Volume 46 — New York Reports

. Also, appeal from judgment entered bn decision of said General Term, denying motion for new trial and directing, judgment on verdict. Cause tried at Chemung circuit. The facts appearing upon the motion are sufficiently set forth in the opinion.

On the 23d August, 1864, at a special town meeting held in the town of Riverhead, the following resolution was adopted: “Resolved, That the supervisor and committee he empowered, to raise a sufficient number of substitutes or volunteers, to fill the quota of the town on the best terms they can, and each person wishing to procure a substitute for himself shall pay $125 for three, or sixty dollars for one year, and the town pay the balance.” Under this resolution a substitute…

<p>Appeal from judgment of the General Term of the first department, reversing an order of the Special Term, overruling demurrer to plaintiff’s reply and sustaining demurrer to the fourth and fifth counts of defendant’s answer.</p> <p>This action is in the nature of a creditor’s bill, on a judgment recovered by the plaintiff against the defendant, Cornelius Olcott, on the 15th of April, 1861. And the allegations in the complaint are, that since the judgment said defendant has paid, of his own moneys, for certain real estate, the conveyance of which was taken by fipd in the name of the defendant, Kate G. Olcott, the wife of the other defendant, in fraud of his creditors. The answer denies all these allegations of fraud, and sets up the defence: That since the •judgment, and before this action was commenced, the defendant, Cornelius Olcott, obtained a discharge in bankruptcy, under the act of congress of 3 867, and was thereby fully discharged from all his debts, the aforesaid judgment included.</p> <p>The plaintiff replied to the defence of the discharge in bankruptcy, alleging that said discharge was fraudulently obtained, and setting forth the frauds complained of.</p> <p>The defendant demurred to the reply, that it does not state facts sufficient to constitute a reply.</p> <p>that as the real estate was transferred to the wife in fraud of plaintiff’s assignor, a trust results to the creditor. (IE. S., Edmond’s ed., 677, §§ 51 and 52; Garfield v. Hatmaker, 15 N. Y., 478, 479; Wood v. Robinson, 22 N. Y., 564-66; McCartney v. Bostwick, 32 N. Y., 53, 60; Bankrupt Act, § 33.) That the bankrupt act simply affects remedy, and does not discharge debtor. (In re Sevy et al., 1 Bankrupt Regis., 66.) If plaintiff’s judgment was a lien, it is not removed by a discharge obtained after such lien attached. (Bates v. Tappan, 3 Bankrupt Regis., 159; Same Case, 99 Mass. R., 376; Bowman v. Harding, 4 Bankrupt Regis., 5 ; Same Case, 56 Maine, 559 ; Brewster v. Power, 10 Paige, 562,569; Payne, et al., v. Able, et al., 4 Bankrupt Regis., 67.) On trial of issue raised by demurrer to the reply, the plaintiff was at liberty to attack the answer for insufficiency. (Holliday v. Noble, 1 Barb. R., 153; White v. Joy, 13 N. Y. R., 83; People, etc., v. Booth, 32 N. Y. R., 397; Code, §§ 144 and 148.) That all liens, statutory, as well as others, are protected and preserved by the bankrupt act. (See act, §§ 1.4 and 20 In re Gregg, 3 B. R., 131; In re Scott, 3 B. R., 181; In re Wynne, 4 B. R., 5.) That a party having a lien may enforce, after discharge granted. (Jones v. Tellgett, 39 Geo., 64.)</p> <p>that if discharge in bankruptcy is not well pleaded, objection is waived by the reply. (Jenkins v. Stanley, 10 Mass., 226.) That discharge cannot be attacked when pleaded as a defence. (Chemung Canal Bank v. Judson, 8 N. Y., 254; judiciary act of September 24,1789; 1 Stat. at Large, 76, § 9; Wheeler v. Raymond, 8 Cowen, 311; Caryl v. Russell, 13 N. Y., 194, 198; Breerton v. Hull, 1 Denio, 75.) That discharge attacks the debt, and destroys all obligation for its payment. (Ogden v. Saunders, 12 Wheaton, 303; McMillan v. McNeil, 4 Wheaton, 209; Farmers’ and Mechanics’ Bank of Penn. v. Smith, 6 Wheaton, 131; Ruckman v. Cowell, 1 N. Y., 505; Clark v. Rowling, 3 N. Y., 216; Dresser v. Brooks, 3 Barb., 429 ; Fox v. Woodruff, 9 Barb., 498; Depuy v. Swart, 3 Wendell, 135; Baker v. Wheaton, 5 Mass., 509; Moore v. Veile 4 Wendell, 420; Dean v. Hewit, 5 Wendell, 257, 262; Martin v. Bush, 16 Johnson, 233, 252; Roosevelt v. Champlin, 17 Johns., 108; In the Matter of Daniel T. Wendell, 19 Johns., 153 ; Hubbell v. Cramp, 11 Paige, 310; In the Matter of Coates and Hillard, 12 How. Pr., 344, 350, in Court of Appeals, 1856; Tobias v. Rogers, 13 N. Y., 59.) This action does not lie until all the remedies at law are exhausted, including return of execution. (Mickles v. Brayton, 10 Paige, 138; Penniman v. Norton, 1 Barb. Ch., 246; Johnson v. Fitzhugh, 3 Barb. Ch., 360; Weed v. Pierce, 9 Cowen, 722, 728; Beck v. Burdett, 1 Paige, 305 ; Edmeston v. Lyde, 1 Paige, 637; McDermott v. Strong, 4 Johns. Ch., 687, 691; Corning v. White, 2 Paige, 567; Clarkson v. DePeyster, 3 Paige, 319; Utica Insurance Co. v. Power, 3 Paige, 365; Chautauqua County Bank v. White, 6 N. Y., 236-252; Storm v. Waddell, 2 Sandf. Ch., 494.)</p>

<p>A master is responsible eivüiter for the wrongful act of a servant, if such act was committed in the business of the master, and within the scope of the servant’s employment; and this, though in doing it, he departed from the instructions of the master.</p> <p>Therefore, where the employee of a railroad company (a conductor), under a mistake of facts, or of judgment, ejected a person from the car in which he was a passenger, which act was not justified by the passenger’s misconduct.—Held, that the company was liable. So, also, where there was justifiable cause for ejection, but excessive force was used (not wantonly or.maliciously). Hibbard v. N. Y. and H. B. B. to., 15 ELY., 467, explained.</p>

<p>Appeal from judgment of the late General Term of the first judicial district, affirming judgment entered upon decision of the court in favor of plaintiff.</p> <p>The action is brought for a divorce upon the ground of adultery. The answer admits the adultery, but sets up a decree "of divorce obtained by defendant in the State of Indiana. The facts appearing upon the trial are sufficiently stated in the opinion.</p> <p>that under the Constitution of the United States (section 1, article 4) the Indiana decree was valid and binding here, Mills v. Duryea (7 Cranch, 481); Constitution, art. 4, § 1; Kemp's Lessee v. Kenedy (5 Cranch, 173); Mayhew v. Thatcher (1 Whea., 129); Cheever v. Cheever (9 Wallace, 108); 9 Pet., 8 ; 10 Pet., 449; The Mary, 9 Cranch, 126; 3 Cranch, 300; Black v. Black, Bradf, That such former adjudication is a bar. (Neafie v. Neafie, 7 John. Ch., 1; Perine v. Dunn, 4 id., 140; 2 Comst., 113; 4 Johns. Ch., 199; Noyes v. Butler, 6 Barb., 113.)</p> <p>that the Indiana decree was void for want of jurisdiction, Laws of Indiana, fol. 200; Shannon v. Shannon (Am. Law Reg. 1863, 180); S. C., 10 Allen Mass. R., 249; Frost v. Brisbin (19 Wend., 11); Chaim v. Wilson (1 Bosw., 673); Borden v. Fitch (15 Johns., 151); Bradshaw v. Heath (13 Wend., 406); Jackson v. Jackson (1 Johns., 424); Vischer v. Vischer (12 Barb., 640); McGiffert v. McGiffert (31 Barb., 69) ; Kerr v. Kerr (41 N. Y., 272); Sturgis v. Fay (16 Ind., 429); Beard v. Beard (21 Ind., 321); Forrest v. Forrest (25 N. Y., 501).</p>

In April, 1867, plaintiff .was the owner of 150 acres of land situated about two miles east of Saratoga Springs, upon which were two mortgages for about $10,000 in the aggregate. Fifty acres of the farm were thought valuable for the manufacture of brick and peat.

(Beported below, 58 Barb., 174.) The resolution authorizing the work, was presented to the board of aldermen July 2d, 1863, and was referred to the committee on roads. August 25th, 1863, the committee on roads reported favorably. September 15th, 1863, the report and resolution were adopted, and directed to be sent to the board of councilmen for concurrence.

Appeal by the relator from a judgment of the late General Term of the eighth judicial district, affirming the assessment of the respondents as assessors of the town of Dunkirk. The relator is a body corporate, organized under and pursuant to chapter 265, of the Session Laws of 1864, as amended by chapter 34, of the Session Laws of 1866. The relator’s organization was completed in the month of December, 1865.

<p>Where the Constitution of the State directs, that certain officers shall be elected by the people, and authorizes the legislature, to fix the term of office, and the time and manner of election; after the length of term has been prescribed by legislative enactment, and the office filled, an act extending the term of the incumbent is unconstitutional.</p> <p>Under such constitutional provision, however, the power to direct the times and manner of the election, is a continuing power; and a subsequent statute, fixing a different time for election from the former, is repugnant to and repeals so much of it by implication.</p> <p>Held, therefore, that section one of chapter 217, Laws of 1866, extending the term of the incumbents, of the office of justice and clerk of the District Court of the eighth judicial district, in the city of New York, is in conflict with section 18 of article 6, of the constitution of 1846, and is void. That section 2 of said act, appointing a different time for the election of said officers, firom that prescribed by the act creating the offices (chapter 800, Laws of 1860), repealed so much of the latter act, and an election under it was invalid.</p> <p>The provision of section 9, article 2, title 6, chapter 5, part 1, of the Revised Statutes (1 R. S., 117), authorizing certain officers to hold over until a successor has duly qualified, applies only to an appointive, not an elective office.</p>

<p>An agent, acting within the scope of his authority, and disclosing his agency, will not be personally bound, unless upon clear and explicit evidence of such an intention. The rule is still stronger in the case of a public agent.</p> <p>An action cannot be maintained against an agent, although, having money of his principal’s in his hands, applicable to the payment of the debt of his principal, he refuses to pay it. He is responsible to his principal only for neglect of duty, and owes no legal duty to the creditor.</p> <p>The provision of section twenty-two of the act of 1864 (chap. 8, Laws of 1864), authorizing the raising of money for paying bounties, etc., being silent as to the means to be used to procure enlistments, it devolved, by necessary inference, upon the board of supervisors to adopt such means, and agencies to accomplish the purposes of the act, as they should deem appropriate. A resolution of such board appointing a recruiting agent, authorized him to appoint sub-agents; his contract for their services bound the county, and he is not personally liable. (Grover, J., dissenting as to power to bind county.)</p> <p>Even if the board had no authority to appoint the agent, yet, as its power was determined by the statute, known to both parties, the agent is not personally liable. The agent does not warrant the capacity of the principal to contract. '</p>

The first case is an appeal from judgment of the late General Term, of the first judicial district, reversing order of Special Term sustaining demurrer to complaint, and also judgment entered upon said order. The last is an appeal from judgment of General Term; New York Common Pleas, affirming judgment of Special Term of that court overruling demurrer to complaint.

The plaintiff recovered the amount of a promissory note for $5,000, made by “ The Florence Mills,” a manufacturing corporation, organized under the laws of, and doing business in, the State of Connecticut, dated December 2, 1867, and payable four months after dateat the defendant’s bank in New York, which had been discounted and was owned by the plaintiff at its maturity, under the following circumstances: The maker of the note kept an account with the defendant, and, on the…

Cause tried in Livingston county. On the twentieth day of January, 1857, a contract in writing was made and entered into, between L. Sweet & Co., of Dansville, 1ST. Y., of the first part, and B. L. Ball and F. L. Smith, of Eau Clare, Wis., of the second part, by which Sweet & Co., were to furnish the iron, and machinery for a steam circular saw-mill.

<p>A resolution of the common council, of the city of New York, directed that certain streets be paved with Nicolson pavement, and “ that crosswalks be laid or relaid at intersecting streets, under the directions of the Croton aqueduct department.”—ISM, that said resolution did not require a cross-walk at every street intersection; but that the department could omit such as it deemed unnecessary or improper.</p> <p>Under the provisions of section 88 of the charter of 1857, where an improvement is directed, embracing several kinds of work, which may be performed separately and by different parties, some of which are patented and others not, separate proposals should be invited for that part which is not patented, and for which there can be competition. An advertisement inviting proposals for the work united is defective, and the gssessment founded thereon irregular.</p> <p>It is not error to graduate the contract price for the work, according to the time employed in doing it.</p> <p>Neither is it error to include in the assessment, the whole amount of the commission to be paid the collector.</p> <p>An error of judgment upon the part of the commissioners apportioning the sum assessed, cannot be reviewed in proceedings instituted under chapter 338, of the Laws of 1858; that can only be resorted to for the purpose of reviewing frauds or irregularities.</p> <p>The provision of section 27, chapter 383, of the Laws of 1870, authorizing a deduction from an assessment of the sum erroneously included, is not retroactive, and does not affect proceedings had before the passage of the act.</p>

, under the provisions of chapter 907, Laws of 1869, brought up for review upon writ of certiorari. (Reported below 59 Barb., 446.) On the 31st day of August, 1870, George S. Batcheller and others, presented their petition to Hon. J. 0.

The complaint alleges, that the defendant was a citizen of Georgia, and a stockholder of the Horth-western Bank of Georgia, owning at the time of the issuing of the bills sued on, and at the present time, $25,000 of the stock, par value, being one-eighth part of the stock of the hank.

This is an action of ejectment, brought to recover the possession of certain real estate, situate upon Madison avenue in the city of New York, conveyed to the defendant by plaintiff, by deed dated October 21, 1862, which deed was executed in pursuance of orders of the Supreme Court, dated October 17th and 20th, 1862. The facts disclosed by the petition, upon which said orders were granted, and which have a bearing upon the questions determined, are set forth in the opinion.

Appeals from judgment of the late General Term of the first judicial district, affirming judgment entered upon the decision of the court at Special Term, giving construction to the will of William Bostwick, as hereinafter stated.

(Reported below, 2 Lansing, 52.) The plaintiff brought this action to foreclose a mortgage, given by Oscar F. Burns and wife, upon property of the wife, in August, 1861, to secure the payment of $2,000, with interest thereon, according to the condition of the bond of the husband of the same date.

(Reported1 below-'5-8 Barb., ’161, and 40 How., 139.) . The petitioners applied to the Special Term, for an order vacating the assessment above mentioned pursuant to the act, chapter 338, Laws of 1858. The alleged irregularities in the assessment proceeding are: 1. That the assessment has never been confirmed by the common council. 2.

<p>Appeal from judgment of the late General Term of the second judicial district, affirming a judgment entered in Westchester county upon the report of a referee, dismissing plaintiff’s complaint.</p> <p>On the 30th November, 1808, Peter Florence died seized in fee of the premises described in complaint, leaving a widow and six children, and also leaving a last will and testament, containing a general power in trust to his executors to sell the real and personal estate.</p> <p>Benjamin Florence, one of the sons of deceased, continued to reside on the premises, and had the use and control thereof.</p> <p>On the 13th July, 1811, the executors, in their own names, executed to said Benjamin a warranty deed of the premises; consideration expressed, $1,250; the widow joining in the deed. Mortgages were given for the purchase-money, which were subsequently foreclosed. The premises were sold and conveyed, by master’s deed, to Minot Mitchell, October 24, 1827, who on the 26th April, 1828, conveyed the same, by quitclaim deed, to said Benjamin Florence, who on the 1st November, 1859, conveyed it to his two daughters, Euphemia Hopkins and Mary Ann Lawton, and on the 18th September, 1866, the latter conveyed the undivided one-half to the ■ former.</p> <p>Benjamin Florence retained possession of the premises until his death, which occurred in September, 1865. None of the</p> <p>other heirs of the testator interfered in the management, or participated in the enjoyment of the same.</p> <p>After his death his two daughters had possession until the deed to Euphemia Hopkins, who has occupied it since that time, claiming to be the owner in fee.</p> <p>That the will gave the executors simply a naked power in trust. (Waldron v. McComb, 1 Hill, 111; Bloomer v. Walden, 3 Hill, 363, 372; Allen v. De Witt, 3 Comst., 276.) The deed given was void. (Nixon v. Hyserott, 5 Johns., 58; Clark v. Davenport, 1 Bos., 117.) Benjafnin Florence was disqualified from purchasing. (Judson v. Gibbon, 5 Wend., 229 ; Weaver v. Marvin, 14 Barb., 376; Van Horn v. Fonda, 5 John., Ch., 388 ; Briggs v. Davis, 20 N. Y., 15.) The title under the foreclosure was void. (Requa v. Holmes, 16 N. Y., 193; 26 N. Y., 338.) The deed from Mitchell inured to benefit of estate. ( Van Horn v. Fonda, 5 Johns., Ch., 388; Torry v. Bank of Orleans, 9 Paige, 649 ; Iddings v. Breen, 4 Sandf. Ch., 223.) A party not required to elect until all the facts are known. (2 Story Eq. J., § 1097, 1098 ; Dennistown v. Hubbell, 10 Bos., 166.) The same rule applies to ratification and waiver. (Hayes v. Stone, 7 Hill, 132; Semour v. Wyckoff, 10 N. Y., 213 ; Nixon v. Palmer, 8 id., 398 ; 2 Greenleaf, Ev., § 66 ; Cumberland Co. v. Sherman, 30 Barb., 575; Medrand v. Girod, 4 How. U. S., 560.) The statute of limitations not applicable. (Yeller v. Eckers, 4 How. U. S., 289; Edwards v. Bishop, 4 Comst., 61; Clapp v. Bromagham, 9 Cow., 555.) There was no adverse possession. (Bradstreet v. Clark, 12 Wend., 602; Livingston v. Peru Iron Co., 9 Wendell, 512 ; Crary v. Goodman, 22 N. Y., 170; Humbert v. Trinity Church, 24 Wend., 586 ; Crary v. Goodman, 22 N. Y., 170 ; Jackson v. Dennison, 4 Wend., 558 ; Cook v. Travis, 20 N. Y., 400; Calkins v. Isbell, 20 id., 147: Regua v. Holmes, 26 N. Y., 338; Devoe v. Fanning, 2 Johns. Ch., 252; Van Horn v. Fonda, 5 id., 416 op.; Prescott v. Neevers, 4 Mason, 334; Angell on Limitations, § 418; Baker v. Whiting, 3 Sumner, 476.) Mitchell’s deed was taken subject to the trust. (Smith v. Bowen, 35 N. Y., 83; Johnson v. Batsdory, 11 Johns., R., 97 of op.; Fisher v. Fields, 10 id., 506 of op.; Wormley v. Wormley, 3 Wheaton, 421; Allen v. De Witt, 3 Comst., 276.)</p> <p>That partition cannot be maintained. (Van Sandford’s Equity Pleading, 305 ; 2 Barb. Oh’y, 408; 5 Denio, 385 ; 1st Edition Crary’s Special Proceedings, 317, 319 ; 11th N. Y. Legal Observer, Stryker v. Lynch, 116; 2 Rev. Stat., 5th ed., p. 30, § 167; 17th Abbott’s Practice Reports, 452; 34 Barb., 56.) Plaintiff’s claim of ignorance does not excuse delay in bringing action. (5 Barnwell & Oress, 149; 20 Wend., 587; 20 John., 33; 5 Wend., 17, 30, 202; 24 Wend., 587; 9 John, 174; 10 John., 356 ; 13 John., 118; 18 John., 40, 355 ; 9 Wend., 511.) A conveyance by a trustee sufficient foundation for an adverse possession. (5 Cowen, 101; 3 Cowen, 229; 12 Wend., 602, 675; Bradstreet v. Clark.) The question of good faith is immaterial. (24 Wend., 587, 603 ; Humber v. Trinity Church, 26 Barb., 383, 402; Sand. Ch., 633, 738.) The action is barred. (Bailey v. Jackson, 16 John., 210; 10 Wend., 363.)</p>

The plaintiffs were merchants, doing business in the city of Rochester. The defendants were the proprietors of a mercantile agency. They published a semi-annual volume, containing the names of persons and firms doing business in various parts of the United States and Ganadas, and information in reference to their financial credit.

The plaintiffs occupied a store at the corner of Salina and Fayette streets, in the city of Syracuse. The basement room which extended out under the sidewalks was used for the storage and sale of carpets. Prior to the year 1864 the common council of the city of Syracuse caused a sewer to be constructed in Fayette street. Into this main sewer ran branch sewers.

<p>Appeal from order of the General Term, first department, affirming order bf Special Term, denying defendant’s application for leave to serve a supplemental answer, setting up his discharge in bankruptcy.</p> <p>This action was'commenced in January, 1867, the complaint alleging an indebtedness to one Arnold Medbury, deceased, a settlement of that indebtedness by the defendants with the administrator of the estate of the deceased, and an assignment of the debt to the plaintiff.</p> <p>The defendant, Isaac W. Swan, appeared and answered in February following. The cause has never been noticed for trial, and nothing has been done therein since the issue joined.</p> <p>In August, 1867, defendant Swan filed his petition in bankruptcy, in the district court of the United States for the northern district of New York, and On "the 5th day May, 1868, obtained in the said court the usual discharge from his debts. His attorney, Mr. Rathbun, in the summer of 1869, applied to the plaintiff’s attorney for permission to interpose a supplemental answer, setting up the discharge. The request was taken under advisement, and in the mean time it was agreed that if said Swan should thereafter make an application to the court for such permission, no objection would be urged against the same, on the ground of delay thereafter. The matter thus rested until the 23d of November, 1869, when Mr. Perry, the plaintiff’s attorney, advised Swan’s attorneys, that he would no longer continue the promise.</p> <p>The defendant’s attorneys immediately communicated with Swan, who was then out of the city; and after his return, prepared and served the papers, for the motion for leave to Swan to serve his supplemental answer setting up his discharge.</p> <p>That plaintiff’s consent to delay cured all previous laches. (Hall et al. v. Gordon, 1 How. Pr. R., 99; Center v. Gosling, 1 How. Pr. R., 210; Carter v. Goodrich, 1 How. Pr. R., 239.) The question as to effect of discharge cannot be tried on motion. (Reed v. Gordon, 1 Cow., 50; Baker v. Taylor, id., 165; Noble v. Johnson, 9 John., 259; Russell v. Packard, 9 Wen., 431; Smith v. Paul, 20 How. Pr. Rep., 97; Rich v. Salhinger, 11 Abbt., 344; Stewart v. Salhinger, 14 Abbt., 291.) The demand for which the action was brought is not of a judiciary character. (Duquid et al. v. Edwards et al., 32 How. Pr. R., 254; Chapman v. Forsyth, 2 How. U. S. R., 202; Stoll v. King, 8 How. Pr. R., 300; See Smith v. Edmonds, 1 Code Beporter, 86; White v. McAllister, id., 106; Metzgar v. Karst, 5 N. Y. Legal Ob., 49 ; Angus v. Dunscomb, 8 How. Pr. Rep., 14; Goodrich v. Dunbar, 17 Barbour, 644; Bussing v. Thompson, 15 How. Pr. Rep., 97.)</p> <p>That upon the application the merits of the proposed answer should be examined. (Morel v. Garelly, 16 Abb., 269.) The application was properly denied. (Hubbell v. Caulp, 11 Paige, 310; Gannon v. Keenan, not reported; Cutter v. Taylor, 1 Sandford, 593.) The debt sued on was not affected by the discharge; section 33 of the bankrupt act of 1867. ( Whitaker v. Chapman, 3 Lansing, 155.)</p>

This is an action of ejectment, brought to recover possession of certain lands situated in the town of DTewstead, Erie county. The facts appearing upon the trial are sufficiently stated in the opinion. A verdict was rendered by the jury in favor of the plaintiff for part of the land claimed. Exceptions were directed to be heard at first instance at General Term. That in construing a deed the intent of the parties must be considered. (8 How.

Appeal by defendant, Ackerman, from a judgment of the' Superior Court of the city of 27ew York, affirming a judgment for plaintiff entered upon verdict. Action upon a promissory note for $800. Defence usury. Usury is a crime; and evidence of other transactions of a similar character is admissible. (Russell on Crimes, vol. 2, pp. 776, 777, 778; Phil.

<p>Appeal by the defendant from a judgment of the General Term of the Supreme Court of the eighth judicial district, entered upon a verdict. Exceptions ordered to be heard at first instance at General Term.</p> <p>The action is to recover $5,800 and interest, being part of the amount of a check, of which the following is a copy :</p> <p>“Hew York, Ma/reh 26¿/¿, 1867.</p> <p>“ The Peoples Bank,</p> <p>“ Pay to the order of W. S. Holmes, six thousand eight “hundred dollars.</p> <p>“ $6,800. O. B. DIMMICK.”</p> <p>Indorsed : “ W. 8. Holmes. “ L. Crocker & Co.”</p> <p>Both defendants appeared and answered separately.</p> <p>The second trial, which is now under review, was between the plaintiff and the defendant, Hiram Colwell, only.</p> <p>The defendant, Hiram Colwell, sets up two defences. 1st, usury; and 2d, that the check is not the obligation of the firm of Colwell & Dimmick, but is the individual obligation of Obed B. Dimmick.</p> <p>The plaintiff lived in Buffalo. He was engaged in the hanking business individually, at the cattle yards, near Buffalo. The defendants lived at Hudson City, in Hew Jersey, and were engaged as partners in the business of buying and selling cattle on commission, as brokers. They began this business in May, 1866, and continued it for one year. Soon after commencing their business, they began to purchase cattle on joint account with third parties, and sharing the profits and losses with them, instead of receiving commissions for their services.</p> <p>In January, 1867, the defendants were engaged in the business of buying and selling cattle, with W. S. Holmes, the payee in the check, on joint account. His part of the business was to come to Buffalo and purchase the cattle, ship them by the Erie railway to Hudson city, in Hew Jersey, and see that they arrived there. The defendants’ business was to receive the cattle and to sell them. The profits and losses were divided between them.</p> <p>In the latter part of February, or fore part of March, 1867, the check in question and one other check were given, in blank, to Mr. Holmes to, go to Buffalo and purchase cattle under this arrangement. He went to Buffalo, purchased seventy-five head of cattle, filled up the other check for $4,000, and procured the money of the plaintiff, to pay for the cattle on that check.</p> <p>On the 26th day of March," 1867, Mr. Holmes appeared again at the cattle yards in Buffalo to purchase some more cattle. He bought seventeen head and went to the plaintiff’s office to procure money to pay for them, and to obtain money to buy other cattle. He there filled up the check in question. The plaintiff paid for the seventeen head of cattle.</p> <p>Being.................................... $1)658 57</p> <p>Gave Holmes check for..................... 5 5 000 00</p> <p>Paid charges for feeding sheep............... 28 00</p> <p>Gave Holmes in cash....................... 96 43</p> <p>Retained for exchange...................... 17 00</p> <p>Amount of check in question................ $6)800 00</p> <p>The seventeen head of cattle were sent by the Erie railway to the defendants, and they received and sold them. Hr. Holmes purchased some sheep with a portion of the money, and the defendants received the profits. The defendants also received a draft of $1,000, being a part of the proceeds of the check in question.</p> <p>The balance of the money over the $1,658.57 paid for the seventeen head of cattle, the draft of $1,000, the money paid for feeding the sheep, and the $96.43 paid to Hr. Holmes, he claims was stolén from his pocket on the cars, when he was going to purchase more cattle.</p> <p>The defendants, in their firm financial matters, used the name of “ O. B. Dimmick,” as representing the firm. The bank account was kept, and the cattle were paid for in that name. All of their checks were given in this name. The defendant, Hiram Colwell, knew this. He assented to the check in question being given, and said it would be right.</p> <p>Where one partner gives his check for money, to be used for the firm, even with the knowledge and approval of the other partner, firm not liable. (Colyer on Part., §§ 474-478, and note; Bindley on Part., 100 Law Lib., 200 marg., also 29 Law Lib, 6th series; Story on Part., §§ 134-136; Parsons on ISTotes and Bills, 130, and note; Coster v. Clark, 3 Edw. Ch., 411; Jaques v. Marquand, 6 Cow., 497; Le Roy v. Johnson, 2 Pet., 186; Emly v. Lye, 15 East, 7; Skiffkin v. Walker, 2 Campb., 308; Beavan v. Lewis, 1 Simon, 376; Green v. Tanner, 8 Metc., 411; Mead v. Tomlinson, 1 Day, 148,. and note.) The firm only made liable by use of firm name. (Kirk v. Burton et al., 9 M. & W., 283.) The discount of the check was usurious. (Oliver Lee & Co.’s Bank v. Walbridge, 19 N. Y., 134; Eagle Bank of Rochester v. Rigney, 33 id., 613; Price v. The Lynes Bank, 33 id., 55.)</p> <p>Upon the question of usury, the question of intent, in the reservation of exchange, was properly submitted to the jury. (Thurston v. Cornell, 38 N. Y., 281; Valentine v. Conner, 40 id., 248; Merritt v. Benton, 10 Wend., 116; Ontario Bank v. Schermerhorn, 10 Paige, 109; Marvine v. Hymers, 12 N. Y., 223; International Bank v. Bradley, 19 id., 245; Farmers' and Mechanics' Bank of Genesee v. Parker, 37 id., 140.)</p>

<p>The defendant, a married woman, had been in partnership with H., owning half the stock in trade, and half the real estate occupied for the purposes of the business, which was carried on in the name of H. and herself, her husband acting as her agent. Defendant bought out her partner, and, with her knowledge, the business was subsequently carried on by the husband in his own name, without any control or interference by her; he taking possession of the assets of the firm, and using them in the business for his own benefit, until he failed, when he assigned the personal property for the benefit of creditors, without any claim thereto on the part of defendant.</p> <p>Held, that the dissolution of the partnership was a revocation of the hus band’s agency, and her knowledge of the manner of conducting the busi ness thereafter implied an assent, and would preclude her from deriving any benefit therefrom; and that a finding of the referee, that the business was defendant’s, conducted by the husband as her agent, could not be sustained, either as a finding of fact or conclusion of law. Also, held, that necessary expenditures upon the real estate, not exceeding the amount of personal property received from the wife, were properly made, and for any excess, if claimed, the proper remedy was by creditor’s bill for an accounting.</p>

Action for specific performance of contract for the sale of lands in Brooklyn. The premises in question were owned by the defendant Dennis O’Donovan, and were sold to the plaintiff at public auction on the 11th of November, 1868.

This is an action of replevin, brought by plaintiff as assignee of Mary A. Gilman against the sheriff of Monroe county, who had taken the assigned property upon an attachment found against the assignor. In 1860, Thomas 0.

(Reported below in 2 Lansing, 71.) This is an action brought against defendant as sheriff of Cattaraugus county for an escape. On the 11th November, 1868, plaintiff perfected judgment in the Supreme Court against Abner N. Flint and Norman Bullock. On the 30th December, 1868, an execution against the persons was issued upon said judgment to the defendant, as sheriff' who arrested said Flint and Bullock and committed them to jail.

This action was brought, to recover back money paid under a judgment which had been reversed. Defendant set up three defences; first. That the court had no jurisdiction to reverse the judgment; second. That one of the defendants had appealed; and third. A denial of payment. Plaintiff demurred to the first two counts of defendants’ answer. The demurrer was sustained. From the order defendant appealed, but gave no undertaking and procured no stay.

(Reported below in 2 Lansing, 446,) This action was brought upon a bond given by the defendants to plaintiff upon the purchase by defendant, Messenger, of plaintiff’s interest in the bank of Canandaigua, The condition of the bond was, at all times, to keep “ the said Hart clear from all liabilities, and save him, the said Hart, harmless from all claims, whatsoever, against the said bank of Canandaigua, both of bills or notes of said bank deposits and liabilities of all…

<p>The right of a party in a case tried by a referee, to have separate findings of fact and conclusions of law, is a substantial one.</p> <p>Where a referee has failed to pass upon material questions of fact and law, the proper practice is to apply to the court, to send the case back to the referee, to pass specifically upon such questions or to re-settle his report. Should the application be denied, upon an appeal from the judgment, the proceedings to obtain further findings, can be inserted in the record, and the materiality of the findings asked for, can be determined at General Term or in this court upon the appeal.</p> <p>In such a case the presumption, that all material facts of which there was evidence have been found against the appellant, will not apply in respect to those matters as to which he has sought to obtain specific findings, but they will be regarded in the same manner as facts, which upon trial, the court has refused to submit to the jury.</p> <p>Plaintiff, instead of adopting this course, moved to set aside the report, “ or for such other or further order as should be proper;” which motion was denied.</p> <p>Held, that the order did not necessarily dispose of the right of plaintiff to further findings, but was simply a ruling upon a question of practice, as to the mode of obtaining relief; that it was discretionary with the court to grant the appropriate relief, under the words in the notice “ for such other and further order,” etc., and that the order was not appealable. There is no sufficient ground in any case, for entertaining an appeal in this court before judgment from an order in respect to findings.</p> <p>Note.—This case was accidentally omitted in its order in 6 Hand.—Rep</p>

<p>Appeal from an order made by the Supreme Court at General Term in the first district, reversing judgment in favor of plaintiff, entered upon the report of a referee, and granting a new trial. (Reported below, 44 Barb., 31.)</p> <p>The action was against the defendant, a hotel proprietor, to recover the value of watches, jewelry, etc., claimed to have been stolen from the plaintiff’s room in October, 1861, while he was a guest in the inn.</p> <p>In October, 1861, the defendant was the proprietor of and kept an inn, known as French’s Hotel, in the city of Hew York; and the plaintiff was a guest therein from the fourth, to and including the eighth of October.</p> <p>The plaintiff arrived in Hew York on the fourth of October from Rio Janeiro ; and on that day, before going to the hotel, he delivered a part of the jewelry, etc., in question, to. a custom-house officer with a view to paying the duty thereon.</p> <p>On the seventh of October he paid duty on the watches, jewelry, etc., and received the same from the custom-house officers.</p> <p>On the morning of the eighth of October, the plaintiff had the aforesaid watches and jewelry and other valuables in a box wrapped in oilcloth and tied with a cord, constituting a package sixteen inches long, ten inches wide, and about seven inches high. He presented the same to the clerk or bookkeeper of the defendant, at the office of the hotel, and requested him to place the same in the safe for valuables, which was in the office; the book-keeper then told him there was no necessity for that, and directed him to take the package to his, plaintiff’s room, saying it would be just as safe there. Thereupon the plaintiff took the package to his room, placed it in his trunk, which he locked, and then locked his room, and delivered the key of his room to the clerk in the office, and left the hotel to attend to some business in the city.</p> <p>When the plaintiff offered the package to and requested the book-keeper to place it in the safe, the book-keeper made no inquiry as to the contents of the package, nor did the plaintiff make any statement as to such contents.</p> <p>The plaintiff resided at Syracuse, and intended to leave for that city on the afternoon of October eighth. He returned to the hotel about one o’clock in the afternoon, and went to his room and packed and locked his trunk containing said package, which was then safe. He then locked the door of his room and delivered the key to the book-keeper, at the office, and stated to him that he intended to leave for Syracuse by the first train, and ordered his trunk to be brought down immediately, his bill to be made out, and that he would return in a few minutes and pay it.</p> <p>The plaintiff then went into an eating saloon in the basement of the hotel. In a few minutes he returned to the office, paid his bill and inquired for his trunk, and learned that it had not been brought from his room.</p> <p>The plaintiff then went with a porter of the hotel to his room for his trunk, and upon unlocking the door of the room it was found that the room had heen entered, the trunk broken open, and the watches, jewelry, etc., stolen.</p> <p>The defendant kept a safe in the office for the deposit of jewelry, valuables, etc. This the defendant knew prior to the eighth of October. The rules and regulations and notice required by chapter 421, Laws of 1855, were hung up in the room occupied by plaintiff.</p> <p>The value of the articles stolen was $1,856; and for this amount, with interest, judgment was ordered.</p> <p>The referee’s findings of fact are conclusive. (Code, § 268; Marco v. L. and L. Ins. Co., 35 N. Y., 664; Fellows v. Northrup, 39 N. Y., 117; Mason v. Lord, 40 N. Y., 477; Putnam v. Hubbell, 42 N. Y., 106, 113.) Such other facts as the evidence tended to prove, will he assumed to sustain the referee’s conclusions of law. (Chubbuck v. Vernam, 42 N. Y., 432; Grant v. Morse, 22 N. Y., 323-325; Carman v. Pultz, 21 N. Y., 547.) On the facts found defendant was liable. (2 Kent’s Commentaries, p. 593,-1st ed., p. 785, 11th ed; Story on Bailments, § 470, etc.; Hulett v. Swift, 33 N. Y., p. 571; Piper v. Manny, 21 Wend., 282; Grinnell v. Cook, 3 Hill,485 ; Clute v. Wiggins, 14 J. R„ 174; Wilkins v. Earle, decided by Commission of Appeals, January Term, 1871, reversing decision of Superior Court, reported 19 Abbott, Pr. R., 190; Kent v. Shuckard, 2 Bam. & Adolph., 803 ; 1 Smith’s Lead. Cases, 309 ; Coyle’s Case, 8 R., p. 33 ; Piper v. Manny, 21 Wend., 282-284; Purvis v. Coleman, 21 N. Y., 111, 116; Richmond v. Smith, 8 Barn. & Cress., 9.) The fact that plaintiff did not state contents of package when he presented it to the clerk, does not exonerate defendant. (2 Kent’s Commentaries, p. 594, 1st ed.; 787, 11th ed.; Story on Bailment, § 479; Kellogg v. Sweeney, 1 Lansing, 398 ; Wilkins v. Earle, 19 Abbott, Prac. R., dissenting opinion and cases cited, p. 203, 205,207, and cases cited ; Fowler v. Dorlon, 24 Barb., 384,389; Keegan v. H. & R. R. Co., 8 N. Y., 175.) As the package was safe until packed for departure, defendant was as fully responsible as if package had been deposited in safe. Stanton v. Leland, 4 E. D. Smith, 88, 92.)</p> <p>The act of 1855 has reference only to “ money, jewels, and ornaments.” (Hyatt v. Taylor, 42 N. Y., 258.) The guest should, therefore disclose, that package offered for deposit contains these articles. (Gibbon v. Paynter, 4 Burr., 2298 ; Pardee v. Drew, 25 Wend., 459; Richards v. Westcott, 2 Bos., 589; Warner v. W. S. Co., 5 Robt., 490; Purvis v. Coleman, 21 N. Y., 111.)</p>

(Reported below, 2 Daley, 454.) The action is brought against defendant as a common carrier, tó recover damages for the non-delivery of a quantity of cotton. The defendants are common carriers by railroad and steamboat between Philadelphia and New York. Seven hundred and ninety bales of cotton were shipped by the plaintiffs, June 25, 1864, at Cairo, Illinois, on the Illinois Central railroad. The Illinois Central issued its receipts or bills of lading for this cotton.

(Reported below in 1 Lansing, 397.) The action is brought to recover for a quantity of gold coin, alleged to have been lost through the negligence of defendant, an innkeeper. Defendant was the proprietor of a hotel in the city of Kew York, known as Sweeney’s hotel, kept on the European plan.

Appear from order of the General Term of the Supreme Court, first department, affirming an order of Special Term, which denied a motion to confirm the report of a referee, as to the disposition of surplus moneys arising upon a foreclosure sale, and made other disposition thereof.

The court found the following facts: That about the 1st day. of November, 1861, the defendant, Malcolm, recovered a judgment against the plaintiff and one Peter Ziglio for $2,202.90, which he still ownéd in January, 1867, there having been a sum of $200, paid upon it by Garvey, in October 1866, the balance remaining unpaid.

Appeal' from a judgment of the General Term of the Hew York Common Pleas, affirming a judgment entered upon the report of a referee in favor of plaintiff. Action for use and occupation of a store in the city of Hew York, for a quarter ending in May, 1868. The plaintiff, by lease dated March 8th, 1866, demised to the defendants the store and lot Ho. 105 Liberty street, Hew York, for five years from May 1st, 1866, at the annual rent of $5,000, payable on the usual quarter days.

<p>Appeal from a judgment of the General Term in the fourth district, affirming a judgment entered in Montgomery county, in favor of the plaintiff on the report of a referee.</p> <p>The action was brought, to compel the surrender to the plaintiff of 134 shares of the capital stock of the First National Bank of St. Johnsville, which had been acquired by the appellant in the following manner:</p> <p>In November, 1866, the plaintiff then being the owner of the shares in question, had an account with Goodyear Brothers & Durant, of the city of New York, stock brokers, relating to other stocks, which they had purchased and were carrying for him. For the purpose of securing any balance which might become due them on that account, the plaintiff delivered to and left with them, the certificate of the 134 shares in dispute, with a blank assignment, and power of attorney to transfer indorsed thereon, signed by the plaintiff, in the following words:</p> <p>For value received, the undersigned hereby assigns and transfers unto * * * * shares of the capital stock of the First National Bank of St. Johnsville, and do hereby constitute and appoint * * * true and lawful atttorney, irrevocable for * * * and in * * * name and behalf, to make and execute all necessary acts of assignment and transfer required by the regulations and by-laws of said bank.</p> <p>In witness whereof, I have hereunto set my hand and seal, this —— day of-.</p> <p>(Signed.) B. MoNEIL.</p> <p>Sealed and sworn in presence of-.</p> <p>On the 18th of June, 1868, at the city of New York, the appellant at the request of Goodyear Brothers & Durant,' paid the sum of $45,135 to Fred. Butterfield, Jacobs & Go., receiving from them certain securities, including the certificate and power for the 134 shares in question, which had been previously pledged by Goodyear Brothers & Durant to Fred. Butterfield, Jacobs & Go.</p> <p>Goodyear Brothers & Go. were at that time insolvent, and indebted to the appellant. In pledging the plaintiff’s shares, they had acted without actual authority from him, and without his knowledge. He was indebted to them, on the account for which the shares were pledged to them, in the sum of $3,000, with interest from December 1,1866; but the account had not been rendered, or any demand made.</p> <p>The appellant, at the time of receiving the shares, had no knowledge of the plaintiff’s interest therein.</p> <p>The cashier of the appellant, within a few days after receiving the certificate, assignment and power, filled in the blank in the assignment and power with “ I. H. Stout, cashier, Tenth National Bank, New York, one hundred and thirty-four,” and dated the same the 19th day of June, 1868, and sent the scrip to the First National Bank of St. Johnsville, for the purpose of having the shares transferred on the books accordingly ; but such transfer was prevented by an order of injunction in this action.</p> <p>The plaintiff demanded of the appellant a surrender of the scrip, on payment of the balance due by him to Goodyear Brothers & Durant; which demand was refused.</p> <p>The value of the shares was $17,420. The balance of the advance made by the appellant thereon ($45,135, less the proceeds of the other securities received therewith, $29,915.19), was $15,219.81, besides interest.</p> <p>When the certificate and power came to the possession of the appellant, they bore the proper revenue stamp, duly canceled with the stamp of Goodyear Brothers & Durant, and the name of Ch. Goodyear as subscribing witness to the power. The referee found, that when the plaintiff delivered them, they were not stamped or witnessed, anrLthat the plaintiff had never authorized those acts.</p> <p>The referee found in favor of t formity with his report, a judgment was entered, requiring a surrender of the scrip to the plaintiff, on payment by him of the $3,000 and interest due by him to Groodyear Brothers & Durant. x</p> <p>This judgment was affirmed at G-eneral Term, and an appeal taken to the late Court of Appeals, where, after argument, that court was divided and a re-argument ordered. The case now comes up on the re-argument.</p> <p>Plaintiff constituted Goodyear Bro.’s & Durant his agents, with power to sell; and if the agents deviated from instructions, still plaintiff is bound. (Story on Agency, § 127, 131; Com. Bank of Buffalo v. Kortright, 22 Wend., 361; Sargent v. Franklin, Ins. Co., 8 Pick., 90.) Defendant as bona fide holder had the right to fill up the blanks, and to require a transfer of the shares on the books of the bank. (Com. Bank of Buffalo v. Kortright, 22 Wend., 348 ; S. C., 20 Wend., 92; Fatman v. Lobach, 1 Duer, 534; Bank of Utica v. Smalley, 2 Cow., 770; Little v. Barker, 1 Hoff. Ch. Rep., 487; Boyson v. Coles, 6 Maule & Selw., 14; Crocker v. Crocker, 31 N. Y., Rep., 507; Bank of Buffalo v. Kortright, 22 Wend., 361; N. Y. and N. H. R. R. Co. v. Schuyler, 34 N. Y., 80.)</p> <p>Defendant is not a bona fide holder without notice. (15 N. Y., 360; 27 How., 1; 49 Bar., 364; 20 Wend., 277.) The court will not disturb the referee’s finding. (5 Duer R., 216; 3 Comstock, 168; 7 Bosworth, 394; 35 How. P. R., 286; 3 E. D. Smith’s Reports, 98 ; 36 N. Y., 342.) The certificate is not negotiable, and a bona fide assignee takes subject to equities. (13 N. Y., 600; 6 Duer, 574; 28 N. Y., 604; 34 N. Y., 80; 22 N. Y., 535.) G. B and D. could not sell without first demanding payment and giving plaintiff notice of time and place of sale. (4 Denio, 227; 7 Hill, 501; 2 Comstock, 443 ; 25 Howard, 261; 16 N. Y., 392; 25 How., 284; 40 Barb., 648; Markham v. Jaudon, 2 Hand, 235.) The legal title remained in plaintiff until actual transfer on the books of the bank. (13 N. Y., 625 ; 2 Wheaton, 393; 34 N. Y., 80.) Until then the prior equities mil prevail. (3 Paige, 361; 6 Duer, 574.)</p>

Appeal by the defendant from a judgment of the General Term of the Supreme Court in the eighth judicial district, affirming a judgment entered on the report of a referee. The action is to recover damages for the breach of the covenant, contained in a deed executed by,-the defendant to the plaintiff, conveying a flouring and grist-mill/ and the premises upon which the mill is situated.

<p>The rule of law which creates an easement in favor of one Ají two tenements or heritages belonging to a single owner, upon the sale of one of them, is confined to cases where there is an a/ppwrent sign of servitude on the part of the other, which would indicate its existence to a person reasonably familiar with the subject upon an inspection of 'the.premises.</p> <p>The owner of two adjoining houses and lots in. the city of New'York, known as Nos. 83 and 85, built a vault half in the lot of each, extended the division fence over the centre of the vault, and then erected anouthouse for each dwelling, on either side of the fence, over the vault. A drain from the vault ran through the lot of No. 85. Defendant purchased No. 85, receiving a full covenant deed without reservation. After that, plaintiff purchased No. 83. Defendant closed up the drain.—Held, the servitude was not apparent, and no easement existed in favor of No. 83.</p>

— In December, 1862, the defendant Clark, was the sole owner of the sloop Boliver; and about that time he contracted to, and did sell, an undivided half of the vessel to John W. Ward for $1,500. Clark agreed to put Ward in possession in the spring of 1863. In the meantime the vessel was overhauled and repaired.- In the month of May, 1863, dark, pursuant to the contract of sale, delivered possession of the property to Ward as part owner and as captain.

Motion to dismiss appeal, upon the ground that the judgment appealed from was not an actual determination of a General Term. (Papers and points not furnished reporter.)

<p>Appeal from an order of the General Term of the Superior Court of the city of Hew York, reversing a judgment in favor of the plaintiff, entered upon the report of a referee, and granting a new trial, on questions of fact as well as of law.</p> <p>The action was brought to recover damages caused by a collision between the sloop Westchester, owned by the plaintiff, and the steam propeller Armenia, owned by the defendants.</p> <p>The collision occurred on the 14th of Hovember, 1865, at about two o’clock a. m., in Haverstraw bay, on the Hudson river.</p> <p>The sloop had left Cold Spring for Hew York on the afternoon of the 13th of Hovember, laden with shot, shell and castings, and was proceeding southerly down the river, with an ebb tide. The steamer was ascending the river, having in tow four barges; one lashed to her starboard side, and three attached to a hawser about 200 feet long. The effect of the current was to set the barges to the eastward of the wake of the steamer.</p> <p>The night was clear starlight; both vessels had their lights set, in accordance with the United States regulations. The river at the point of collision is about two and a half miles wide, the steamboat channel about a mile wide, from the west shore to the middle ground. The collision occurred in the steamboat channel.</p> <p>The bow of the steamer struck the sloop on her port bow, just forward of the chain plates, and she sank in a few minutes.</p> <p>There was no lookout on the steamer, other than Delamater, the man at the wheel, in the pilot-house. The first pilot was in his berth, and it does not appear that any of the crew of the steamer were on deck, except the man at the wheel.</p> <p>There were lookouts on the barges in tow, and there was a proper lookout on the forward deck of the sloop.</p> <p>The man at the wheel of the steamer testified, that he saw the sloop approaching at the distance of a mile or a mile and a half; that he saw both her lights; that he was heading due north, and she bore a little to the eastward of him; that after that she appeared to stand more to the east, till she got within fifty yards, and then she sprang a luff and came across the bow of the steamer; that when she was within twenty-five or thirty yards he rang to slow and stop, and then the vessels collided; he did not ring to back.</p> <p>The sloop was seen at the distance of about a mile by persons on the barges. Jacob Bogardus, a witness called by the defendant, who was on one of the barges in tow, testified that he saw the sloop coming, and said to his men that she was coming close, and sent word to the starboard barge of the hawser tier, to stand ready to sheer if the sloop came near; that when he first saw her, she was in a line with the port side of the steamer’s smoke-stack; that as she drew near she appeared to work farther to the eastward; that he .had his eyes on her all the time, because he did not know on which barge she would come. He also testified to her luffing when she got near, as did other witnesses on the barges.</p> <p>There was no change in the course of the steamer, but at the time she stopped her engine she was on the same course which she had been keeping for half an hour previously.</p> <p>The tide was running ebb at the rate of about two miles per hour. The steamer was making about one and a half miles per hour by the land.</p> <p>The principal conflict of evidence related to the wind. Those on board the sloop testified on the part of the plaintiff, to* the effect that for one or two hours before the collision, there had been no wind, except occasional puffs of air from various directions, only enough to carry the boom from one side to the other, and except that, when off Haverstraw, about half an hour previous to the collision, the sloop had had a slight breeze for about ten minutes; that that breeze died away, and that from that time to the collision the sloop was drifting with the tide, heading down the channel and having no steerage way. That the crew of the sloop saw the steamer approaching at the distance of several miles, but paid little attention to her,' until she was near and heading toward them, when they became apprehensive of a collision. That as the steamer approached, the crew of the sloop hallooed to the steamer, but there was no response, or apparent effort on the part of the steamer to clear the sloop. That when the vessels got within about 100 yards of each other, a little air drew off from the west, enough to shove the boom over, but not enough to give steerage way to the sloop ; that when the steamer had approached to within forty or fifty feet of the sloop, she rang to slow and stop, and in a moment afterward struck the sloop; that up to the time of the collision the sloop had no steerage way, and the puff of wind last spoken of, was only sufficient to throw her boom over to the eastward, and her bow a little to the westward.</p> <p>On the part of the defendants, evidence was given by various witnesses on the barges, and elsewhere, to the effect, that at the time of the collision, there was a good wind blowing from the north-west, and some of them testified that the sloop was going at the rate of six to eight miles an hour. There was also evidence of numerous witnesses, as to declarations of the master of the sloop, inconsistent with his testimony.</p> <p>The referee found, that the collision was caused by the negligence of the defendants’ employes, managing the steamer, without any fault or negligence on the part of the persons managing the sloop.</p> <p>The plaintiffs damages were liquidated by stipulation, with the exception of the value of the sloop, and the question of interest, which were left to be determined by the referee.</p> <p>The referee allowed interest on the damages, which consisted of the value of the vessel, less the value of hull and rigging saved, the value of cargo and freight lost, and the expenses of raising the hull and cargo saved. The value of the cargo saved far exceeded the cost of raising.</p> <p>Ho vessel has a right to come in close proximity with another, and claim exemption, because the other commits a mistake. Austin v. N. J. Steamboat Co., decided in Court of Appeals Hovember 22d, 1870, N. Y. Transcript, April 13th, 1871; The Carroll, 8 Wallace, 302.) The steamer had no proper lookout. (The Ottawa, 3 Wallace, 268, 272; The Hypodame, 6 Wallace, 219.) It was proper for the Westchester to drift. (The Kentucky, 4 Blatch., 325; The Scioto, Davies R., 359; S. C., 5 Legal Ob., 442; Fritz v. Bull, 12 How., U. S., 466; Butterfield v. Boyd, 4 Blatch., 356 ; Sturgis v. Boyer, 24 How., U. S., 110, 118, 120; Pearce v. Page, 24 How., U. S., 228, 231, 233 ; The Island City, 5 Blatch., 264; Strout v. Foster, 1 How., U. S., 89 ; Steamship Fannie v. Schooner Ellen Forrester, U. S. S. C., Daily Transcript, May 13th, 1871; Crockett v. Newton, 18 How., U. S., 581, 583 ; Laune v. Tourne, 9 La., 428; Newton v. Stebbins, 10 How., U. S., 586 ; The Carolus, 2 Curtis, 69 ; The Globe, 6 notes of cases, 275; 1 Parsons on Shipping and Admiralty, 571, 572.) If case is doubtful, referee’s conclusions should not be reversed. ( Westerlo v. Dewitt, 36 N. Y., 344, 345; Everett v. H. R. R. Co., 24 How., 104.) Art. 20 of act of congress of 1864 violated, as there was no lookout. (Beck v. S. R. T. Co., 6 Robt., 82, 92; The Ottawa, 3 Wal., 268 ; The Hypodame, 6 Wal., 216.) The referee was correct in allowing interest. (The Mary Jane Vaughan v. The Telegraph, 2 Benedict R., 47; Watkinson v. Langdon, 8 John. R., 213; Klock v. Robinson, 22 Wendell, 157; Sedgwick on Damages, 385; The Baltimore, 8 Wal., 385.)</p> <p>The order of General Term will be affirmed, if there is evidence upon which its views can be based. (Code, § 268 ; Hoyt v. Thompson, 19 N. Y., 207; Beebe v. Mead, 33 N Y., 587; Coleman v. Second Avenue R. R. Co., 38 N. Y., 201.) If plaintiff’s negligence contributed in any degree to injury, he cannot recover. (Button v. H. R. R. Co., 18 N. Y. 248; Kelsey v. Barney, 12 N. Y., 425; Grace v. Girdler, 7 Wall., 196; Dowell v. Steam Nav. Co., Ell. & Bl.; Nelson v. Leland, 22 How., 55 ; Rathbun v. Payne, 19 Wend., 398; Strout v. Foster, 1 How., U. S., 89 ; The Indiana, 1 Abb. Adm., 330 ; The Potomac, 8 Wall., 590; The Champion, 1 Abb. Ad., 202, 206, 207; Neal v. Gilbert, 23 Conn., 437.) He must prove affirmatively due care. (Drew v. Chesapeake, 2 Doug., 33; Haldeman v. Beckwith, 4 McLean, 286; Ward v. Armstrong, 14 Ill., 283) 27o lookout independent of pilot required. (The Farragut, 10 Wall., 334.) The presumption is, defendants were free from negligence. (1 Cowen & Hill’s notes, 3d ed., 441; Star v. Peck, 1 Hill, 270, 273; Butterfield v. Boyd, 4 Blatchford, 356, 358.) Evidence so decided in favor of defendants, that decision of referee is not final. (Adsit v. Wilson, 7 How., 64, 66; Jackson v. Steinburgh, 1 Caine’s, 163 ; Conrad v. Williams, 6 Hill, 444, 457; Boyd v. Colt, 21 How., 191; Strong v. Place, 33 How,, 114.)</p>

Samuel Y. Hoffman, owner of premises 258, 259 and 260 Broadway, Hew York city, leased the same to Daniel Devlin for five years, from May 1st, 1864.

” The relators, at the time of making the demand, required the supervisor to pay to them the sum of $30,000, whicíiwas refused, upon the ground that the law did not give him authority to pay it over. A tax of $30,000 had been imposed; and between $26,000 and $27,000 had been collected and paid over to defendant.

<p>Appeal from a judgment of the General Term of the seventh judicial district, affirming a judgment entered in Monroe county in favor of plaintiff upon the report of a referee. (Reported below in 1 Lansing, 193.)</p> <p>Prior to the 29th of January, 1864, Mrs. Charlotte H. Brown was the owner in fee of lots 55, 56, 57, 58, and 59, on the east side of Magne street, in the city of Rochester.</p> <p>On that day, she, by written contract, agreed to convey all those premises, except thirty-three feet off of lot 55, to Ezra W. Acer, the plaintiff herein, upon the payment by him of the sum of $1,200.</p> <p>Acer was the owner in fee of lot No. 1 in the Whitney tract.</p> <p>Prior to the 24th day of April, 1867, Acer had made such payments upon this contract, that there remained due only the sum of $550; and on that day he entered into a written contract with George G. Curtis, one of the defendants, to convey to him the premises described in Mrs. Brown’s contract, and also lot No. 1, for the sum of $5,000, to be paid by Curtis, in part, by conveying to Acer other land, giving to Mrs. Brown a first mortgage to secure the sum due to her on Acer’s contract, viz., $550; and giving to Acer a mortgage on the same premises of $3,380.20.</p> <p>Acer had been negotiating with Mrs. Brown for the residue of lot 55. Curtis desired to obtain it; and after making the contract of April 24th, Acer and Curtis desired to make an arrangement with Mrs. Brown, by which she would execute a deed to Curtis instead of Acer, and take his bond and mortgage for the unpaid purchase-money remaining on Acer’s contract.</p> <p>In pursuance of their wishes she agreed to sell to Curtis the residue of lot 55 for $325, and include that with the land mentioned in her contract with Acer, in one deed, running directly to Curtis.</p> <p>Accordingly, on the 3d day of June, 1867, she did, by deed dated on that day, for a consideration (as therein recited) of $1,550, convey to Curtis the premises embraced in the contract with Acer, and also the residue of lot 55.</p> <p>The deed contains the usual covenants of warranty for quiet possession, and the following recital: “ This conveyance is made in pursuance of a contract of sale of said premises made and entered into by the party of the first part, for a conveyance thereof to one Ezra W. Acer, of whom the said party of the second part has become the assignee or purchaser; and as such entitled to a fulfillment thereof, by virtue of this conveyance; said contract being dated January 29th, 1864.”</p> <p>It was placed by her in the hands of her agent, Hr. Crittenden, through whom the arrangement for it had been made by Acer and Curtis.</p> <p>On the 5th of June, 1867, Curtis called on Crittenden, requested the delivery of the deed; and in response to Hr. Crittenden’s inquiry, as to whether he (Crittenden) was authorized to deliver it under the agreement between him (Curtis) and Acer, was answered by Curtis that it was all right.</p> <p>Crittenden thereupon delivered the deed to Curtis, and Curtis paid him $881.50 ($600 in money and his bond secured by mortgage for $281.50), that being the balance of $550 due on the Brown and Acer contract, and the price of the residue of lot 55.</p> <p>On the' same day the deed was placed on record, and Curtis executed to defendant, Weseott, a mortgage upon all the premises described in the deed from Hrs. Brown, as security for the payment of $6,000.</p> <p>This sum was made up in part of a precedent indebtedness from Curtis to Acer, and in part of a present consideration as follows: Precedent debt, $3,700; present consideration, $2,850. Curtis was in possession when he received the deed from Hrs. Brown, and when he gave the mortgage.</p> <p>The referee found, “ that said Weseott was in no way privy to, nor had he any notice or knowledge of any fraud in regard to any of the matters aforesaid, on the part of said Curtis; and he received said mortgage to himself, without any intent or purpose, on the part of said Weseott, to defraud this plaintiff, nor had.he any notice of the plaintiff’s rights, except such as he may be charged with by the recital in the said deed from Hrs. Brown to Curtis.”</p> <p>And, as conclusions of law, he held:</p> <p>1. “ That Acer was entitled to receive from Curtis a mortgage of $3,380.20 upon the Hague street lots, second only to a mortgage to Hrs. Brown of $550.”</p> <p>2. “ That, by the recital in the deed from Brown to Curtis, Weseott was chargeable with notice of Acei’’s right to such mortgage;” and,</p> <p>3. “ That Acer should have a lien on such premises for $3,280.20 prior to Wescott’s, and that the mortgage of the latter should he postponed thereto.”</p> <p>Plaintiff must recover on case made by complaint. (Field v. Mayor, 6 N. Y., 179; Wright v. Delafield, 25 id., 270.) Fraud was not proved, and plaintiff not entitled to the relief granted. (Wilde v. Gilson, 1 H. of L. Cases, 605, 622.) The recital in the deed was no notice to Wescott of Acer’s equities. (Earl of Montague v. Preston, 2 Vent., 170; Hyatt et al. v. Phifer, S. C. of North Carolina; Johnson v. Crane, 40 Barb., 78; 13 Ves., 120; Mod. Ch., 327; Newland, 511; Bonner v. Ware, 10 Ohio, 465; Bell v. Duncan, 11 id., 192; Brush v. Ware, 15 Pet., 94; Lessee of Buckhart et al. v. Bucher, 2 Binn., 455; Scott v. Evans, 1 McLean, 486; Morse v. Hunter, 1 Gilm., 317; Gilbert v. Petiter, 38 Barb., 572; S. C., 38 N. Y., 165; Jones v. Smith, 1 Hare, 43; S. C., 1 Phill., 244.) Purchaser not bound to go elsewhere to ascertain if recital is false. (Frost v. Beekman, 1 Johns. Ch., 288; S. C., on appeal, 18 Johns., 544; Peck v. Mallam, 10 N. Y., 509; Johnson v. Crane, 40 Barb., 78-88; 2 Mason C. C., 531; Curtis v. Root, 28 Ill., 376.) The question involved is one of good faith. Gross or culpable negligence must be shown. (Dey v. Dunham, 2 Johns. Ch., 182; Jackson v. Burgott, 10 Johns., 457; Jackson v. Van Volkenburgh, 6 Cow., 260; Fraser v. Western, 1 Barb. Ch., 220; Brown v. Blydenburgh, 7 N. Y., 141; Williamson v. Brown, 15 id., 354; Ware v. Egmont, 31 E. L. & Eq., 87.) Acer was guilty of negligence in not disclosing his equities, and must take the consequences. (1 McN. & G., 446; Deane v. Hale, 3 Russ., 11, 14, 21; Rice v. Rice, 2 Drew. Ch., 73; Hewitt v. Loosemore, 9 Hare, 449; Dowle v. Saunders, 2 H. & M., 242; Colyer v. Finch, 5 H. L. C., 905; Perry, Herrick v. Atwood, 2 De G. & J., 21; Layard v. Maud, 4 L. R. Eq. Cas., 397, 404.) Defendant improperly charged with costs. (Murray v. Ballou & Hunt, 1 Johns. Ch., 565-581; Murray v. Lylburn, 2 id., 441.)</p> <p>Eeeital in deed constructive notice to defendant. (Earl of Montague v. Preston, 2 Vent., 170; Reeder v. Barr, 4 Ohio; Howard Ins. Co. v. Halsey, 4 Seld., 271, 274.)</p>

The action is to recover possession of a steam engine and boilers, taken from the premises hereafter mentioned. In October, 1865, the plaintiff and one Comstock were the owners in fee as tenants in common of fifteen acres of land, on which was located a steam mill with engine and boilers attached.

<p>Appeal from an action of the General Term of the second 1 judicial department, affirming an order of Special Term awarding a peremptory mandamus, directing defendants to issue the bonds of the town of Yonkers in the sum of $60,000, pursuant to certain acts of the legislature, relating to the laying out of roads in the towns of Yonkers and East Chester, in the county of Westchester.</p> <p>The relators are commissioners appointed by chapter 262, of the Laws of 1869, entitled “ an act to authorize the towns of Yonkers and East Chester, in the county of Westchester, to widen, make, extend, and improve several highways in said towns.”</p> <p>Sections 1 and 2 appoint the commissioners with power to lay out and build four roads in said towns.</p> <p>Section 3 empowers the commissioners to build the road in sections with this restriction. “ But no part of the money to be expended shall be paid out, nor any contract thereof made until all the roads, for their entire length, have been laid out and established as herein provided; and the rights of way shall be acquired for the section of the road on which the money is to be expended.”</p> <p>Sections 4 and 5 require surveys and maps to be made, and commissioners of assessment and estimate to be appointed, who are to report their assessment to the court, to be confirmed, modified, or sent back as the court shall direct.</p> <p>Sections 6 to 12 provide, that after the report is confirmed, it shall be delivered to the commissioners, “ who shall be, thereupon, authorized to cause such improvements to be made.”</p> <p>Section 17 vest the commissioners with power, to make, grade, drain, gravel, and improve the roads 5 and to construct all necessary bridges therefor.</p> <p>Section 21 limits the aggregate expenses of “ making, grading, draining, and improving said road ” to $10,000 per mile, exdusi/oe of bridges.</p> <p>Section 19 directs, that such sums as shall be necessary “ to make, grade, drain, and otherwise improve said roads,” shall be raised by the sale of town bonds, to be issued by the town supervisor and clerk, upon the requisition of the commissioners. The commissioners are to convert the bonds into money, and use the proceeds in “ making and improving said roads.” All the acts required to be done by sections 1 to 62 were done before April 11, 1870, when the report of the commissioners of estimate and assessment was confirmed by the Supreme Court, and delivered to relators.</p> <p>The legislature then passed an act amending the original one (chapter 340, Laws of 1871.) Four additional roads were authorized. That portion of section 3, above quoted, was repealed. The limitation of expense in section 21 was changed to $20,000 per mile.</p> <p>The relators made a contract for building the road authorized by the original act, and made a requisition upon the defendants, supervisor, and town clerk, of Yonkers, for bonds to the amount of $60,000. The length of the road in that town was 11-^y miles ; the contract price over $60,000. The defendants refused to issue the bonds.</p> <p>The acts, as far as they provide for the issuing of bonds by relators, without the consent of the taxable inhabitants, are unconstitutional and void. (1 Ii. S., 337, §§ 1, 2; People v. Mayor, etc., 4 N. Y., 419; Thomas v. Leland, 24 Wend., 65 ; People v. Lawrence, 41 N. Y., 123; Bank of Rome v. Village of Rome, 18 N. Y., 38; S. C., 19 N. Y., 20 ; Starin v. Town of Genoa, 23 N. Y., 439 ; People v. Mead, 24 N. Y., 114; Clarke v. City of R., 28 N. Y., 605; S. C., 13 How., 206; People v. Mitchell, 35 N. Y., 551; Thomson v. Lee Co., 3 Wal., 327; People v. Com. Council, N. Y., 3 Keyes, 81; Swart v. Hulburt, 51 Barb., 312, 317; Hampshire v. Franklin, 16 Mass., 83; People v. Mayor, etc., 51 Ill., 17; People v. Salomon, 51 Ill., 37.) They are void under section 12, article 6, of the Constitution. (People v. Kern, 27 N. Y., 188; Newell v. People, 7 N. Y., 9.) It was a condition precedent to construction of work, that all the eight roads should be laid out. (Town of Duanesburgh v. Jenkins, 46 Barb., 294; Eli v. Holton, 15 N. Y., 595; McKibbon v. Lester, 9 Ohio., N. S., 627; Hartung v. People, 22 N. Y., 95, 109; 1. and M. Canal v. Chicago, 14 Ill., 334.)</p> <p>The relators are ministerial officers, having no discretion, and are liable for refusal to act as commanded by law. (Caswell v. Allen, 7 John., 63 ; People v. Mayor of B., 1 Hill, 545; People v. Brooks, 1 Denio, 457; Morris v. People, 3 Denio, 382; Ross v. Curtis, 31 N. Y., 606 ; People v. Martin, 58 Barb., 286.) The act does not confer unlimited power of taxation. The expense of roads is limited. No power1 to tax for bridges is given. (Clark v. Rochester, 28 N. Y., 605 ; Laws of 1851, p. 767, § 285; Laws of 1853, p. 596 ; Bank of R. v. Village of R., 18 N. Y., 38 ; Laws of 1869, chap. 907; People v. Mitchell, 35 N. Y., 551; Starin v. Genoa, 23 N. Y., 441; Gould v. Sterling, 23 N. Y., 456.) The act of 1870 does not change the position of relators, in reference to the roads mentioned in act of 1869. (Eli v. Holton, 15 N. Y., 595 ; Duanesburgh v. Jenkins, 46 Barb., 294.)</p>

The facts upon the question decided appear in the opinion of the court. The court is bound to presume judgment was set aside on questions of law only. (E. R. Bank v. Kennedy, 4 Keyes, 279.)

The action is to recover possession of a house and lot leased by the plaintiff to the defendant Nichols. The plaintiff, through his agent, John B. Ireland, executed a lease to defendant Nichols, of the premises in question, situate on Eight avenue, in the city of New York, for seven years from May 1st, 1861.

<p>In an action brought upon an account for work, labor and materials, the complaint alleged the amount of the account to be $541.90, and that there was a balance due, after deducting all payments, of $175.75,—Held, that the complaint admitted a payment of $366.15, and that defendant was not precluded from insisting upon this admission, by disputing the correctness of the items of the account.</p> <p>A court or referee is presumed to have knowledge of the contents of the pleadings in a cause, and it is not necessary for a party to read them in evidence, in order to avail himself of admissions therein.</p> <p>After a trial was commenced before a referee, and a portion of the evidence taken, an adjournment was granted upon plaintiff’s motion, in order to enable him to apply to the court for leave to serve a reply to defendant’s counter-claim; permission was obtained and reply served. Upon the adjourned day the plaintiff insisted that the trial should be commenced novo ; this the referee refused to do,—Held, no error.</p>

Arpead from a judgment of the General Term of the seventh judicial district, affirming a judgment entered in Wayne county in favor of plaintiff upon the report of a referee. The action was brought to recover- $1,500 on a policy of insurance, of which $750 was on a frame building occupied as a woolen factory, and $750 on the machinery in it, burned at Red Creek, Wayne county, New York, on the 29th of November, 1866.

The complaint in this action contained two counts, one for false imprisonment, the other for libel. Upon the first count plaintiff was nonsuited upon the trial. The alleged libel consisted of an agreement signed by the defendants, kept by one of them, and shown to no one else, save to Anderson, one of the firm of Smith & Anderson, agents of William Kirk, an alien, and having full charge and complete control of all his business affairs here.

The action was brought to recover the possession of two cows, seized by defendant while trespassing upon his premises in the town of Stockbridge, Madison county. Defendant justified under chapter 814, Laws of 1867, amending chapter 459, Laws of 1862. Defendant seized and took into his possession one cow, while trespassing on his premises, July 8th, 1868. He made complaint upon the same day; the justice issued his summons on the 10th.

(Reported below, 56 Barb., 559.) Plaintiff entered into a written contract with the city of Brooklyn on the 13th day of April, 1865, for grading and paving ¡Ninth avenue, in the city of Brooklyn, from Twelfth street to the Greenwood cemetery. The work was advertised by the city under the charter, and bids invited for the work, according to the profile map on file in the street commissioner’s office.

Motion to vacate order dismissing appeal for non-service of papers. The excuse offered was that the return had not been made and filed.

Action to recover the damages sustained by the plaintiff, for the alleged unauthorized sale of certain shares of stock, and the loss of profits and gains, which the plaintiff would have made upon the same, and the dividends accruing thereon, and for an account of stocks purchased by the defendants for the plaintiff.

The complaint in this action alleges, that plaintiff lent to Henry B. Burt $518.60, to secure the payment of which Burt procured a policy of insurance on his life for $1,000, payable to the defendant. That on the day of his death, Burt directed the defendant to pay the plaintiff so much of the insurance money, as would be sufficient to pay her debt against Burt. That defendant then promised Burt that he would so pay the plaintiff.

The action is brought to recover the value of 630 barrels of apples shipped by plaintiff upon defendant’s boat, to be transported to the city of New York. The defendant agreed to deliver the apples uninjured by frost, and, if frozen, to pay the damages. The contract was made between John H. Crane, agent of plaintiff, and the defendant. The apples were shipped November 16th, 1867. The apples were frozen when the boat arrived at Syracuse.

The action was for an alleged breach of contract. The plaintiff was a builder, with his place of business in Fortieth street, Rew York city. The defendants were merchants at 82 Dey street. In September, 1865, the defendants furnished the plaintiff with specifications, for fitting up a suit of offices at 57 Broadway, and requested him to make an estimate of the cost of doing the work.

- Error to the General Term of the Supreme Court in the first department to review judgment, affirming judgment of the Court of General Sessions in and for the county of Hew York, convicting the plaintiff in error upon an indictment for false pretences.

(Reported below, 3 Lansing, 394; 10 Abb. Pr. U. S., 200.) A mandamus was applied for, to compel the defendant to file a certain certificate, for the incorporation of the “ Mutual Reliance Society,” on the claim, that it was within the “ Act for the incorporation of benevolent, charitable, scientific and missionary societies,” passed 12th April, 1848, and the acts amendatory thereof.

<p>Appeal from the judgment of the General Term of the Supreme Court of the first judicial district, affirming a judgment in favor of plaintiff entered upon the verdict of a jury-</p> <p>The action is brought to recover for three horses alleged to have been fraudulently converted by defendant. The jury found the fraud, and gave a verdict fop the highest valuation of the horses. Upon the trial, plaintiff called defendant’s wife as a witness, who swore that she never saw one of the horses, a pony; subsequently he proved by another witness, that defendant said his wife, had been riding the pony for about a year in Brooklyn. This, was objected to by defendant upon the ground, that plaintiff could not contradict his own witness. Objection overruled and exception.</p> <p>One of plaintiff’s witnesses, upon his examination in chief, testified, that he,never heard defendant say anything about having sold the pony; the same witness was subsequently recalled, and was again asked if he had ever heard defendant say anything about having sold the pony. Defendant objected generally. Objection, overruled and exception. Witness answered that defendant stated that he sold him for $400. Defendant moved for a nonsuit which was denied.</p> <p>There was no evidence to sustain the complaint, and the refusal to nonsuit was error. (Deyo v. N. Y. C. R. R., 34 N. Y., 9,13 ; Fellows v. Northrup, 39 N. Y., 117, 119.) One cannot rescind without tendering back what he has received. (Stevens v. Hyde, 32 Barb., 171, and cases cited; Matteawan Co. v. Bentley, 13 Barb., 641; Fisher v. Conant, 3 E. D. Smith, 199; Rosenbaum v. Gunter, id., 203; Goelth v. White, 35 Barb., 76; Nichols v. Michael, 23 N. Y., 264, 267, 272, and cases cited; King v. Fitch, 1 Keyes, 432, 452, and cases cited.) The verdict should be set aside as against evidence. 1 (McDonald v. Walter, 40 N. Y., 551, 553; Lomer v. Meeker, 25 N. Y., 361.) The damages were excessive; the rule of damages is a fair question of law, and as such cognizable by this court. (McDonald v. Walter, 40 N. Y., 551, 553; Sedgwick on Dam., 5th ed., 545.)</p>

<p>A dispute having arisen between plaintiff, defendant, and others, in regard to the location of the boundary lines of a lot of land owned by defendant, an agreement in writing to compromise and settle the same was entered into by all the parties, one provision of which was that M. should go upon the land and designate the line between plaintiff and defendant, as the same existed when M.’s father occupied the lot. Defendant offered proof of revocation upon his part of H.’s authority to locate the line, and also proof of actual location of the line, both of which were rejected.</p> <p>Held, that the agreement was a valid and binding one, and fixed as the true line between the parties, the one that existed and was recognized when H.’s father occupied the premises, and left only .the question to be determined as to the location of that line. But that H. was simply empowered to act as arbitrator upon this question, and as such his power was revocable. That the question should have been submitted to the jury to determine the location of the line, and that the rejection of the testimony, both as to revocation and location, was error.</p>

This is an action for wrongful conversion of plaintiff’s horse, which had been intrusted to defendant to keep and care for. Answer admits defendant took the horse to keep for compensation, and interposes a general denial of the remainder of the complaint; and by leave of court subsequently set up the plea of a former suit in bar.

<p>Appeal from judgment of the General Term of the Supreme Court of the eighth judicial district, affirming a judgment entered on the report of a referee in favor of defendants.</p> <p>The action is to obtain a judgment declaring a deed executed by Elbridge G. Spaulding to the defendant, Lydia C. Grant, to be a mortgage.</p> <p>The plaintiff resides in the county of Onondaga, and the defendants reside in the city of Buffalo. The interest conveyed by the deed in question is a leasehold interest. The premises described in the deed are situated in the city of Buffalo, and for a number of years had been occupied under a lease from Hr. Spaulding by Milo W. Hill, a brother of the plaintiff. Before the deed was executed a negotiation relative to the purchase of the premises was had between Milo W. Hill and Mr. Spaulding.</p> <p>The referee found that the defendant, Lydia 0. Grant purchased the premises of Mr. Spaulding, on a proposition made by him to her, to wit, to pay $1,000 on the delivery of the deed, and give her bond, secured by a mortgage on the premises, conditioned to pay another $1,000-, with interest, on the first of May following, and the remaining $3,000 in three equal annual installments, with interest semi-annually; and stated to Milo W. Hill, “ if he should by the first day of May then next, pay to her the $1,000 and interest she paid to Mr. Spaulding, and pay to Mr. Spaulding also the sum of $1,000, to become due on her bond and mortgage, on the- first day of May, that then she would convey the property to him.”</p> <p>The referee further found that the defendant, Lydia O. Grant, performed her agreement with Mr. Spaulding, but neither the plaintiff nor his brother Milo agreed with her to purchase and pay for the property on any terms; and that they, under the privilege she extended to Milo W. till the first of May, neither paid nor offered to pay either to Mrs. Grant the sum of $1,000 paid by her to Mr.. Spalding, nor to Mr. Spaulding the $1,000, which became payable on the first day of May, on the bond and mortgage given by Mrs. Grant to Mr. Spaulding.</p> <p>The referee found that Milo W. Hill abandoned the expectation of purchasing the property; and instead thereof, he-in May, 1865, took a lease from Mrs. Grant of some rooms, in the second story of the building on the premises, which are described in the lease, as the same which had been lately purchased from Mr. Spaulding by Mrs. Grant.</p> <p>The referee dismissed the plaintiff’s complaint-</p> <p>If the deed was intended as between the parties to- this action, as a security for a loan, it will be decreed a mortgage, and parol evidence is admissible to show the intent. (2 Cow. Rep., 324; 19 Wend,, 518; 9 Wend., 227; 1 Paige Ch., 202; id., 48; 5 Paige Ch., 9; 4 John Ch. Repts., 178-218; 1 Sandford’s Oh., 56; 4 Kent Comm., p. 172, Marg. p. 143 ; 8 Paige, 243, and note at bottom, 2d ed., and cases cited; also see 8 N. Y. Rep., 416 ; 15 N. Y., Rep., 374; Morris v. Nixon, 1 How., 118; 34 N. Y., 315; Kellum v. Smith, 33 Penn., 158; Patterson v. Welling, 3 Dallas, 506; 4 Kent, 141; 25 N. Y., 598.) An implied or resulting trust was created in favor of plaintiff, and she will be compelled to convey. (Ryan, et al. v. Day, 34 N. Y., 307; 29 N. Y., 598.) Such a trust is not affected by the Revised Statutes. (2 R. S., 134, § 67; Astor v. L'Amoreaux, 4 Sand., 529.) In cases of fraud, courts of equity will relieve. (Jenkins v. Eldridge, 3 Story, 181.) Once a trust always a trust. (Van Dusen v. Worrell, 1 Irwin’s Appeals, 224; In re Greenfield)s Estate, 14 Pa., 489.) Plaintiff is entitled to specific performance, because there has been a part performance. (Fry on Spec. Per., 130-180; Smith v. Onderdonk, 1 Sand., 479; Moore et al. v. Smedburgh, 8 Paige, 600; 26 Wend., 288 ; Lowry v. Tew, 3 Barb. Ch., 407; Parkhurst v. Van Cortland, 14 J., 15.)</p> <p>There being evidence tending to sustain findings of referee, they cannot be reviewed in this court. (Ostrander v. Fellows, 39 N. Y., 350; Mason v. Lord, 40 N. Y., 476.)</p>

The facts are sufficiently stated in the opinion. That a Iona fide purchaser for value, from a conditional vendee having possession, gets a good title. (Wyaits v. Green, 36 N. Y., 556; Smith v. Lyon, 1 Seld., 41.) Taking a new note for a debt due is payment of a new and valuable consideration. (Traders’ Bank of Rochester v. Bradner, 43 Barb., 379.) Morgan had no title to the cattle, and could confer none upon the defendant. (Neidig v. Eifln, 18 Abb.

This is an action brought by the Buffalo City Cemetery, for the purpose of having declared null an assessment upon its lands, levied by the defendant, to defray the expenses of a sidewalk, which the city had caused to be constructed on the south side of Worth street, and along lands owned by the plaintiff. In 1868 the common council of the city of Buffalo directed a sidewalk to be laid on the south side of said street, between Main and Mariner streets.

<p>Statutes conferring exemptions from taxation are to be strictly construed. The provision of section 10, of the act providing for the incorporation of rural cemetery associations (Chap. 133 Laws of 1847), which exempts the lands and property of such associations, from “ all public taxes, rates and assessments,” does not apply to a municipal assessment to defray the expenses of a local improvement.</p> <p>Public taxes, rates and assessments are those which are levied for some public or general use or purpose, in which the person assessed has no • direct, immediate and peculiar interest. Those charges and impositions, which are laid directly upon the property in a circumscribed locality, to effect some work of local convenience, beneficial to the property especially assessed for the expense of it, are not public, but are local and private, so far as this statute is concerned.</p>

This action is brought to restrain defendant from opening the gate of plaintiff’s dam, and letting off the accumulated waters. At the village of Laurens, the plaintiff has a cotton factory, propelled by water power derived by means of darning, _ at the factory, a stream which takes its rise in a lake át a point three and a half miles distant; and is also the owner of the land forming the boundaries of the lake and at its outlet.

The action was brought to recover for work done by the plaintiff with his team, in constructing the defendant’s road, under and by virtue of… Held: as matter of law, that a party, who, with his team performed labor at an agreed price for himself and team, could not recover. The plaintiff duly excepted. Section 12 of chapter 140, Laws of 1850, under which this action is brought, reads as follows: “ As often as The provision extends to laborers employed by a sub-contractor.

<p>A contract valid in its inception, becoming void by virtue of its provisions, may be revived by the act of the parties thereto. A condition of forfeiture in a policy of insurance may be waived, and the policy revived after the happening of the event, which works the forfeiture, by any act from which the consent of the underwriters may be inferred.</p> <p>Defendant issued a policy of insurance to L. J. S. upon his dwelling-house. The policy contained a clause, that if the property was sold or transferred, or any change took place in title or possession, without the consent of the company, it would be void. The property was transferred to plaintiff March 4th. The policy was renewed March 21st, and was transferred to plaintiff April 15th, on the same day defendant’s agent consented to the transfer of the policy. L. J. S. remained in possession. During a temporary absence he left the house in charge of B, and it .was destroyed by fire.</p> <p>Held, that the renewal revived the original policy, and continued it with all the virtue which it it would have had for any purpose, if it had not expired. That the consent to the assignment was equivalent to an agreement, to be liable to the assignee upon the policy as a subsisting operative contract, for which agreement the retention of the premium received on the renewal was a good consideration. That there was no change of possession within the meaning of the contract.</p>

This action was for the recovery of $1,000 and interest paid by the plaintiff to the defendants, upon the purchase of an interest in an oil property in Pennsylvania, upon the ground that the purchase had been induced by the false and fraudulent representations of the defendants as to the character, yield, and value of the property. The plaintiff claimed to recover as upon a rescission of the contract and sale.

The action was brought to enforce the specific performance of a contract to convey lands. It was tried at Special Term, and judgment rendered in favor of plaintiff. Upon appeal, this judgment was reversed and the complaint dismissed without costs. Eo judgment was entered upon the order of reversal. The appeal is from a judgment, none has been entered, as an order, it should have directed a new trial.

This action was brought by plaintiff, as receiver of the .¿Etna Insurance Company of Utica, on a promissory note executed by defendants to said company for $500. Said company was duly formed and incorporated by virtue of the act entitled “ An act to provide for the incorporation of insurance companies,” passed April 10, 1849, and said corporation was duly organized under said act, in March, 1851.

Appeal by Elbert S. Kip, and wife, from an order of the General Term of the Supreme Court in the first department, affirming an order made at Special Term, appointing commissioners to appraise lands required by the applicant, the Hew York and Harlem Railroad Company, for the purposes of operating its railroad.

This is an appeal by the plaintiff from a judgment rendered, upon the report of a referee, in favor of the defendant, Spaulding, against the plaintiff, and affirmed at a General Term of the Supreme Court in the second district.

(Reported below, 2 Sweeny, 447.) The action was for a balance of $833.33 due on an adver-. tising contract, claimed to have been made with defendants and one Edward F. Baker as partners. The partnership alone was contested. That was proved on the part of plaintiff by the partnership articles of date 26 June, 1867, and plaintiff rested.

The facts sufficiently appear in the opinion. The only questions to be considered are those of law arising upon the exceptions. (Code, § 272; 34 N. Y., 370; 33 N. Y., 587.) A parol promise to indemnify for an act to be done is valid. (Allaire v. Ouland, 2 John. Ch., 52; Messereau v. Lewis, 25 Wend., 243.) The questions were properly determined by the court and jury.

This action is brought to foreclose a mortgage executed by the defendants, Louisa C. Smith and Emory W. Smith, her husband, to the plaintiffs, and bearing date the 16th day of February, 1857. The mortgage was given to secure an indebtedness from said Emory W. Smith to the plaintiffs.

<p>Appeal from order of the General Term of the Supreme Court of the first judicial district, reversing a judgment entered in favor of plaintiff, and ordering a new trial.</p> <p>The action is brought to recover the value of a box of merchandise, one of twenty-three boxes shipped on board defendant’s steamer at Belfast, Ireland, to be transported to the city of Mew York.</p> <p>The Edinburgh, one of the defendant’s steamers, with a large miscellaneous cargo for different consignees, including the twenty-three cases for the plaintiff, arrived at the port of Mew York on the first of March, 1866. She commenced discharging on the sixth of March, at ten a. m., and continued doing so until six p. m. Resumed on the seventh at seven a. m., and continued until six p. m. On the eighth began at seven a. m., and kept on until two a. m. the next day. On the ninth, from seven a. m. until three and a-half p. m. when, her inward cargo being all discharged, she commenced taking in her return cargo. She sailed again for Liverpool on the tenth.</p> <p>The invoices for the respective consignees were not discharged separately and distinctly, but the goods came out promiscuously and irregularly as they were reached.</p> <p>These cases were landed on a wharf or pier, Ko. 44, Korth river, leased by the defendant, and used by it exclusively. After being landed they were checked by Hr. Hills, acting in behalf of the ship, and also by a custom house officer in attendance, whose duty it was to direct where the goods should be sent, in accordance with the entry previously made, and the permit granted thereon.</p> <p>The cases, including the missing one, had been entered for warehousing, and the bonded warehouse Ko. 286 Water street had been designated as the warehouse to which they should be sent.</p> <p>The defendant had a delivery clerk, whose duty it was to superintend the delivery of all goods to the carman who carried them away from the pier. He occupied a little office outside of the gate, near the wharf. It was his general, if not uniform practice, to take receipts from the master carmen for the goods carted by them and their men as they left the pier.</p> <p>He was furnished by the defendant with printed blank receipts, which he filled in with the marks and numbers of the packages put on the carts, and to these he took the signatures of the master carmen and filed them away. Such a receipt, dated Harch eighth and ninth, for twenty-two of the twenty-three packages he produced on the trial.</p> <p>For the twenty-third case, Ko. 1,609, the case in dispute, he had no receipt.</p> <p>At the close of the testimony the referee was requested by the defendant’s counsel to find as follows:</p> <p>1. That the case of merchandise in the complaint mentioned was discharged at a proper and reasonable time and place, at the city of New York, on due notice, and that such discharge was a full delivery according to law and the usage of the port of New York, as proved, and discharged the defendant from all responsibility therefor, which the referee declined to find, and defendant’s counsel excepted.</p> <p>2. That the said case of merchandise being foreign merchandise, received at this port, entered in bond by the plaintiff, was delivered on the wharf into the hands of the United States authorities, or placed under their custody or control, and that such disposition of such case was a sufficient delivery and discharge of this defendant of its obligations of the contract of carriage, which the referee declined to find, and defendant’s counsel excepted.</p> <p>3. That under the evidence presented, and the law applicable to this case, the defendant was entitled to a report and judgment in its favor, which the referee declined to find, and defendant’s counsel excepted.</p> <p>The referee found in his report, as matter of fact, that the defendant had failed to deliver to the plaintiff the box of merchandise in question, and that it was of the value of $971.88, and he found as a conclusion of law, that the plaintiff was entitled to judgment for the said sum, with interest.</p> <p>To both of these findings defendant excepted.</p> <p>Judgment was duly entered upon said report.</p> <p>The order not stating that the reversal was on questions of fact, only questions of law can be examined. (Code, § 248; Baldwin v. Van Dusen, 37 N. Y., 487; Shibley v. Angle, 37 N. Y., 626.) To relieve carriers from responsibility, notice must be given and a reasonable time for removal. (Richardson v. Goddard, 23 How. U. S., 25; see also Ostrander v. Brown, 15 John., 39; Gibson v. Culver, 17 Wend., 305; Fiske v. Newton, 1 Den., 45; Gatliff v. Bourne, 4 Bing. N. C., 321; Same v. Same, in Excheq. Ch., 3 Man. & Grang., 643; Same v. Same, House of Lords, 11 Clark & Fin., 45; Norway Plains Co. v. Boston and Maine R. R., 1 Grey, 263.)</p> <p>Upon the deposit of goods at the usual wharf or other proper place, and upon reasonable notice of the arriving and unlading, a carrier by water is discharged from responsibility. (The ship Grafton, Admiralty R., 43; Fields v. Peacock, Manuscript Decisions; Kennedy v. Bodge, 1 Bard. D. C., 311; Cope v. Cordova, 1 Rawle. Penn. R., 203; Edwards on Bailments, 532-534; Story on Bailments, §§ 544, 545; Richardson v. Goddard, 23 How. U. S., 28; Angell on Carriers, §§ 310, 311; Northern v. Williams, 6 La., 578; The Norway (reported 12 Law Times, N. S.), 57; Ely v. New Haven Steamboat Co., 53 Barb., 207.) The goods were delivered to the custom-house receivers, and they and not defendant were bound to account for them. (Laws of U. S., of Aug. 6, 1846, vol. 9; U. S. Stat. at Large, 53; Law of March 28, 1854, vol. 10, p. 270; Harris v. Devine, 3 Peters, 292.)</p>

The complaint alleges an indebtedness to plaintiff from the Empire Planing and Molding Mill Company, a corporation organized under the act to authorize the formation of corporations for manufacturing, mining, mechanical, or chemical purposes, passed February 17th, 1848, and the several acts amendatory thereof, and the recovery by plaintiffs of a judgment for such indebtedness against said corporation.

The action is ejectment, brought to recover possession of certain premises, situate in the town of Ellisburgh, in the county of Jefferson. James Emerson died intestate on the 14th day of September, 1864, leaving the plaintiffs, Ira Emerson, Clara Emerson, Carrie Emerson and Katie B. Emerson, Ms only children and heirs-at-law. At the time of Ms death he was the owner in fee of the premises in question. The said children were all infants at the time tMs action was commenced.

The action was brought to recover for goods alleged to have been sold to defendants as partners. The facts pertinent to the question raised on appeal from judgment, are sufficiently stated in opinion. Subsequent to the entry of judgment on the verdict, a motion was made for a new trial on the ground of surprise and newly discovered evidence. The motion was denied with leave to renew. The renewed motion was also denied.

The nature of the action and the facts appearing therein, are set forth in the opinion. In the cases asserting the equity rule that parol evidence is admissible to show a deed absolute on its face is a mortgage, there was no other written agreement defining the rights of the parties presented. (Hodges v. The T. M. and F. Fire Ins.

(Reported below, 57 Barb., 416.) The facts stated in the case are substantially as follows: The defendant, Peter A. Wise, a manufacturer of hay elevators and jacks at Stockbridge, New York, having become insolvent and unable to pay his debts, sold all his stock in trade and real estate and personal property, except such as is exempt from execution, to the defendant, Henry Horton, for the consideration of $10,962.21, that being its full value.

<p>The rule, “ that he who asks equity must do equity,” will be applied where an adverse equity grows out of the controversy before the court, or out of circumstances which the record shows to be a part of its history, or where it is so connected with the cause as to be presented in the pleadings, and proofs, with full opportunity afforded the party thus recriminated, to explain or refute the charges.</p> <p>Defendant’s ancestor conveyed to plaintiff’s grantor certain real estate, on which stood a carding machine and clothing works, and shops; and also granted the privilege of drawing from their dam a sufficient quantity of water “ for the use of said works.” From the time of the grant, and for more than forty years, an open space in front of the mill, which belonged to defendants, had been used for piling and sawing wood for the use of the mill. Plaintiff placed thereon a buzz-saw propelled by the water from defendant’s dam. Defendant thereupon, shut off the water, and plaintiff obtained judgment, enjoining defendants from depriving Mm of the water to wMch he was entitled under Ms deed.</p> <p>Held, that the words used in the grant under wMch. plaintiff held, were to be taken as a measure of quantity, and did not limit the use of the water to the particular machinery specified, and Ms use of the water to propel the buzz-saw did not work a forfeiture of the grant of the right to its use. But that plaintiff was not authorized, in erecting any machinery upon the land in front of Ms mill not necessary for its use as it had been used, and was in the wrong in placing and using the buzz-saw thereon. Judgment, therefore, modified so as to enjoin plaintiff from so using the buzz saw.</p>

The action is brought to restrain defendants, from placing flush boards upon a dam known as the prison dam across the Owasco river, wMch plaintiffs alleged set back water upon their premises above. The plaintiffs are the owners and occupants of a flouring and grist mill on the Owasco river, in the city of Auburn, which mill was erected in 1865.

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial district, affirming a judgment in favor of defendant, entered upon the report of a referee.</p> <p>The action is brought by plaintiff, as assignee of Abiel Stoddard, to redeem certain real estate, alleged to have been conveyed to defendant, as security for the repayment of certain advances made and liabilities incurred by him. The facts are sufficiently set forth in the opinion.</p> <p>The contract of vendor with Abiel Stoddard, vested in the latter the equitable title whic-h the former held as trustee for him. (McKechnie v. Sterling, 48 Barb., 330; Moore v. Burrows, 34 id., 173; Sanders v. Aldrich, 25 id., 70; Rood v. N. Y. and Erie R. R. Co., 18 id., 83; Van Allen v. Humphrey, 15 id., 557; Story’s Eq., §§ 789-792, 1212.) The title taken by defendant was a new mortgage title, and Abiel Stoddard had the right to redeem. (Ryan v. Dox, 34 N. Y. Rep., 307; Murray v. Walker, 31 id., 399; Van Duzen v. Worrell, 3 Keyes, 311; McBurney v. Wellman, 42 Barb., 390; Tibbs v. Morris, 44 id., 139; VanBuren v. Olmstead, 5 Paige, 9; Lane v. Sears, 1 Wend., 433; Sweet v. Mitchell, 15 Wis., 641; Elliott v. Wood, 53 Bar., 285, 302; Ellsworth v. Lockwood, 42 N. Y., 89, 94; Brown v. Jones, 46 Bar., 400; Bucklin v. Bucklin, 1 Keyes, 147; Case v. Carroll, 35 N. Y., 390.) Parol evidence was admissible to show the- deed a mortgage. (Van Duzen v. Worrall, 3 Keyes, 311; Hodges v. Tenn. Ins. Co., 4 Seld., 416; Ryan v. Dox, 34 N. Y., 307; Tibbs v. Morris, 44 Barb., 139; Van Buren v. Olmstead, 5 Paige, 9; Lane v. Sears, 1 Wend., 433; Sweet v. Mitchell, 15 Wis., 641.) The interest of Abiel Stoddard was equitable only, and no seal was necessary to render assignment valid. (Jackson v. Seeley, 16 Johns., 197,199; and see Olcott v. Wood, 14 N. Y., 32; Wadsworth v. Wendell, 5 Johns. Ch., 224; Bissell v. Morgan, 56 Barb., 369, 374.) Nor was assignment void because plaintiff was in possession, claiming to hold adverse to Stoddard. (Borst v. Boyd, 3 Sandf. Ch., 507; Chalmers v. Wright, 7 Rob., 713.) The language of assignment was broad enough to transfer all of Abiel Stoddard’s interest. (Borst v. Boyd, 3 Sandf. Ch., 501, 509; Waldron v. Willard, 17 N. Y., 466; The Oneida Bank v. The Ontario Bank, 21 id., 490; Springsteen v. Samson, 32 id., 703.) The transfer being sufficient as between the parties, defendant cannot question it. (Hooker v. Eagle Bank, 30 N. Y., 83; Nelson v. Eaton, 26 id., 410; Flagg v. Munger, 5 Seld., 483, 492; Clark v. Titcomb, 42 Barb., 122, 124; Nelson v. Edwards, 40 id., 280; Moore v. Burrows, 34 id., 173; Seaman v. Van Rensselaer, 10 id., 81; Will. Eq. Jur., 460; Van Ettan v. Currier, 3 Keyes, 331.) The referee’s conclusions of law are to be reviewed, on the assumption that the facts stated by him are correctly found. (Flora v. Carbeau, 38 N. Y., 111, 113; Fake v. Whipple, 39 Barb., 339, 345; Ward v. Kalbfleish, 21 How., 283-285; Myers v. Betts, 5 Denio, 81; Heeley v. Barnes, 4 id., 73; Tappan v. Butler, 7 Bosw., 481, 487; Bascom v. Smith, 31 N. Y., 595, 605.) Defendant is not entitled to compensation for his services, as he devised the land. (Ireland v. Potter, 25 How., 175; Moore v. Cobb, 1 Johns. Ch., 388.)</p> <p>This court will assume, in support of judgment, that the referee found not only facts stated in report, but all other necessary ones which the evidence tended to prove. ( Valentine v. Conner, 40 N. Y., 254.) The evidence not being in case, the judgment should be affirmed. (Chubbuck v. Vernam, 42 N. Y., 432; Freeman v. Freeman, 43 id., 37.) A party seeking relief in equity must prove the particular agreement alleged. (Philips v. Thompson, 1 Johns. Ch., 131; Willard’s Eq. Jur., 286; Fry, § 287; Wolfe v. Frost, 4 Sandf. Ch., 72.) Equitable jurisdiction is only exercised to prevent fraud and injustice. (Fry, §288; Buckmaster v. Harrop, 7 Ves., 346; Lowry v. Tew, 3 Barb. Ch., 413; Freeman v. Freeman, 43 N. Y., 34.) The referee has found no fraud, and in the absence of evidence, this cannot be disputed. (Lobdell v. Lobdell, 36 N. Y., 330.) Under the statute of uses and trusts, when consideration is paid by one, and with his consent, title is vested in another, no interest vests in the former. (Garfield v. Hatmaker, 15 N. Y., 475; Sturtevant v. Sturtevant, 20 id., 39; Brown v. Cherry, 59 Barb., 628; Loomis v. Loomis, Albany Law Journal of November 4, 1871, to appear in 60 Barb.) If plaintiff’s assignment passed any interest, it was only by way of mortgage, and, as mortgagee, he only has a lien. (Stewart v. Hutchins, 13 Wend., 485.)</p>

The action was brought upon a bond given to discharge a vessel' from an attachment issued in pursuance of chapter 482, Laws of 1862. The case is reported in 48 H. Y., 552, Motion made upon the ground that under the decision in Vose v. Gochroft (44 N. Y., 415), the question as to the constitutionality of the law was waived.

The action was brought to recover the contract price of a number of hogs alleged to have been sold by plaintiff to defendants. On the 1st day of November, 1867, at the city of Buffalo, the plaintiff sold and delivered to the defendants a lot of hogs for the sum of $3,408.07, to be paid on delivery.

This action is brought to recover penalties alleged to have been incurred by defendant, under the provisions of chapter 145, Laws of 1857, in asking and receiving a greater rate of fare than allowed by law from the plaintiff’s intestate.

Appear from order of the General Term of the Superior Court setting aside judgment entered on report of referee, and granting a new trial.

On the 22d August, 1868, Josiah Eich, Jr., a broker, who had received orders from plaintiffs to sell ten casks of prunes, offered them to defendant, for fourteen and seven-eighths cents per pound (currency), thirty days time. Defendants orally agreed to take them. Eich thereupon gave notice to plaintiffs of the sale, and executed and delivered to them the following broker’s contract or bought note: “New York, August 22, 1868. Purchased for account of Messrs.

Plaintiffs were bound to fully complete their part of the contract. (16 Wend, 632; 21 N. Y., 398; 26 N. Y., 217; 17 N. Y., 173; 2 Sweeny, 267.) Plaintiffs having noticed the cause for trial, were precluded from moving for judgment on the answer as frivolous. (Code, § 256; Superior Court, Kellogg v. Baker, 15 Abb., 286; Esmond v. Vanbenschoten, 5 How., 44; Phillips v. Suydam, 6 Abb., 289.) Defendants admit the delivery of the goods and are liable for them. (West v. The Am.

The action was brought to recover the amount of a policy of insurance alleged to have been issued by defendant to plaintiff upon the life of her husband, Daniel W. Thompson. The facts sufficiently appear in the opinion. The policy, was void under the statute against betting and gaming. (2 R. S., 924; 3 Kent’s Com., 8th ed., 448, chap. 656.) Laws of 1866 must be strictly complied with.

<p>In an action for work, and labor and materials furnished in manufacturing certain articles for defendant, the defence was that the articles were not to be paid for, until defendant should collect and receive pay from those to whom he should sell them, and that, in consequence of the unskillful manner of then construction, the articles were defective, and the defendant’s vendees refused to pay therefor.</p> <p>EM, it was not competent for defendant, upon the trial, to show that his vendees claimed damages.</p> <p>The judge charged the jury, that, if they found the agreement was, that defendant might sell on a reasonable term of credit, and he had so sold and that term had expired, then plaintiff could recover, though defendant had not been paid by his vendees: to which defendant excepted.—Reid, exception not well taken.</p>

Actior brought against defendants as trustees of the Simpson Water-proof Manufacturing Company (they having failed to file statement required by law), to recover balance of a draft alleged to have been drawn by said company under an agreement with plaintiffs for credit. Judgment for plaintiffs on trial.