance -of real estate, by Alvin H. Parks to the defendants, Susan Parks, Ellen Parks, and others, his wife and children, and have the premises declared subject to the debts of the grantor, and that a sale or mortgage he had, and the proceeds applied to the payment of such debts. The deed was executed in 1854, and was without pecuniary consideration, though the consideration expressed was $500.

entered upon a verdict in favor of the plaintiff. The plaintiff sued the defendant for services as a physician; the complaint being for medical and surgical services, etc., generally. The defendant answered by a general denial. The plaintiff’s attorney served upon the defendant’s attorney a bill of particulars, the first item of which was as follows: To professional services from December 23d, 1867, to February 19th, 1868, per agreement, $500.

<p>Appeal from an order of the General Term of the Supreme Court in the fourth department, affirming a judgment in favor of the defendant, rendered on a trial by the court, without a jury-</p> <p>This is an action in the nature of a quo wcvrrcmto, commenced and prosecuted pursuant to sections 428 to 448 of the Code, to oust the defendant from the office of county judge of Hiagara county, and to install the relator into the office.</p> <p>The defendant was appointed, by the governor, county judge of that county, on Hovember 17, 1868, to fill a vacancy occasioned by the resignation of Judge Lamoht, who was elected in 1865, and whose term would expire December 31, 1869.</p> <p>The defendant was duly elected to the office at the general election in November, 1869, took the oath of office, and, on January 1st following, entered upon and yet continues in the discharge of the duties thereof. No question is made as to the regularity of the election.</p> <p>The defendant became seventy years of age on February 9, 1870.</p> <p>At the general election in November, 1870, the relator received 2,840 votes for that office, being all the votes given therefor but one ; the average number of votes given in the county, for other officers voted for, being 9,122.</p>

The plaintiffs and the defendant were stock brokers in the city of ETew York. Upon the 18th day of February, 1867, they entered into an agreement with each other, and executed as evidence thereof the following instruments: ¡New Yobk, 18th Feb., 1867. (1,000 shares.) We have purchased of C. G-.

Addison Gardiner, referee, in favor of the plaintiff. The defendant’s railroad passing through the town of Pitts-field, in the county of Monroe, crosses a public highway. At the point of crossing, the railroad is raised upon an embankment about ten feet above the natural level of the surrounding ground, over which embankment the highway is carried.