Volume 46 — Barbour's New York Supreme Court Reports

THIS is an appeal from a judgment entered upon the decision of a justice of this court, before whom the action was tried without a jury at the Albany circuit, April, 1857. The action was brought to recover rent due upon a lease, and judgment was entered in favor of the plaintiff for $4Í0Í.8Ó damages and costs.

HpHIS is an action brought by the plaintiff against the 1 defendant for an alleged assault and battery, and false imprisonment, The action was tried on the 27th day of January, 1864, before Justice Leonard, and a jury, at the circuit.

APPEAL by the defendant from an order denying a motion for a new trial, made upon the minutes of the judge. The trial was had before Hon. Justice Leonard and a jury, in June, 1863.

APPEAL from an order made at a special term overruling a demurrer to the complaint, The facts appear in the opinion of the cotirt,

The action was brought by the plaintiff as receiver of Henry Bangs, appointed in proceeditigs supplementary ■ to execution,. on a judgment recovered against him by Terry brothers in 1862, 1st. To recover from the defendant, Ezra L. Bushnell, various sums of money alleged to have been usuriously exacted by him from the defendant Bangs. 2d. To compel Bushnell to account for certain notes and bills receivable, alleged to have been placed in his hands as collateral security for…

<p>APPLICATION for a mandamus directing the city judge of New York to allow a writ of habeas corpus in hehalf ' of Michael Byan,</p>

MOTION to set aside the report of a referee appointed on the reference of a claim made by the plaintiff, for professional services as a physician, against the estate of Catharine McGuire, deceased, the defendant's testatrix.

WRIT of error to the Broome county court of sessions. Emanuel Houser was indicted at the June term of the Broome court of sessions in 1865, for unlawfully and feloniously marrying one Ann Decker, on the 2d day of September, 1864, at the town of Dryden, in the county of Tompkins, knowing she then was the ■ wife of one Henry Decker, and that she had previously been lawfully married to the latter.

THIS is an appeal from a judgment entered upon the report of a referee. James Woods, by his will, provided as follows : “ I would provide for the support of Sally, the wife of Sheldon Main, in a comfortable manner during her life, but in such a way as that no part of any property I may have, or the avails thereof, may ever reach Sheldon Main, either for his support or for any other purpose relating to him.

APPEAL, by the plaintiff in the third and fourth of the above actions, from an order made at a special term denying a motion made by him to discharge the attachments issued in the first and second actions, respectively, on the ground that they were irregularly issued.

THE plaintiff is a banking corporation at Chicago, Illinois; the defendants are commission merchants in Hew York.

■ The action was brought on a note for $460.35, made by the defendant, and dated August 1, 1853, payable two years from date, to the order of G-eorge Clark. The defense was an alleged indebtedness of George Clark, the payee, to 'the defendant, for services rendered in the years 1845 and 1846, to which the plaintiff interposed a reply of the statute of limitations.

THE plaintiff, under an assignment from Acker, sued the defendant to recover moneys due from him to Acker.

<p>THIS action was commenced in a justice’s court, tó recover compensation for the use of a carriage and horses, and for damages done thereto. The plaintiff, on Sunday, June 23, 1864, at Brooklyn, let a pair of horses and carnage to the defendant, who stated, at the time, that he wanted to take his wife and family to Coney Island. The defendant left the horses standing in the street tmhitched, although cautioned not to do so; They ran away, breaking 'the carriage, &c. The plaintiff was nonsuited, by the jdstice. On appeal to the county court of Kings county, the judgment of the justice was affirmed; and the plaintiff appealed to to this court from the judgment of the county coüft.</p>

THIS was an action brought by the plaintiff, as trustee, against his co-trustees, to compel them to account for and pay to the company its money, which he alleges they had lost and wasted and converted to their own use, in pursuance of a combination among themselves and with others to defraud the company of all its income.

THE executors of Patrick D. Lynch, deceased, brought this suit to obtain an adjudication of several questions arising under the will of the deceased. The testator died on the 19th of February, 1864, possessed of a large estate, leaving a will dated the 3d of that month, and two codicils thereto, one dated the 6th ahd the other the 15th of the same month, all of which were duly admitted to probate.

THIS is an appeal from a judgment entered upon the report of a referee. John P. Bycleshimer died on the 10th day of June, 1861, intestate, seised of real and personal estate, and leaving him surviving John L. D. Eycleshimer, his son and heir at law.

<p>Where mill property has been used and occupied by a party, and those under whom he claims, and to the same extent, under a title and claim of right as</p> <p>■ against all the world—individuals and the public—for a period of forty years, he can not be disturbed, or subjected to restraint in the exercise of any of the rights pertaining to such property, except upon the ground that it is'a public nuisance.</p> <p>If it is such a nuisance, no period of use and occupany, however extended and uninterrupted, and under whatever claim of right, will protect it from abatement by the public authorities, or the preventive remedy by injunction to restrain its perpetuation by additions and repairs.</p> <p>A'plaintiff, asking for an injunction to restrain the tiwner of a building situated upon the bank of a river from erecting a foundation wall for the support of such building, on the ground that such building and wall will project into the channel of the river and interrupt the 'natural flow of the water and thus constitute a public nuisance, must affirmatively establish the fact that a nuisance will be created by the completion of the wall, with clearness and reasonable certainty, or he will not be entitled to that species of relief.</p> <p>It is not enough to make out a doubtful or possible case of danger; but the danger apprehended must appear to be imminent, and, in the natural course of events, clearly impending, and the mischief in its nature and character irreparable*</p> <p>If it appears, in such a dase, with reasonable clearness and certainty, that the wall, and the building of which it is to form a part,, occupies or is designed to occupy any portion of the bed of the river and will naturally and necessarily obstruct the natural flow of the water in the channel, and.in this way contribute in any considerable and appreciable degree to the overflow of the river banks, at that point, in periods of high water, it is a public nuisance, and the right to an injunction, at the suit of the city corporation, clear and unquestionable.</p> <p>And this although the wall about to be erected is not designed to be constructed as formerly, at right angles with the stream, so as to form a direct obstructo fjhe flow of -water on the upper side, but diagonally, so that the current coming against it would be deflected instead of obstructed; thus interrupting the flow of the water to the least extent possible without the removal of the entire building and its foundations.</p> <p>A river flowing through a populous city, subject to sudden and extraordinary additions to its average volume, should be allowed to pass free from obstruction; and its natural channel should be guarded, with extraordinary vigilance, against encroachments; and the law should freely lend all its powers to prevent or remove every real encroachment, when made or attempted. Per Johnson, J*</p>

ACTION upon a promissory note made by John M. Wins-low and indorsed by the defendant' Gregory, of which the following is a copy: (C $450.00. Bochesfer, December 7, 1864, Three months after date, I promise to pay to the order of James H. Gregory, Esq. four hundred and fifty dollars, át the Albany City Bank, value received.

The action was brought against the defendant as a common carrier, to recover the value of goods which it had undertaken to transport from Buffalo upon its railroad, and deliver at Dunkirk, and which goods, as the plaintiff claimed, were, by the negligence and carelessness of the defendant, destroyed by fire, while in the defendant’s care and custody, at Dunkirk.

THIS is an action in equity, brought by the plaintiff for the purpose of removing what she claims to be a cloud on her alleged title to real estate,- at Lima, in the county of Livingston. The plaintiff claims title in fee to the premises in question, and possession under that title.

ACTION upon an alleged indorsement by the defendant of a note made by William Pepper, for $300, dated March 14, 1857, payable to the order of Abram G-utohess, sixty days from date, and indorsed by Grutchess, the name of the defendant appearing upon the note as a subsequent indorser.

JOHN OVERROCKER was the owner of a load of barley, raised by himself, which was not new barley. He sent the defendant to Port Byron to sell the grain, telling him he must not sell it for seed barley. The defendant took the barley to Port Byron, and sold it to the plaintiff for seed barley. It was worthless for that purpose.

THIS action was commenced for the purpose of setting aside a transfer by George Ayrault to Aaron Van Nostrand, of a legacy given him under the last will of Allen Ayrault, deceased. The plaintiffs, Bigelow and Hoagland, alleged in their complaint that they ohtaine'd a judgment against George Ayrault, in this court, August 13, 1858, for $410.88, -in Allegany county.

ÁGTIOlSr to recover the value of goods taken and converted by the defendants. The plaintiffs claimed the goods by virtue of an assignment, dated the 14th day of June, 1861, made to them by Anson P. Campbell and Dayton Church, for the benefit of their creditors. Some creditors were preferred over others in the assignment.

ACTION of' ejectment, to recover dower in a farm contain^ ing about two hundred acres of land, situated in the county of Delaware. The action was tried at the Delaware circuit, in September, 1863. The plaintiff claimed to recover the dower as widow of George H. Sands, deceased,, to whom she was married on the 24th day of November, 1848,' and. who died on the 24th day of February, 1849. The farm was conveyed to George H, Sands on the 12th day of! June, 1848.

THIS action was brought upon a promissory note made by the defendants in the words and figures following, to wit: “$300. For value received, we jointly and severally promise to pay Duncan Ballantine or bearer, three hundred dollars, three days from date. Dated Andes, May 16, 1861.

THIS action was brought by the plaintiff, as holder, against the defendant, as indorser of a promissory note, of which the following is a copy: “$1000. Ninety days after date I, for value received, promise to pay to the order of Adna Talcott, one thousand dollars, at the Bank of Norwich. East Guilford, April 17, 1857. James Hughston.

<p>Motion by the defendant for a new trial.</p>

<p>' H^OTION by the plaintiffs, for a new trial on exceptions.</p>

<p>Upon a sale of barley, by M. to D., for cash on delivery at the storehouse of G., it was agreed the money should be left by D. with G., to pay the price. The purchaser did not attend in person to the receiving and measuring of the grain, but had a clerk or agent there for that purpose. Held that a demand of the money, of such clerk or agent, was sufficient; and that it was not necessary for the vendor to go in search of the purchaser, hiinself, to make the demahd of him.</p> <p>Held, also, that the clear intent of the contract was that the money should be at the place of delivery; and if it was not there, the purchaser was in default, unless the vendor waived that condition. That whether he waived it or not, depended on his inteni at the timé of the delivery; and that it was a question of fact for the jury.</p> <p>Held, further, that the fact that thé grain was, as the same was delivered from day to day, at the storehouse of G., put into bins in which other barley of D. was being put, at the same time, was not such an admixture of the grain, as to make the owners thereof tenants in common; no such tenancy being contemplated, and the adfilixttiré being for tio such purpose.</p> <p>And that M., notwithstanding the admixture of the barley delivered by him, with barley delivered by others, did not lose his ownership, but remained owner of the quantity delivered, as though it had not been so mixed. That he had the right, as against D. and consequently as against G., his bailee, to take that amount from the common bulk; and that hence G., in denying that right, and refusing to permit him to have his own, was guilty of converting it, so as to entitle M. to his action.</p> <p>The mere fact of an admixture of property does not necessarily produce a tenancy in common. Bach owner may own, in severalty, his share of the goods so mingled; especially when the property is all of one kind and value.</p> <p>The circumstance which gives rise to the rule that an admixture produces a tenancy in common, is the loss of identity of the property mixed—making it impossible for each owner to reclaim bis separate property. But when the property so mixed is of the same kind, and of equal value, and the proportionate shares are known, the loss of identity does not prevent each owner from claiming his separate share; and each may take and sell, or destroy his share, without being liable to the owner of the other part.</p> <p>In an action to recover damages for the unlawful conversion of property, the plaintiff is entitled to recover the highest value thereof at any time between the conversion and the day of trial.</p>

<p>-y-OTIOH by the plaintiff for a new trial, upon exceptions.</p>

The action was brought by the plaintiff, against one Joseph D. Comstock, as maker, and A. Kirkpatrick, as indorser, upon two promissory notes. . The defendant Kirkpatrick alone answered, and judgment having been perfected against Comstock, by default, the action was severed, and has since proceeded against Kirkpatrick, as sole defendant. The defenses relied upon by Kirkpatrick, to the enforcement of the notes, as set forth in his amended answer, were 1.

THEl plaintiff, in her complaint in this action, alleged that oü the 19th day of September, 1862, a judgment was entered in a cause in which the said plaintiff, Catharine Knickerbacker, and the said Frances M. A. Knickerbacker, and Alida Y. Knickerbacker, defendants herein, by Jeremiah Romeyn, their guardian ad litem, were plaintiffs) and John Knickerbacker, defendant, a copy of which was annexed, and a judgment roll in said cause was on the same day filed in the clerk’s…

THIS was an action of trespass, brought to recover damages for a wrongful entry, &c. by the defendant upon the plaintiff’s lands in Summit, Schoharie county. It was tried at the Schoharie circuit, in May, 1862, before Justice Pecrham and a jury.

The action was ejectment, commenced March 8, 1862, to recover the possession of about five acres of land, called the mine lot, in the town of Saugerties, Ulster county. John L. Mower, deceased, was the common source of title, the plaintiff claiming by title derived from his heirs at law, and the defendant by title derived from the said John L. Mower, deceased, in his lifetime.

The action was brought upon a note for $4000, made by the defendants as collateral security, to secure a debt due from the Bank of Sing Sing to the plaintiff. On the 7th of November, I860, the Bank of Sing Sing owed the plaintiff $620.46 for moneys collected for it, and held notes and checks for collection, belonging to the plaintiff, for about $787.52. It did not decisively appear in evidence when the latter were jiayable.

<p>The act of congress, passed August 30, 1852, entitled “An act to amend an act entitled ‘ An act to provide for the better security of the lives of passengers on board of vessels propelled in whole or in part by steam,’ and for other purposes,” was intended to provide additional guards and securities for passengers who niight embark upon steam vessels, without exempting the owners from the liabilities imposed by the legal relationship which existed between them and passengers.</p> <p>The regulations contained in the act did not supersede, and were not intended to supersede, the redress which the common law extended tq, aggrieved par-, ties, for injuries received.</p> <p>Accordingly, a certificate mp.de by an officer q£ the government showing that the boilers of a steamboat have been properly inspected as directed by the, act of congress, and showing a compliance with the provisions of the act by the owners, will not exonerate such owners from liability, in an action brought by a passenger, to recover damages for a personal injury occasioned by the explosion of a boiler-.</p> <p>In such an action the plaintiff is entitled to -recover damages for- bis bodily pain and suffering.</p>

THIS is an appeal from a judgment for the foreclosure and sale of mortgaged premises situated in the city of Albany. The defense was, that after the commencement of the action, the amount due was tendered to the plaintiff and refused.

by the appellant as the last will and testament of Peter Ban, deceased. The will was' presented for probate on the 18th day of January, 1864, and the decision Of the surrogate, rejecting the will, was filed on the 15th day of August, 1864. The facts, so far as material, appear in the opinion.

The action was to recover the sum of $150 a subscription paper, signed hy the defendant and several others, which was as follows: “We, the undersigned, agree to pay to the trustees named below, the sum set opposite our ñames, for the purpose of raising a fund sufficiently large to entitle us to an act of incorporation from the regents, The persons named as trustees are to purchase grounds in Mechanicville, and erect thereon a suitable building and fixtures for an academy,…

The action was brought to recover the possession of personal property, consisting of a steam engine, boilers, gearing, shafting, planing machine, saw benches, turning lathe, shingle machine, &c. alleged to have been wrongfully severed from the freehold and removed from certain buildings in the town of Coeymans, called the Kimméy Mills, by the defendants, on the 4th day of December, 1862. The cause was referred to A. S. Johnson, as sole referee.

THIS was a mandamus issued on the relation of the relator, James Vickerman, to compel the defendant to award to him the contract for the repair of a portion of the Brie canal, known as section Bo. 5. The cause-was tried before Judge Peokham, without a jury, and a judgment entered awarding a peremptory mandamus.

THIS was an action brought to recover damages arising from an injury received by the plaintiff from an explosion of gas on the 6th of December, 1861. The plaintiff was, at the time of the injury, about seven years old, and the house in which she was, and in which the explosion took place, was then occupied by her father. The gas was put in through the cellar wall of the house, by the defendant, at the instance of the plaintiff’s father, in September, 1860.

THIS action was tried at the Otsego circuit, in June, 1865, when, by direction of the court, the jury rendered a verdict in favor of the plaintiffs, for $1669.70, The defendant made a case, containing the exceptions he took on the trial, which exceptions the judge directed to be heard at the general term in the first instance, and suspended judgment in the meantime.

THIS was an action to recover damages for the conversion of five hundred wine plants. The plaintiff claimed to have. derived title to the plants under a personal mortgage, dated the 26th day of September, 1863, which Was given to him by Matthew Staring. The plants were set in the ground on a farm in Chemung county, by Staring, in June, 1863.

<p>APPEAL from an order of a county court denying a motion for a new trial.</p>

THIS action was brought to recover damages for alleged criminal conversation between the defendant and the plaintiff’s wife, in 1864. It was tried at the Otsego circuit in June, 1865. The plaintiff first offered as a witness, generally in the cause, his wife, Adeline Carpenter, to whom the defendant objected. The judge sustained the objection, and the plaintiff’s counsel excepted.

THIS is an appeal from a, judgment in an action tried before the court, at the circuit) without a jury. It was admitted on the trial that in May, 1862, the defendant, Jenkins, assuming to act as commissioner of the town of Duanesburgh, subscribed for $30,000 of the stock of the Albany and Susquehanna Eailroad Company, and delivered that amount of the bonds of said town to said company in payment; which stock said Jenkins, as such commissioner, still holds.

ACTION to recover penalties of the defendant for obstructing a highway in the town of Big Flatts, in the county of Chemung. The action was commenced before a justice of the peace of Chemung county, where it was dismissed, by reason of the defendant denying the existence of the alleged highway and setting up as a defense that he was the owner in fee of the land where it was alleged the highway was.

THIS was an action brought to recover for the damage done by the defendants’ cattle, horses and sheep to the plaintiff’s orchard and crops during a series of years, on a piece of land owned and possessed by the plaintiff in the town of Tfuxton, in Cortland county.

APPEAL, by Messenger and Hart, from, an order made at a special term, imposiiig a fine upon the appellants, for their misconduct in refusing to pay a tax of $118.69, mentioned in the petition in this matter, presented to the special term, and upon which said order was founded. In that petition it was alleged that Jabez H. Metcalf, the petitioner, H. If.

CBETIOEABI to Alexander Arnold, Nathaniel B. Chase and Simeon Wagner, referees appointed by the county judge of Steuben county, upon an appeal by the defendants to said county judge, from the determination of the relator, as commissioner of highways of the town of Cohocton, made on the 8th day of August, 1864, in laying out a highway in said town, under section 123 of title 1 of chapter 16 of part 1st of the Bevised Statutes, (2 B. 8. 5th.ed. 403,) as amended in 1847.

PPBAL from a judgment rendered at the circuit, upon a verdict. The action was brought to recover damages for an assault and battery. The defendant and Dr. Hoffman, the brother of the plaintiff and with whom she resided, were the owners of adjoining lots. A cherry tree stood upon the land of Dr. Hoffman, with limbs overhanging the land of the defendant, The plaintiff undertook to' pick the cherries from the limbs of the tree which overhung the defendant’s land.

The action was brought to try the defendant’s title to the offices of secretary and treasurer of the Rochester and Genesee Valley Railroad… Held: used and exercised the said office of secretary and treasurer, and still did hold, use and exercise the same, at the city of Rochester, and had without any legal warrant or authority, claimed and received and enjoyed all the rights, franchises, fees and emoluments belonging or appertaining to the said office ¡ which rights' and…

MOTION by the defendants for a new trial on exceptions, ordered at the circuit to be heard at the general term in the first instance.

<p>The provisions of the charter of the city of Rochester, (Laios of 1861, eh. 143,) giving to the common council power to make, continue, modify and repeal such ordinances, by-laws, &c. as it may deem desirable, to prevent the lumbering of streets, aqueducts, wharves, basins, slips, &c. in any manner whatever; to preserve the Genesee river, and all canals, slips and basins in the city; to prevent and punish the casting or depositing therein any logs or other floating matter, &c.; to prevent and remove all obstructions and accumulations of rubbish, &c. therein, and to punish the authors thereof, &c.; and to impose such penalties, not exceeding $100, for any offense against any such ordinance; and declaring that “nothing in this section contained shall be construed to authorize the common council, or any of its officers, to interfere with any of the laws of this state, &c. or with the acts and regulations of the canal board, in relation to the Brie canal, or any other canal,” &c. were obviously designed by the legislature to confer upon the common council1 ■the power to make and enforce certain rules, regulations and ordinances which they should deem necessary and proper to preserve the health of the city, and to maintain public peace and good order therein.</p> <p>Accordingly held, that an ordinance declaring it unlawful for the owner of any saw logs, timber or lumber, or for their agents, to keep or cause to be kept (with the exception specified) any saw logs, timber or lumber of any kind, in the Erie canal feeder, or any private or public basin adjoining the same, in the twelfth ward of the city, and giving a penalty of $100 against any one who shall be guilty of violating the above provisions, was plainly within the powers of the common council, thus conferred by the charter.</p> <p>Held, also, that the concluding clause of the section of the charter, above recited, was designed sijnply to prevent a conflict of the city regulations and ordinances with the canal laws, or the acts and regulations of the canal board.</p> <p>Held, further, that the police justice of tlje city of Rochester, under the sixty-fifth section of the city charter, which makes it his duty to attend to all complaints of a criminal nature which may come before him, has jurisdiction to hold cognizance of a complaint for a violation of the ordinance above mentioned. ’</p>

MOTION by the plaintiff to set aside a nonsuit and for a new trial, in an a.ction to recover the possession of real estate.

<p>In an action for an assault and battery, the plaintiff called as a witness the physician and surgeon who attended her, who was asked this question: “ What was the difficulty, judging from her statement, and what you saw t” The question was objected to, on the ground that the witness could not state what was said to him. The court overruled the objection. Held pot erroneous.</p> <p>The witness then testified, in answer to the question, as follows: “ She called my attention to a pain in her arm, which, at the time, from its appearance and her statement, was severe, and she believed to be violent neuralgic pains. I can not give any information us to how it was produced. I can only say how it might have been produced,” &c. The defendant’s counsel objected to the evidence as to how it might have been produced. The court said the question to be put was, what the witness discovered to be, the matter with the plaintiff's arm, and to what he imputed it, as a matter of medical opinion, and allowed the question to he put in that form, with the qualification “ taking into consideration what she said to you, and .what you saw.” Held not erroneous.</p> <p>The following question was then put to the witness: “ How could the wound with an axe produce that injury 1” Which he answered. Question; “Might that end in paralysis of the arm, to a certain extent V’ The court allowed the question to be put, whether, taking her statement to be true, it would produce that result. Held that the objection to this evidence was not well taken.</p> <p>The witness was then asked this question: “ Assuming that the plaintiff did</p> <p>■ receive a blow on the point of her elbow, and by the same blow the skin wa,s discolored for some days, some three inches above, the blow being seyere at the time, so as to produce a temporary suspension of the power to stand— suppose that to be so, and that from, that time to this she has been unable to raise and control her arm, so- as to do any thing with it, what do you say produced that; might it have been produced by the blow 1” The court overruled an objection to this question, and allowed it to be put, with the qualification “if the jury believe the statement of facts.” Held that an exception to this ruling was hot well taken.</p> <p>And it was Held that the questions put to the witness related to the extent of the-injury the plaintiff had sustained, and the nature of that injury, and that his answers went no further. And that the answers, with the questions by which they were elicited, were all of a scientific and professional character.</p> <p>"Where the owner of a farm leased the same, with the dwelling house thereon, to another, reserving one chamber or bedroom in the house; Held that his right to occupy the room reserved gave him no other right to the yard within the curtilage of the dwelling house than that of a passage or way to, and from the "chamber so reserved; and did not justify him in passing with his horse and wagon through, the yard and removing a clothes line placed there, by .the- tenant.</p>

<p>G., being the holder of a promissory note for $4375.88, made by B. and P„ and payable to his order, indorsed and delivered the same to S. to secure the latter against loss or liability as accommodation indorser for G. on notes and drafts to the amount of about §7000, a part of which were held by the plaintiffs, respectively. Subsequently and before maturity, S. sold and transferred the note to L. P., a liona fide purchaser, at a discount of $200, and the proceeds were appropriated by S. to his own private use, and were not applied to the payment of obligations on which he was liable as indorser for G. L. P. made a formal transfer of the note to SI., but such transfer was not an absolute one, and SI. held the nominal title of said note merely for the accommodation and benefit of L. P. In an action brought by the plaintiffs, to have the note, in the hands of M., applied to the payment of the plaintiflis’ debts against G., according to the purpose for which it was put into S.’s hands; it was held that there was no principle upon which the plaintiffb could sustain the action.</p> <p>That it was entirely competent for S. to convert the B. and P. note into money, by selling and transferring it to L. P. And that after he had sold it and received the money therefor, neither L. P. nor any person to whom he might have transferred it, was responsible for the manner in which S. appropriated the proceeds of the sale.</p> <p>That whether the sale and transfer of the note to M, was absolute, or merely formal, was not material; that in either case the note was beyond the reach of the creditors of G.; provided the purchase by L. P. was in good faith. And that if it was made with any fraudulent or unlawful intent, it was incumbent upon the plaintiffs to prove it.</p> <p>Where an action is tried without any question being raised as to whether the facts proved are within the pleadings, it is too late, after the decision, to raise an objection that the evidence was not warranted by the pleadings; provided it was otherwise competent. .</p>

THIS is an appeal from a judgment entered on the report of a referee. The action was commenced under chapter 412 of the Laws of 1862.- The plaintiff served an affidavit and notice upon the defendants on the 24th of November, 1863, and made a motion foundéd thereon, in pursuance of said statute, for a reference, in January, 1864. The referee was appointed and heard the case, and judgment was rendered for the plaintiff.

THIS action was commenced by the plaintiff against William Scott, in his lifetime, since deceased, and Henry Y. Colt, to recover the amount of a promissory note, purporting to be made by Henry Chamberlain, Daniel H. Bissell, William Scott and Henry Y. Colt, to the plaintiff, for $1300, on the 7th day of May, 1852, payable in one year from date.

THIS is an action for the foreclosure of a mortgage. Minot Mitchell, being seised in fee of the lands mentioned in; the complaint, conveyed them to his son, Joseph S. Mitchell^ on the 4th of June, 1855, who at the same time executed to him the mortgage mentioned in the complaint, together with the bond accoinpanying the same, to secure the purchase money, $2000.

THIS action was brought to compel a specific performance of a parol contract for the sale of twenty-five acres of land in Milo, Tates county. The action was commenced in February, 1864, in the name of Moms Brown, jun. as plaintiff. The action was tried before the court at a circuit court held in Tates county on the 5th day of April, 1864.

CHON on a life insurance policy, tried at the Steuben circuit in April, 1866, The defendant, on the 17th of September, 1864, issued a policy to the plaintiff upon the life of Philip J. Welts, her husband, for the sum of #5000.

IS December, 1857, John Lent commenced an action against Eobert McArthur, in which the latter was liable to arrest, and was arrested. To secure his release from such arrest, the plaintiff and one McVean became his bail and executed the undertaking provided by law. Lent obtained judgment and issued an execution against the property of the defendant in that action, which was returned unsatisfied.

THIS action was brought hy the plaintiffs against the defendants, as administrators of Amasa Tuell, deceased, on a liability alleged to have 'been incurred hy their intestate by reason of his being a stockholder in a mining corporation created by and under the laws of the state of Pennsylvania, called the “Geneva Coal Company.” The cause was tried at the Tates circuit, in March, 1862,'before his honor Justice Welles, and a jury.

THIS was an action brought upon a contract or indenture, and was tried .before John B. Gfale, Esq. as referee. Upon the trial the plaintiff offered and read in evidence, a contract made by, and between Stephen Van Rensselaer, since deceased, and Lebheus Herrick, and bearing date the 5th day of June, a. d. 1794, the execution of Which contract was admitted, and which was in substance set forth in the complaint. The contract was set forth in the complaint, which alleged, 1.

<p>MOTION for a new trial upon the minutes of the court on a verdict for the defendants. The facts sufficiently appear in the opinion.</p>

HIS action Was tried at the circuit before Justice Welles, without a jury.

OK the 30th day of August, 1864, the town of Wolcott, in the county of Wa3rne, by its proper officers, and pursuant to chapter 8 of the Laws of 1864, called a special town meeting, to be held on the 7th day of September then next, to determine “ whether the sum of six hundred dollars shall he raised as a bounty to each individual and volunteer from the town,” * * * * “ to fill- the quota assigned to said town under the last call of the President of the United States for five…

H the first day of August, 1861, the firm of Harris, Thomas & Sons, of Sheldrake, Seneca county, were the owners of a contract, made March 29, 1861, between other parties, for the building of a lake boat, for the Steam Mill Company, of Sheldrake, by which contract $3212.50 were to be paid for the boat as follows : $500 June 1, 1861, which was paid; $712.50 in cash on the delivery of the boat, 15th August, but afterwards extended to the 16th of September, 1861 • and the…

EJECTMENT, 'brought by the plaintiffs as heirs of John M. Raynor, deceased, to recover the possession of sis acres of land.

The Goodhue creek, about twelve miles long, runs into the Oanisteo river from the north, through a narrow gorge in the mountain. At the base of the mountain the creek turns square to the right and runs across the low lands and into, the river. The plaintiff has, since 1822, owned a farm which lies south of the. gorge, and his house is located directly in front of the mouth of the gorge, and between it. and the river..

ACTION to recover the price of timber and lumber, sold and delivered by the plaintiff to the defendant.

<p>The neglect of a sheriff to return an execution put into his hands for coEection, is an omission of an official duty, within the statute requiring an action against a sheriff upon a liability incurred by the doing of any act in his official capacity, &e. or by the omission of an official duty, to be brought within three years.</p> <p>The cause of action for omitting to return an execution, accrues the moment the sixty days, within which it is to be returned, have expired. The duty is imposed by statute, and the mere omission to perform it creates the right of action.</p> <p>No attachment, or notice to the sheriff to return an execution in his hands, is necessary, to give the party his right of action.</p> <p>Where an execution, returnable within sixty days from the time of its receipt by the sheriff, was put into his hands on the 6th of July, 1859, and a levy then made; Held that the sheriff was in default for not returning the execution, and a cause of action accrued against him, therefor, on the 4th of August, 1859; and that an action for such omission of duty, not commenced until the 6th of October, 18.64, was barred by the statute of limitations.</p> <p>In such an action, under the statute, proof that within three years prior to the commencement of the suit, the defendant had suppressed the execution, and suffered the property levied on to go to waste, wiU not affect the rights of the parties.</p> <p>When the statute has once commenced running, it will continue to run untE the time limited expires. It will not stop, and commence to run anew, upon the happening of any particular omission of duty, of the same character, but differing in degree.</p>

ACTION for breaking and entering the close of the plaintiff. Defense, that the locus in quo was a public highway, and that the fences removed were an obstruction to the highway, and a public nuisance. The defendant McCullum, was the sole commissioner of highways of the town, (Pike,) and, as such, he caused the fence to be removed. The defendant Van Slyke removed the- fence by direction of MeCullum.

MOTION by the plaintiffs for a new trial, on exceptions first heard at the general term. The action was to recover damages for an alleged fraud practiced by the defendant upon the plaintiffs in the sale of certain leases or leasehold estate. The alleged fraud consisted in representations made by the defendant touching the rents reserved by the leases, and • thereafter to become due and payable.

APPEAL by the plaintiff from an order made at a special term overruling an exception to the report of a referee disallowing interest in taking the account. Also an appeal by the defendant Howard from that part of the order overruling the exception to the report disallowing commissions to the defendant.

AN alternative mandamus was issued, in this case, at the special term held in Niagara county in May, 1865. Held: by the bank, was about $14,000; that the surplus profits were about $34,000, or $35,000; that the hank had about $203,500 of United States stocks or bonds, and that since January, 1846, it had at no time held less than $120,000 of United States stocks ; that the bank then had about $65,000 of stocks, other than United States,…

A PPEAL from an order made at a special term awarding .□L a peremptory mandamus, upon the return to an alternanative mandamus, commanding the defendant to correct the assessment roll for personal property, by reducing the amount therein, from $165,980, to $112,000. The facts appearing ' are: The capital of the bank was $150,000. The value of its real estate was $7000. Its surplus earnings were $14,151.16.

ACTIOS to recover damages for an injury to property of the plaintiff adjoining South Third street, between First street and the East river, in the city of Williamsburgh, and also for an injury to premises forming the north half of the street, by the defendant Swift (acting under a contract with the city to grade and pave South Third street.) The injuries were caused by throwing earth upon the land in the street, at the river, and filling in the slip at the foot thereof.

The complaint alleged: 1st. That the defendants are, and were at the times thereinafter mentioned, a municipal corporation in the county of Kings, duly incorporated in pursuance of the laws and constitution of the state of New York. 2d. That on or about the 10th day of July, 1861, the 'plaintiff was riding along a public highway in said city, to wit, along Fleet street, near Fulton avenue in said city, in the night-time, in a wagon, the property of the plaintiffs, drawn by a…

THIS is a case made, for the purpose of obtaining a construction by this court, of a clause in the will of the late Peter O’Hara, who died at Brooklyn, in the year 1863, leaving a valuable estate, estimated to be worth two hundred thousand dollars, one half of which consisted of real estate and the other half of personal property.

AJUGDMENT in favor of tne defendant against the plaintiff, for costs,. was entered in a justice’s court in 1 Chemung county, on the 14th day of November, 1865. The plaintiff served notice of appeal from-such judgment, upon the justice, on the 4th day of December, 1865, and upon the respondent’s attorney, (the respondent being a non-resident of, and absent from, the county,) on the 5th day of December, 1865.

TTTE plaintiff, who was the owner of a hotel, rented it to •one Shutes for one. yeal* from April 1, 1861. Shutes obtained a license to sell liquors, which expired May 21,1862.

THE petition in this case shows that Waldron sued Benton in an action for the recovery of money only, under subdivision 1, section 129 of the Code. The complaint was for the value of two ■ promissory notes taken by the defendant from the wife of the plaintiff. It is alleged in the points of the attorney for Benton, that an order of arrest was procured by Waldron in that action, though there is no evidence in the return which warrants such assertion.

THIS was an action of trespass brought against the defendants for breaking down and removing a fence across a road or way, passing through the plaintiff’s farm, and traveling thereon. ■ The action was tried at the Broome circuit, in September, 1865, before Justice Mason and a jury, and a verdict was bad for the defendants. A motion was made for a new trial, on the judge’s minutes, and was denied.

RIT of error to the court of oyer and terminer of Jefferson county. The prisoner, James Patterson, was indicted jointly with John Maher, Charles Dyer and Robert Underwood, for the murder of Alexander Heal,' at Water-town, in Jefferson county, on the 6th day of December, 1864. Patterson, on being arraigned, pleaded not guilty, and demanded to he separately tried.

THIS is an appeal from a judgment directed by Justice Jambs, after a trial, without a jury. The plaintiffs were owners of the brig Eio Grande, employed in carrying freights on the. lakes. On the 24th Hovember, 1863, the brig sailed from Cleveland, Ohio, for Ogdensburgh, H. Y. with an inboard cargo on flour, wheat and a few bars of iron.

THIS action was brought to recover the value of two dwelling houses, and certain personal property contained in them, destroyed by a riot or mob on the 15th of September, 1865. The plaintiff gave evidence showing that she was not apprised of any threat, or attempt to injure or destroy her property by any riot or mob, until such destruction was commenced, and had considerably progressed.