Volume 46 — New York Supreme Court Reports

The action is for alleged fraud in the sale by the defendant to the plaintiff of a quantity of marble, and to recover the damages alleged to have been sustained thereby. The plaintiff had a verdict of $1,150. The defendant’s motion for a new trial having been denied, and judgment entered, he appeals.

Appeal by the defendant from a judgment, entered upon verdict at the Monroe Circuit, and from an order denying a motion for a new trial on a case and exceptions. The action was brought to recover for personal injuries sustained by the plaintiff Amelia Groves, wife of the plaintiff Thomas II. Groves, alleged to have been occasioned by the negligence of the defendant. The plaintiffs recovered a verdict of $19,000.

Motion by the plaintiff for a new trial, on exceptions taken at Erie Circuit and ordered heard at General Term, in the first instance. The action was for slander, for words alleged to have been spoken by the defendant of the plaintiff imputing to the latter a want of knowledge or skill in his profession.

Appeal by the defendant from an order of the Monroe Special Term, vacating a judgment in favor of the defendant and granting a new trial on payment of costs pursuant to the provisions of the Code of Civil Procedure, section 1525.

<p>Appeal from a judgment in favor of tbe defendant, entered on tbe report of a referee.</p>

<p>Discharge of an insolvent from, imprisonment— Oode of Uivil Procedure, sees. 3204, 2208 — no limitation as to time beyond which the fraudulent transfers of a debtor cannot be proved.</p> <p>Upon an application by an insolvent debtor to be discharged from imprisonment the court refused to receive evidence offered by an opposing judgment creditor, relating to the dealings of the debtor and as to the disposition which he had made of his property prior to the time of the entry of the judgment.</p> <p>Held, that it erred in so doing.</p> <p>Section 2204 of the Code of Civil Procedure requires the affidavit, to be annexed to the petition, to state, among other things, that he has not “ at any time or in any manner whatsoever disposed of ” his property; if it be shown that the creditor was injured or defrauded by the transaction alleged to be fraudulent, proof thereof may be given whether such transaction preceeded or followed the recovery of the judgment by such creditor or even the inception of the cause of action on which such judgment was obtained.</p>

<p>Attachment — when it cannot he attacked in a collateral proceeding — mortgage of property to secure payment of a part of the mortgagors debts and in trust to pay other debts — void, when a general assignment containing the same provisions would he.</p> <p>This action was brought to recover damages for the conversion of personal property after the same had been levied upon by the plaintiff, a sheriff, under an attachment issued in an action against one Morrison. The defendant after the levy sold the property under a chattel mortgage given to him by Morrison previous to such levy. The defendant attacked the attachment on the ground of the insufficiency of the affidavits on which it was granted.</p> <p>Held, that as the court Jiad obtained jurisdiction over Morrison, and he had not moved to set aside the attachment, the defendant in this action could not contest its validity.</p> <p>October 20,1883, the defendant and Morrison, who was then insolvent, entered into a written agreement which recited that Morrison was indebted to the defendant in the sum of $98.). 79, and also to other persons in a large amount; that he was the owner of unincumbered personal property of the value of at least $2,500, and that he desired to obtain from the defendant an additional loan of $1,200. It then provided that Morrison should execute and deliver to the defendant his notes to the amount of $2,400, and secure their payment by a chattel mortgage upon all the goods and chattels then owned by him, and that the defendant should cancel the notes of Morrison then held by him, advance to him $600 within twenty days, and assume and pay such notes and accounts then owing by Morrison to other parties, as Morrison should thereafter direct, to the amount of $619.21.</p> <p>It was further agreed that Morrison, as the agent of the defendant, should be allowed to sell the said goods and chattels at public vendue, at a credit of not to exoeed one year, at such time before the first of the next April as should suit the convenience of Morrison, and that the defendant should personally receive and receipt for all cash payments and notes taken at the sale and retain the same to the amount of the $2,400 notes and pay over any surplus that might remain to Morrison; the defendant being allowed $200 for services to be rendered by him in the premises. The chattel mortgage, which made no reference to the agreement, was filed on November 3, 1883, but the agreement was not, and the plaintiff had no notice of it when the levy was made on November 20, 1883.</p> <p>At the time of the execution of the agreement and mortgage Morrison was indebted to the plaintiff for the rent of a farm, to recover which the action was brought in which the attachment was issued.</p> <p>Held, tiiat the agreement and mortgage, when read together, showed an intent to hinder, delay and defraud the creditors of Morrison, which rendered them void That as Morrison was at the time insolvent, and as the property was mortgaged not only for the payment of the debt due to the defendant, but also for the debts due to others of his creditors, it was to be treated as a general assignment, and that as such it was void by reason of the following provisions contained in the agreement, viz.:</p> <p>(1.) The provision authorizing the debtor to designate such of his creditors as should be paid by the mortgagee, thus enabling the debtor to create preferences subsequently to the transfor of the property.</p> <p>(2.) The provision securing to Morrison the surplus which would remain after paying the debts due to the defendant, and the creditors to be designated by Morrison, without making any provision for his other creditors.</p> <p>(3.) The provision authorizing the mortgagor to sell the mortgaged property at public auction, at such time before the first of April then next as would suit his convenience, as it gave to the mortgagor, by implication, the right to the possession of the property until such time, within the limit prescribed, as he should see fit to sell the same.</p>

<p>Appeal from an order of the Monroe County Special Term, denying the defendant’s motion for a new trial on a case.</p>

Motion by the plaintiff for a new trial, on exceptions taken at the Orleans County Circuit, and ordered to be heard at the General Term in the first instance.

<p>Agreement that damages shall be fixed, by arbitration — when it does not pretent an action being brovght.</p> <p>In November, 1874, the parties to this action entered into an agreement in writing, whereby the plaintiff granted to the defendant a right of way across his farm, for the purpose of laying water pipes, fur the use of the water-works of the defendant, at a price agreed upon as compensation for such right of way. By the agreement the defendant obligated itself to pay to the plaintiff a fair and just compensation for any damage that may accrue to the said party of the first part, his heirs or assigns, by the breaking, bursting or leakage of said water pipes, or any of them, or from any other cause. It further provided that “'all compensation and damages, herein contemplated, that may accrue, aside from the amount herein above expressed and agreed upon for the above grant, provided the parties cannot agree upon the amount, shall be appraised and fixed by two disinterested persons,” etc.</p> <p>Held, that the agreement to arbitrate constituted no defense to an action brought by the plaintiff to recover damages caused by the leakage of the pipes.</p>

<p>.Appeal from a judgment in faver of the plaintiff, entered upon a decision of the Monroe County Special Term.</p>

<p>Appeal by Angus McDonald, late receiver of tlie Mutual Benefit Associates, the defendant, from an order of the Monroe Special Term, so far as it fixed the amount of bis commissions as such receiver.</p>

<p>Appeal by certain creditors of the defendant Donald Gordon from so much of the judgment, entered upon the decision of the Monroe Special Term, as adjudges that the defendant Wollf, as receiver, etc., shall first pay the judgments of the plaintiffs and Cooper & Co., and that until they ax’e paid nothing shall be paid out of this fund upon the judgments of the appellants. The action is in the nature of a creditor’s bill, and was commenced on the 26th day of Januaiy, 18S4, to set aside as fraudulent as against the creditors of Gordon a general assignment made by him to the defendant Wollf, December 20, 1883. In the title of the action in both the summons and the complaint following, the names of the persons composing the firm of Horace B. Claflin & Co. is added “ in behalf of themselves and all other judgment-creditors of Donald Gordon, similarly situated, who shall hei*eafter join in this action.” And the introduction of the complaint is: “ The plaintiffs appealing * * * and complaining on behalf of themselves and all other judgment-creditors of the defendant Donald Gordon, whose executions have been returned unsatisfied, and who shall, in due time, eome in and seek x’elief by and contribute to the expenses of this action,” etc. And the prayer for relief, amongst other things, demands judgment “that the assignment be adjudged fraudulent and void as against the plaintiffs and such other judgment-creditors of said defendant Donald Gordon as shall elect to come in and share the expenses of this action.” The action was founded upon a judgment of Claflin & Go. against Goi’don of upwax’ds of $200,000, recovered January 21, 1884, on an indebtedness existing prior to the time of the assignment, execution on which had been issued and returned unsatisfied before the action was commenced. There was a lai-ge number of other ci’editors having claims amounting to about $150,000, most, if not all, of which were preferred by'the assignment. But at the time of the commencement of this action no judgment had been recovered by any of such creditors except Cooper & Co., whose judgment was recovei’ed January 23, 1884, execution on which was returned the day following unsatisfied.</p> <p>Both defendants answered, and after the trial of the issues the court found and determined that the assignment was “ fraudulent and void as against the judgment of the plaintiffs and as against all other judgment-ci'editora who have acquired a lien upon the property of said Gox-don; that the plaintiffs are entitled to be paid the amount of their said judgment or so much thex’eof as the moneys or property applicable thereto will pay; that all creditors of Gordon, who are entitled thereto, may share in the fund in the hands of said Wollf, and that it be referred to John S. Morgan, Esq., to take an account,” and an interlocutory judgment to that effect was entered January 14,1885. In March following, the referee made his report by which it appears that the appellants had recovered judgment on their respective claims against Gordon and appeared and made proof of them before the referee, and claimed the right to share with the plaintiffs in the fund. Upon the coming in of this report the court held that the judgments of the plaintiffs and Cooper & Co. were first to be paid, and appointed Wollf receiver, and final judgment was entered accordingly. The appellants having taken exception, appeal from such direction of the judgment for the payment of the fund.</p>

, of Edwin Gilbert, to render an account of the proceeds arising from the sale by him of certain real estate. In April, 1861, Edwin Gilbert died intestate, and in May following letters of administration were issued to Elizabetli O. Gilbert, his widow, and George Thayer, and they, as such administrators, made final settlement of their accounts, and a decree was entered, accordingly by the surrogate in June, 1861.

The action was brought to recover for services alleged to have been performed by the plaintiff for the defendants’ testator, who died during the pendency of the action, and the defendants were substituted as such.

Appeal by the plaintiffs from a judgment of dismissal of the complaint, entered on a decision made at the Monroe Special Term. The action was brought to restrain the continuance, by the defendant, of an alleged nuisance affecting the public health in the town of Brighton, and for damages occasioned by it.

The defendants were copartners and brokers, and as such had a transaction with George W. Wilson, upon whiclÜ the defendants became indebted to him in the sum of $600. The plaintiff in her complaint set out her title to the cause of action, derived as follows : An assignment by Wilson to Davis & Co., and from them to herself.

Appeal by the plaintiffs from a judgment, entered on the decision •of the Ontario Special Term dismissing the complaint on the merits. 'The action was brought to set aside, as fraudulent against creditors, ■an assignment made by the defendant Whedon as survivor of the 'late firm of George M. Whedon & Co., composed of him and .James Benwick.

Appeal by the plaintiff from a judgment, entered in Erie county on the 16th day of November, 1883, in favor of the defendants, upon the decision of Hon. Albert Haight, Justice, before whom the action was tried at Special Term.

Motion by the plaintiffs for a new trial, on exceptions taken at tbe Ontario Circuit and ordered to be heard at the General Term in the first instance.

<p>¡Vendor retaining goods after a sale — Tie cannot sell them, because of the neglect of the vendee to remove them.</p> <p>In this action, brought to recover damages for the conversion of certain hay Snd straw, claimed by the plaintiff as the assignee of one Ely, the defendant pleaded as a defense that he had sold at auction to one Ely, the hay and straw which stood upon his land, and notified him to remove them immediately; that upon his neglect to remove them he again notified him that if they were not removed by a day fixed they would be sold at public auction; that thereafter, and after ■notice had been given by posting notices in public places, the hay and straw were again sold to another person, against the protest of the plaintiff who was present.</p> <p>Meld, that the defendant had no right to sell the hay and straw because of the neglect of the vendee to remove them, and that he was liable as for a conversion thereof for the damages occasioned to the plaintiff.</p>

<p>General assignment — its terms and conditions cannot be subsequently altered by the assignor — he cannot show that a clause was omitted by mutual mistake, as against a judgment creditor attacking the assignment.</p> <p>This action was brought to set aside a general assignment upon the ground that it was fraudulent, in that it required the assignee to return any surplus, that might remain after paying certain creditors named in the assignment, to the assignor, without making any provision for his other general creditors. The defendants offered to show that after the recovery and docket of the plaintiffs’ judgment the assignor executed and delivered to the same assignee another assignment for the benefit of creditors.</p> <p>Held, that the evidence was properly rejected, as the lien acquired by the docket of the plaintiffs’ judgment could not bo affected by any subsequent act of the debtor, and for the further reason that as the first assignment was valid as against the assignor, he was powerless to thereafter change or alter any of its terms or conditions.</p> <p>The defendants also offered to show that the clause directing that the surplus be distributed in payment of the claims of the general creditors was omitted from the assignment through mutual mistak Held, that the evidence was properly rejected.</p>

Motion on the part of the plaintiff for new trial, upon exceptions ordered to be heard at the General Term in the first instance.

<p>Appeal from a judgment in favor of the defendant, entered upon a verdict rendered at the Livingston Circuit, and from an order denying a motion for new trial.</p>

<p>Pleading — a defendant may deny allegations of the complaint upon information and helief— Code of Civil Procedure, secs. 500, 524, 526.</p> <p>Under the provisions of the Code of Civil Procedure a defendant may in his answer deny, upon information and belief, allegations of the complaint when he has no personal knowledge as to the facts alleged, but has information sufficient to induce him to believe that the allegations are not true.</p>

<p>Practice — right to serve an amended complaint — an extension of time is a waiver of the right to object that a complaint is not sufficient to require an answer or demurrer.</p> <p>In this action, brought against the maker and indorser of a promissory note, the complaint, after declaring in the usual form upon the note, stated that the noto •was made and indorsed for the purpose, by such indorsement, of giving credit to the maker and to induce the plaintiff to sell goods, wares and merchandise to him, and that the note was passed to the plaintiff in payment for such goods and merchandise. The defendant having demanded a verified bill of particulars of the merchandise so sold, the plaintiff, within twenty days from the date of the service of the complaint, served an amended complaint leaving out the allegations of the former complaint which stated the consideration for the note and its indorsement.</p> <p>Held, that a motion of the defendants to have the amended complaint set aside, on the ground of its insufficiency,- was properly denied.</p> <p>After the service of the amended complaint the defendants procured an order extending the time to answer or demur thereto, and subsequently procured a stipulation from the plaintiff’s attorney further extending the time to answer the same.</p> <p>Held, that by procuring an order extending the time to answer or demur to the amended complaint, the defendants waived their right to deny that it was sufficient to require an answer or demur.</p> <p>Brooks v. Eanchett (21 R. Y. "Week. Dig., 267) followed. ¡</p>

The action was trover for the conversion of one horse and six watches. The plaintiff recovered and their value was assessed at $160. The defendant claimed title under a sale of the property on a tax warrant, issued to collect a tax assessed upon- the plaintiff’s property.

57 damages. The defendant, a corporation created under the laws of this State, owned and operated a telegraph line between Olean, N. Y., and Bradford, Pa. Hilton & Waugh were brokers and dealers in oil, having offices in Bradford and other places. The plaintiff had transactions with them in buying and selling oil.

Motion by tbe plaintiff for judgment upon a verdict, ordered in bis favor at tlie Cattaraugus Circuit, in an action of ejectment.

85 costs, entered upon a verdict rendered at the Cattaraugus Circuit, aud from an order denying the defendant’s motion for a new trial founded upon the minutes of the trial court. The action was for damages caused by the defendant’s having, as alleged, negligently killed three of the plaintiff’s horses by running over the same with one of its engines.

Motion by tbe plaintiff to set aside a verdict of no cause of action, rendered at the Monroe Circuit by direction of the trial judge. The plaintiff took an exception at the trial and the same was ordered to be heard at the General Term in the first instance. On the 2d day of July, 1883, tbe defendant issued to the plain-, tiff its policy, covering his stock of merchandise in the sum of $1,500, for one year.

The German Banlc, claiming to- be a creditor of the decedent, presented to the Surrogate’s Court of Erie county a petition praying for the sale of the decedent’s real estate for the payment oi his debts.

02 to the petitionei-, George Enger & Co., in preference' to the general creditors of the bank. This bank was organized under the general banking laws of this State, and being insolvent a receiver was appointed of its assets. The other material facts are stated in the opinion. From the above mentioned order the receiver appealed.

<p>Costs — traveling fees of a witness — when allowed from the place of service of the subpoena— copy of stenographer's minutes — when the amount paid for it wiU not be allowed as a disbursement.</p> <p>Upon the trial of this action the plaintiff subpoenaed a witness who was then in the city of New York on business, but whose permanent residence was Rochester. The witness having refused to attend unless paid his statutory traveling fees, as computed from New York, the plaintiff paid him that amount.</p> <p>Held, that in the absence of any evidence to show that the plaintiff had been guilty of negligence in not sooner subpoenaing the witness, the amount so paid was properly taxed, with the costs.</p> <p>The plaintiff procured from the stenographer a copy of his minutes for which he paid forty dollars, which was allowed as a disbursement. The trial judge made a certificate in which he stated that on the trial he desired the stenographer’s minutes to be furnished to the court, and that the stenographer’s fees he taxed as a disbursement.</p> <p>Held, that as it did not appear that the plaintiff’s copy was procured or used for that purpose the item should have been disallowed.</p>

The action was for goods sold and delivered by the plaintiffs to the appellant and his co-defendant Eliza S. Bourne, upon their joint-account and promise to pay for the same. The appellant alone-appeared and answered and admits that the plaintiffs were copartners and denies every other allegation, and pleads payment of their entire demand excepting the sum of $200.

This action was brought upon a negotiable promissory note, made by the defendant for the sum of $500, dated the 21st day of December, 1881, at the city of Buffalo, and made payable at a bank in that place to the order of Peter Herdic. The plaintiff’s evidence tended to show that he purchased the note, before its maturity, in the State of Pennsylvania, paying therefor a valuable consideration.

The action was brought for the alleged publication of libelous matter and slanderous words by the defendan t Jennie E. Collins who became the wife of the defendant Alfred EL Collins, in 1875. She and Dora MeNaugliton had for ten years or more resided in the town of Caledonia, county of Livingston, and been intimate associates and friends. The plaintiff was a lawyer, and became a resident of the town in 1878.

Appeal by the defendants from a judgment, entered on the report of a referee. The action was brought by the plaintiffs’ testator to charge the defendants with the payment of á debt due irom one Robert Smith, who died leaving a will, by which the defendants took an interest in his estate. By his will, which was admitted to probate and recorded, Smith bequeathed to the defendant Jennie MeKelvey , $200, and to the defendant Esther MeKelvey $200 and his bureau.

This action was brought for a wrongful interference by defendant with plaintiff’s easement and right of drawing water from a certain spring on defendant’s land, known as the Kingsbury spring.

The relator is the owner and holder of a mortgage upon certain lands situated in Clinton county, which in 1877 were sold for unpaid taxes for the years 1866 to 1870, inclusive, and a deed therefor was thereafter in due time given by the comptroller to the State, as purchaser. In 1881 the lands were again sold for the unpaid taxes of 1871 to 1876, inclusive, and at the expiration of the time to redeem were again conveyed to the State as required by law.

The action was brought to set aside a warranty deed given to the plaintiff in December, 1873, by the defendant Broadwell, to revive and restore of record a mortgage on the premises conveyed, given to the plaintiff by Broadwell in March, 1870, which plaintiff satisfied when he received the said deed, and to have such mortgage adjudged a prior lien to a mortgage given by Broadwell to the defendants’ testator in January, 1873, subsequent to that of tbe plaintiff, but of record…

<p>Appeal from an order continuing a preliminary injunction granted in this action, which was brought to restrain the defendant from using the plaintiffs name in his signs and advertisements.</p>

<p>Appeal from a judgment of the County Court of Greene county, reversing, with costs, a judgment of a justice of the peace, rendered upon the verdict of a jury in favor of the plaintiff.</p>

The action was brought to restrain the defendant from appropriating the plaintiff’s lands for highway purposes, and from assessing and taking the plaintiff’s property to pay an award alleged to have been illegally made. The temporary injunction was vacated and set aside on the ground that the award was properly made and plaintiff’s lands legally condemned to public use.

The action was brought by the plaintiff, as owner of a canal boat, to recover from the defendant for freight and towage and damages by way of demurrage for delay in unloading the boat. TJpon the trial the plaintiff, to prove the contract of affreightment, introduced in evidence two shipping bills, one signed by the defendant’s agent, which is as follows: “Thomson’s Mill, Saratoga Dam, N. Y., June 9, 1882. “ Shipped by Lemon Thomson on board of canal boat Thos.

<p>Deed — when one of several grantees may he compelled to ha/oe it recorded.</p> <p>This action was brought by one of the grantees in a deed, against the defendant who was also a grantee, to compel him to deliver the deed to the county clerk for record. It appeared that the deed, which was executed and delivered to the defendant in 1873, conveyed to the parties to this action and other grantees different interests in a tract of land ; that the defendant had retained the deed for ten years and had refused to allow it to be recorded. Part, if not all, of the purchase-money had been paid to the grantors. The defendant claimed that the deed had never been delivered ; that he had received it for the purpose of examination, and that he and anotuer of the grantees objected to it. No grounds for the objection were stated.</p> <p>Held, that a judgment requiring the defendant to deliver the deed to the county clerk for record should be affirmed. (Learned, P. J., dissenting.)</p>

The action was in the nature of a bill in equity, for relief from the effect of the following provisions of the Revised Statutes (1 R. S., 741, 742): Seo. 13. If lands be devised to á woman, or a pecuniary or other provision be made for her by will in lieu of her dower, she shall make her election whether she will take the lands so devised or the provision so made, or whether she will be endowed of the lands of her husband. Seo. 14.

<p>Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.</p> <p>The action was one of ejectment to recover lands in the town of Berne, Albany county.</p>

<p>Appeal from a judgment in favor of tbe defendant, entered upon tlie report of a referee.</p>

<p>Sun'ogate — power of, to inquire as to the validity of a transfer from the deceased to his executor.</p> <p>Upon the final accounting of an executor it appeared that the deceased had) some time prior to his death, delivered to his daughter- a note payable to his order, made by her husband, who thereafter became his executor, intending to give the same to his son-in-law, and that the note was destroyed by the son-in-law during the lifetime of the deceased. Upon the hearing the surrogate, upon the application of a general creditor, adjudged the gift of the said note to have been fraudulent and void as to the creditors of the deceased, although valid as between the deceased and the son-in-law, and directed the executor to pay to one of such general creditors a portion of the amount of the note. *</p> <p>Held, that the evidence did not show that the gift was made with any intent on the part of the deceased to hinder or defraud his creditors, and that the same was valid.</p> <p>That the surrogate had no power to inquire into the validity of the transfer and require the executor to account for what he had received thereunder.</p> <p>(Landon, J., dissenting.)</p>

<p>Assessment for local improvement — when objections to the validity of an ordinance changing a grade cannot be raised — when the expense of paving may be assessed against oioners of lots, in pi-oportion to their frontage — ah assessor is not disqualified by being the father of a lot owner — when a railroad using the street need not be assessed.</p> <p>This action was "brought to restrain the sale of certain premises under an assessment for the cost of paving a street in the city of Kingston, under an ordinance requiring that to he done in conformity with a new grade adopted by the common council by another ordinance passed on the same day. The grade had been practically established as fixed by the ordinance for many years, but no record describing it existed. The greatest change made was by increasing the elevation at one point, eighteen inches from which point it gradually declined to, or nearly to the former grade. The pavement to be laid was to be sixteen inches thick. The action was sought to be sustained upon the ground that no petition for a change of grade had been presented to the common council as required by the city charter.</p> <p>Held, that as the plaintiff had failed to show that the amount of the assessment had been increased by the change of grade, or that her interests were injuriously affected by the change, the relief prayed for should be refused.</p> <p>The assessment was apportioned among the lot owners in proportion to the frontage of each lot upon the street. Some of the lots had valuable buildings upon them, others had buildings of inferior value, and many were vacant. The charter required the assessors to assess each lot deemed to be benefited “in proportion to the benefits they deem it to receive.”</p> <p>Held, that the fact that the lots were assessed in proportion to their frontage did not invalidate the assessment.</p> <p>It appeared upon the trial that one of the assessors was the father of the owner of one of the lots assessed, and that the same was then occupied by tbe assessor.</p> <p>Held, that he was not thereby disqualified from acting as an assessor, that the statute (2 R. S., 275, § 2) disqualifying persons from acting in cases in which they are interested only applied to judges of a court and not to administrative officers.</p> <p>The ordinance directing the pavement excepted that portion of the road-way “ occupied by the tracks of ” a railroad company, which were laid for a length of 7,000 feet through the portion of the street to be paved. The railroad company, at the request of the city, agreed to and did adapt its tracks to the new grade and paved between them, and it also agreed to pave to the extremity of its ties, which extended four and one-half inches beyond the track on each side. After it had commenced to pave to the extremity of its ties it was stopped by the city engineer, because it was thought that a better result could be produced by having the work done by the city. The cost of paving to the extremities of the ties was $875. The entire cost of the paving was $27,160.64, of which twenty-five per cent was to he paid hy the city and seventy-five per cent was to be assessed upon the owners benefited.</p> <p>Held, that the fact that no portion of the expense of the .work was imposed upon the railroad company did not invalidate the assessment.</p>

Banker and others, tried before a referee, appointed by the court, by consent of the parties in an action for partition.

<p>Mistake in the description of land, intended to he conveyed — when the equitable rights of a party may he asserted in an action of ejectment — when it is not necessa/ry to first have the deed reformed.</p> <p>The defendant signed and delivered to a railroad company a written agreement by which he agreed to buy two lots, lying side by side, for the sum of $1,725. The company accepted the instrument and intended to carry out the agreement, but did not sign it. Thereafter the defendant orally agreed with the plaintiff to sell to him the westerly one of the two lots for the sum of $800, the plaintiff to pay that sum to the company and receive his deed from it. Thereafter the company, at the request of the defendant, delivered a deed of the westerly lot to the plaintiff on the receipt of $800, and one to the defendant of the easterly lot on receipt of $925. The parties entered into possession of the lots and built a fence upon the line as fixed by their oral agreement. Subsequently it appeared that by an error in the deeds executed by the company, the division line had been so located as to convey more land to the plaintifE and less land to the defendant than was intended. The defendant did not notice the mistake when he received his deed, and the plaintiff either did not notice it, or else was silent with respect to it.</p> <p>In this action of ejectment, brought to recover the possession of this strip of land from the defendant, the court directed the jury to find a verdict for the plain tiff, holding that even if the facts were as stated they constituted no defense.</p> <p>Held, that this was error.</p> <p>That although the legal title to the strip was vested in the plaintiff, yet the defendant was equitably entitled to be relieved from the effect of the mistake, and to be placed in the same position as it was intended that he should occupy-under the oral agreement made with the plaintiff</p> <p>That it was not necessary to reform the deeds in order to do justice between the parties.</p> <p>That the same state of facts which would entitle the defendant to a reformation of the deed would establish his equitable right to the possession of the land, and would as effectually defeat an action of ejectment as would the legal title.</p> <p>That the case should be determined upon much the same principles as would govern if the defendant had brought his action against the railroad company and the plaintiff to have the deeds reformed, so as to give to the purpose of the parties that effect, which, whether resting in parol or otherwise, they intended to accomplish by the deeds.</p>

The relator, pursuant to an order of the Special Term, published in his newspaper the official notices of the appointments of the several terms of the Supreme Court and Courts of Oyer and Terminer and of the General Terms of the Third Judicial District. He presented his bill duly verified to the board of supervisors of Greene county for audit, and that body refused to allow him anything therefor.

<p>Libel — action to restrain the publication of the name of the plamtijf, as a dehnguent debtor — what must be shown in order to obtain a temporary injunction.,</p> <p>In an action brought to restrain the publication of a libel, to the effect that the plaintiff refuses and neglects to pay debts justly due from him, a temporary injunction restraining the publication of the libel during the pendency of the action will not be granted unless the falsity of the charge that the plaintiff is a delinquent debtor who can, but will not pay, be proved.</p>

Tbe action was brought to recover on an account for services as attorneys and counselors-at-law, rendered by tbe plaintiffs to tbe defendant. No question was made as to tbe rendition of tbe services. Tbe defendant’s contention was, that an arrangement existed between the parties which precluded tbe plaintiffs from mating certain of the charges; that certain of tbe charges were excessive ; and that the plaintiffs were not entitled to interest upon the items in dispute.

<p>Discharge of sewage on private property — when the owner cannot claim damages if the sewer was constructed with her assent.</p> <p>This action was brought against the defendant, a village, by the plaintiff to recover damages sustained by her from sewage which entered upon her lot from an old sewer in one of the streets, through a sewer or pipe built on her own land by the defendant with her knowledge and consent, if not at her request.</p> <p>Held, that she could not maintain the action.</p> <p>It seems, that if she did not like to have the sewer remain on her land she could take it up, and thereafter, if any sewage were illegally or improperly thrown upon her land by the agents of the defendant, she could recover the damages which she might sustain therefrom.</p>

<p>Negligence — a person crossing a railroad brack is bound to look only when to do so would benefit him — what instruction to the jmy as to thevr duty to agree is allowable.</p> <p>Upon the trial of this action, brought to recover damages for the negligent kill-' ing of the plaintiff’s intestate while crossing the defendant’s tracks, the defendant’s counsel excepted to so much of the charge as stated that the deceased “ was not bound to look, when looking or gazing would only show him the small amount of seventy feet of the track.” To this the court remarked: “I will say he was not bound, as matter of law, to look, unless you find that by looking he could have seen the train or heard it or known of its approach.”</p> <p>Feld, no error.</p> <p>After the jury had been out for a time they returned into court, when one of them stated that there'was no probable chance of their coming to an agreement. The court thereupon said: “I can’t take any such statement as that, gentlemen; you must get together upon a matter of this kind. No juror ought to remain entirely firm in his own conviction, one way or the other, until he has made up his mind beyond all question that he is necessarily right and the others necessarily wrong.”</p> <p>Feld, no error.</p>

<p>Appeal from a judgment of tbe County Court of Albany county in favor of the plaintiff.</p>

Appeal by the plaintiff from an order denying a motion for a bill of particulars, made by the defendant, in case the plaintiffs should stipulate to stand on the complaint on an account stated and the bill of particulars as served, and ask no amendment authorizing proof of any items antecedent to the date when the balance is claimed to have been struck, and granting the motion in case plaintiffs failed to so stipulate.

Tbe action was brought to recover damages for the loss of the plaintiff’s husband, who was drowned while bathing at Coney Island. The opinion of the General Term reversing the judgment of the court below was delivered at the January term, and is reported in 3S Hun, page 487.

<p>Evidence — when a husband, cannot avail himself of a judgment recovered by his wife against the same defendant for the same accident.</p> <p>This action was brought by the plaintiff to recover damages, claimed to have been sustained by him in respect to payments for medicines, medical expenses, etc., for his wife which were rendered necessary because of injuries resulting from the negligence of the defendant’s driver. Upon the trial the court refused to allow the defeiidant to call witnesses to disprove the negligence of which he was accused, upon the ground that the plaintiff’s wife had previously recovered damages against the defendant for the same accident.</p> <p>Eeld, error ; that the former judgment was neither an estoppel in favor of the plaintiff, nor was it conclusive on the subject of the defendant’s negligence.</p>

<p>Appeal from an order denying a motion to continue an injunction and vacating the injunction previously granted.</p>

<p>Appeal from an order made at a Special Term appointing commissioners to ascertain and appraise the compensation to be made to the mayor, aldermen and commonalty of the city of New York, under chapter 261 of the Laws of 1884.</p>

<p>Appeal from a judgment in favor of the defendant on his counterclaim, entered on a verdict rendered at the New Tork Circuit, and from an order denying a motion for a new trial, made on the minutes of the justice before whom the action was tried.</p>

<p>Contract for the sale of goods — when the delivery is complete upon the loading of the goods on the vessel — when testimony is not admissible to aid in construing a contract.</p> <p>This action was brought to recover the difference between the price at which the plaintiffs, residing in London, had sold to the defendant, residing in New York, 500 bags of cocoa, and the amount realized upon its sale, after the defendant’s refusal to receive it upon its arrival in New York. The contract, which was made by a broker, read as follows:</p> <p>New York, January 3, 1882.</p> <p>Sold por Account op Mee, Billings & Co., London.</p> <p>To James McNider:</p> <p>Five hundred (500) hags prime fermented Bahia cocoa, at 59s. per cwt., C. F & I., by steamer to New York, buyers to forward cable credit or to pay banker’s commission.</p> <p>ARTHUR KYTE, Broker.</p> <p>It was proved upon the trial that the letters O. F. and I. were the initial letters of the words “ cost, freight and insurance.’’ The defendant refused to receive the cocoa upon the ground that it had been damaged by salt water.</p> <p>Held, that the plaintiffs’ contract was performed when cocoa, of the kind and quality and amount specified in the contract, was delivered on hoard of the steamer at London, and that thereafter it was at the risk of the purchaser.</p> <p>That as the agreement, when considered in the light of the evidence explaining the meaning of the initial letters, and detailing the circumstances under which it was given, was reasonably free from ambiguity or doubt, the court properly rejected evidence offered by the defendant to show how it would be understood by the witnesses whose testimony was thus rejected.</p>

It appeared that the plaintiff, Henry Waterman, had received letters patent from 'the United States for a process of hardening and tempering wire. He assigned his right, title and interest, derived from such letters, to Charles M. Keller, in I860. The assignment to Keller was in fact in trust to enable him to grant licenses to persons desirous of using the invention, and to collect royalties for such use and pay them over to the plaintiff Waterman.

This action was brought against the defendant to recover damages for the conversion of a certain certificate of mining stock. The issues were referred in July, 1883, to Wm. J. Kane, Esq., as referee to hear and determine. The issues were finally submitted to the referee January fifteenth .and decided February 24, 1885.

This action was brought in 1880 to recover damages for a breach of a verbal warranty or guaranty made by defendant’s intestate upon a sale to plaintiff of two oil wells and fixtures, situate at Tidioute, Warren county, Pennsylvania. The. defendant by answer denied the making of the verbal warranty. The case was first tried at the Delaware June Circuit of 1881, before Mr. Justice Follett and a jury.

16. On the hearing of the motion, “ in the discretion of the presiding judge, it was ordered that such motion and the exceptions taken upon the trial be heard in the first instance at the General Term.” The plaintiff in his complaint alleges that the town of Sidney is one of the towns of the county of Delaware and State of New York.

The action was brought to recover against tlie defendant as tbe indorser of a note set out in the complaint, which had been indorsed by the defendant and delivered to John J. Pritchard, the husband of plaintiff. It was alleged that the husband in August, 1876, before the note fell due, gave the same and transferred and delivered it to the plaintiff.

The action was brought to compel a specific performance of an agreement to make, execute and deliver to tbe plaintiff a lease for one year, with tbe privilege to tbe plaintiff of occupying tbe premises another year at bis option upon tbe same terms and conditions named and stated for tbe first year. This action was commenced in December, 1883. The plaintiff was then in possession of the demised premises.

The action was brought to recover damages for injuries sustained by the plaintiff on the 28th of December, 1878, while in the employ of the defendant, by the sudden movement of an engine' upon which the plaintiff was engaged in making repairs, in the yard of the defendant.

M. Paris, a justice of the peace in the city of Watertown.. The defendant Snell with others, on June 3, 1873, executed and delivered to the plaintiffs the following agreement: “We, the undersigned taxpayers of the town of Orleans, in consideration of the bringing and prosecuting of the.certiorcvri in the ease of the Orleans bonding to the Court of Appeals, whereby it was finally decided that the bonding of said town of Orleans for the Clayton and Theresa Railroad was illegal…

James Lynch was the owner of two shares of stock (each of the par Value of $1,000) in the Salina Solar Coarse Salt Company, held under certificate No. 64, which he specifically bequeathed to the plaintiff, to draw the income arising therefrom during her life, with power to dispose of the shares to take effect at her death. The will directed the executors to retain the shares ■ during plaintiff’s life, and pay the dividends to her.

<p>Practice — attachment — the affidavit may be made by the plaintiff’s attorney — facts are presumed to be within his personal knowledge — when a deposition of a defendant in another action may be used instead of his affidavit — when the affidavits are sufficient.</p> <p>An affidavit made by tbe agent or attorney of a plaintiff will support an attachment, if it proves the necessary facts.</p> <p>Statements, in the affidavits will be presumed to have been made on personal knowledge, unless stated to be on information, or unless it appears affirmatively or by 'fair inference that they could not have been or were not made on such knowledge.</p> <p>Upon an application for an attachment in an action to recover the price of goods sold to the defendants who were claimed to be liable as partners, a copy of the deposition of one of the defendants, made in proceedings supplementary to execution instituted in another action, was annexed to the affidavit made by the plaintiffs’ attorney, in which the failure to use an original affidavit was excused by a statement that the defendant making the said deposition had refused to make an affidavit in other cases.</p> <p>Held, that the copy of the deposition was properly received and considered by the court.</p> <p>The facts stated in the moving papers considered, and held to sufficiently establish that the plaintiffs were entitled to recover the sum claimed, over and above all counter-claims known to them.</p>

August 26,1842, Daniel A. Burrows died seized in fee of a farm, which he devised for the use of his widow and children until his youngest son became of age (which was in 1856), then an undivided one-third to his widow (this plaintiff) and an undivided two-thirds to his two sons., Ezra S. Burrows and Avery P. Burrows, to be equally divided between them. The will was not admitted to probate until October 11, 1881.

This action was brought to recover damages for injuries suffered by the plaintiff in consequence of having been butted and knocked down by a ram belonging to the defendant.

<p>Policy of insurance against fire — when the premises are not vacant or unoccupied within the meaning cf it.</p> <p>In this action, brought upon a policy of insurance to recover the value of furniture and other property destroyed by fire, the defendant claimed that the policy had been invalidated by reason of the premises having become vacant or unoccupied in violation of a condition of the policy. The evidence showed that the plaintiff and her husband and family occupied the premises as a dwelling-house; that a week or two before the fire they left the house to visit friends, leaving no one there; that during that time the husband came back and stayed in the house over night on two occasions; that he and a Mr. Gray stayed there on the night of the fire. All the furniture was left in the house. When leaving the house the plaintiff took a satchel, a night dress for herself and one shirt for her boy, all the rest of her clothes were left in the house.</p> <p>Held, that the house was not “vacant or unoccupied” within the meaning of those terms as used in the policy.</p>

<p>Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury at tbe Onondaga circuit, and from an order denying a motion for a new trial made .upon tbe minutes of tbe justice before whom the action was tried.</p>

<p>Right to talce water from a spring — no prescriptive rights acquired by a user under a license.</p> <p>This action was brought to restrain the defendant from cutting off or in any manner interfering with a pipe which conducted water from a spring upon lands formerly owned by one Crippen. It appeared that in 1837 one Caryl, under whom the plaintiff claimed title, obtained from Crippen a parol license to talce and use water from the spring in question, under which he constructed a ditch and laid a pipe which supplied his house with water. In 1839 Crippen conveyed to one La Moure, a lot of ground not far from the spring, and granted to him, and his heirs and assigns, the privilege to bring water from the spring in question sufficient to fill a three-fourths-inch hole for the sum of ten dollars. Thereafter La Moure extended the pipe constructed by Caryl, to his (La Moure’s) premises, and inserted in it a plug which allowed the water remain- ' ing, after La Moure had been supplied, to flow to Caryl’s houses. In 1880 the supply diminished," and being less than was required to fill a pipe of the size 'specified, the defendant, La Moure’s grantee, tapped the pipe in such wise as to prevent any of the water from flowing to the plaintiff’s house and used it for his own purposes.</p> <p>Held, that he was entitled to do so.</p> <p>That as the plaintiff’s grantee acquired the right to talce the water by the license and consent of the owner, no prescriptive right was acquired by the continuance of its use.</p>

The respondent was incorporated under the provisions of chapter 737 of the Laws of 1873, amended by chapter 213 of the Laws of 1881, for the purpose of supplying the village of Stamford, in Delaware county, with pure and wholesome water. To carry out this purpose it purchased two acres of land about two miles from the village, situate in Schoharie county, across which a stream flowed.

01, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried. The action was brought to recover damages for injuries received by the plaintiff, who was struck by a bridge on the defendant’s road near the village of Norwich, Chenango county, N. Y., while in its employ as a brakeman.

<p>Undertaking on appeal — wken void as a statutory obligation, it may be sustained as a common-law agreement — general assignment — the title vests m the assignee upon its execution, delivery and record.</p> <p>January 28, 1881, one Winters made a general assignment to one Webb, which was, after being duly executed by both parties, recorded. February twelfth, an inventory was filed and an order was made requiring the assignee to give a bond, with which he failed to comply. February twenty-eighth, Webb obtained a judgment against Winters upon which he issued an execution under which he caused all the personal property which belonged to Winters at the time of the assignment to be sold. . The property, which had remained in the possession of Winters until the time of the sale, was struck off to Weob for $255. Webb thereafter appealed to the General Term from an order which removed him as assignee, because of his failure to give a bond and directed him to pay over to his successor all the property which had come into his hands or under his control as assignee under the assignment.</p> <p>Upon the filing of an undertaking given in the form prescribed by section 1327 of the Code of Civil Procedure, to pay the sum recovered or directed to be paid by the order, instead of in that prescribed by sections 1328,1329, to obey the directions of the appellate court, an order staying proceedings pending the appeal was procured.</p> <p>In this action brought upon the undertaking by the new assignee, after the affirmance of the said order:</p> <p>Held, that although the undertaking was, as a statutory obligation, invalid, yet as Webb had by that means obtained a stay of proceedings pending the appeal, it thereby became operative and binding upon the sureties as a common-law agreement.</p> <p>That the claim that no property was under the terms of the order deliverable, because none had come into Webb’s hands as assignee, was not tenable, as the-execution, delivery and recording of the assignment vested the title to all the property of the assignor in Webb, and his failure to give the bond did not divest him of that title or revest the same in Winters.</p> <p>That the plaintifE was entitled to judgment for the value of the property. (Harbin, J., concurred in result.)</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.</p>

85. In 1883 one Benjamin W. Downing was district attorney for the county of Queens.

This action was brought by the plaintiff to recover the sum of $10,000 damages for the loss of services and the expense of caring for a child nine years of age, who, as alleged, fell from a painter’s scaffold and was injured on the 16th of August, 1882. Plaintiff lived in a tenement house at 304 Henry street, Brooklyn. She had three children. The youngest child, the one alleged to have been in jured, was nine years of age.

<p>Appeal from a judgment in favor of the defendants at the Westchester circuit, entered upon an order dismissing the complaint upon the ground that it failed “ to allege that the highway commissioners of either of the defendant towns had funds, or neglected to take any steps to procure them, or in any fact showing negligence in that regard.”</p>

The plaintiff sued the city of Yonkers to recover $20,000 damages-for injuries alleged to have been received by being thrown into' an excavation in one of the streets of the city while driving therein,

<p>Appeal from a judgment in favor' of the defendant Maria Sclilegel, widow of George Sclilegel, entered in Kings county, upon the trial of this action brought to obtain a judicial construction of the will of the said George Sclilegel.</p>

<p>jRemoval of ohstruciions from highways — 1878, chap, 245.</p> <p>Since tlie passage of chapter 215 of 1878, amending sections 103 and 104 of 1 Revised Statutes, 521 and 522, commissioners of highways have authority to compel the removal of all obstructions or encroachments upon a highway, whether the said highway shall have been laid out, ascertained, described and entered of record, or shall not have been recorded but shall have been used as a public highway for twenty years or more.</p>

The action was brought by the plaintiff to establish and enforce her right of way over a strip of land designated as “ Grand street ” on a map of which the following is a copy: . The right of way was claimed over Grand street as laid down on said map from the unnamed street crossing the same to the highway designated on said map as the “New York Post road,” plaintiff also sought to compel the removal of all obstructions to the exercise of such right of way.

The action was in replevin to recover goods which the plaintiff had been induced to sell to the defendant by his false and fraudulent representations.

In substance the complaint charges the defendants with having conspired to dispose of the property of Wertheimer & Iiershfield, for the purpose of cheating and defrauding- the creditors of the last two named defendants. The complaint is divided into a number of causes of action, each being substantially like the other. The first cause of action - alleges that the defendants Wertheimer & Hershfield were copartners in trade.

<p>Notice of pendency of action — a party whose deed was delivered before, but is recorded after, the filing thereof is bound by the judgment — Code of Civil Procedure, sea. 1671.</p> <p>In this action, brought to foreclose a mortgage dated March 23, 1881, the summons was served May 11,1885, and the complaint with a notice of the pendency ■ of the action was filed on May 5, 1885. The defendant, the mórtgagor, while : admitting the making of the mortgage, alleged that he had conveyed the premises in May, 1882, by deed to other persons who 'should be made parties .defendant. -s</p> <p>Held, that- as it appeared that the deed was not recorded until after the filing of the notice of pendency of action, viz., on July 15,1885, the grantees need not be made parties to the action as, though not parties, they would be bound by the judgment entered therein.</p>

The actions were brought by the plaintiffs, who were creditors of the firm of Spruce & Leary, to recover the amount of their respeck ive claims from the defendants who were alleged to have assumed to pay the same by the terms of a judgment, entered in their favor upon the confession of the said firm of Spruce & Leary.

D. Moroe and others, as a board of examiners, to certify the relators to the respondent R. Ii. Poillon, fire commissioner, for promotion to the position of foreman in the fire department, and to compel the fire commissioner to promote the relators in accordance with such certification. Prior to the 29th day of July, 1885, nine vacancies occurred in the position of foreman in the fire department.

■settling issues in this action for trial by a jury. This is an action to foreclose two mortgages. The defense is usury. Upon the first trial the County Court, in which the action was brought, held that one of the mortgages was usurious, and as to that found for the defendant. It found that the other mortgage was not usurious, and as to that found for the plaintiff.

The motion was made upon the affidavit of James K. Frothing-ham, of the city of Brooklyn, the foreman of the jury impanneled to. try the action, which stated, among other things, that “ the trial of said action commenced at the April circuit of this court. Deponent with his fellow jurymen were summoned on the 6th day of April, 1885, and served from said day until the 9th day of May, 1885.

<p>Construction of elevated railroads in city streets —power of the legislature to authoi'ke it to be done for experimental purposes — compensation must be made for the use of the strreet — a franchise or right cannot be given to an individual by a private or local act.</p> <p>Chapter 554 of 1885 amends chapter 489 of 1867, and the acts amendatory thereof, so as to authorize the construction of a new illustrative section of an elevated railway on some duly authorized street in the city of New York, to be not less than one-fourth of a mile in length, and provided with serial traction cables and testing cars of full working size, and to conform to the regulations as to structure and motive power provided in the former acts. It declares that “said section shall be constructed and the said experiments conducted upon the plans and under the direction of Charles T. Harvey, the engineer in charge of constructing the first experimental section hereinbefore mentioned.” It then further provides that the comptroller is authorized to pay a sum equal to one-third of the amount of a fund (paid to the comptroller by the elevated roads referred to in the said acts, being five per cent upon their net income from passenger traffic, as a compensation to the corporation for the use of its streets) — “ forthwith to the order of said engineer, for the purpose of defraying the expenses of experiments as to said motive power now in progress, and for making surveys and other preparations for building said section.”</p> <p>Upon an application for a peremptory mandamus to compel the comptroller to pay over one-third of the said fund to the relator:</p> <p>Held, that conceding the power of the legislature to authorize the construction of a railway in a public street for experimental purposes, and not for public use and traffic, yet this could not be done without making compensation to the persons interested therein for the damages thereby sustained, and that the omission of any such provision from this act rendered it unconstitutional and void.</p> <p>That if it were held that the section of railway which was to be constructed under the act was intended for public use and traffic, then the act was unconstitutional, in that it conferred a franchise or right upon a private individual by a local and private act in violation of the Constitution of the State.</p>

<p>Religious corporation — a negotiable instrument issued by it invalid, unless shown to have been issued by authority of its board of trustees.</p> <p>This action was brought upon a written instrument which certified that the defendant, a religious incorporation formed under chapter 45 of 1863, and • .of ’chapter 60 of 1813, was indebted to Edwin Harlow or order for $500 duly-received from him as a loan, bearing interest at seven per cent per annum, payable semi-annually at a bank therein named. It stated that it was redeemable within two years or sooner at the option of the church. It was dated April 1,1876, and was signed “John Loughlin, President ; Daniel Ross, Secretary; William J. Lane, Treasurer and Pastor of St. Anthony’s Church.”</p> <p>Held, that as the act under which the' defendant was incorporated vested the management of its temporal affairs in a board of five trustees, and as there was no evidence to show that the board of trustees had authorized the issue of the certificate in suit, the defendant was not liable thereunder.</p> <p>'That its liability thereon was not affected by the fact that the three persons signing' the certificate were in fact members of the board of Trustees, and constituted a majority thereof.</p> <p>R seems that in a proper case, for the indebtedness of a religious corporation, the trustees acting as a board, properly organized for that purpose, would be authorized to empower its officers to execute and deliver in its behalf instruments of this description.</p>

<p>Discharge under the two-thirds act — Code of Oivil Procedure, see. 2165 — the provisions of the statute as to the manner of service must be strictly complied with — when parrot evidence to show that the court acquired jurisdiction will not be received.</p> <p>In an action to recover the price of goods sold to the defendants, the latter pleaded a discharge under the provisions of the Code of Oivil Procedure, replacing what was known as the two-thirds act. The plaintiff contested the validity of the discharge upon the ground that it appeared from the order of discharge that the order made by the County Court was, by its terms, to be served upon each of the creditors residing within the United States, by delivery of a copy of said order at least twenty days before the twenty-third day of July, then next, personally, or by depositing said copy at least forty days before that day in the post office, inclosed in a post-paid wrapper addressed to the creditor at “his. place of business,” instead of at “ his usual place of residence,” as required by subdivision 2 of section 2165 of the Code of Civil Procedure, and that it appeared that the order in this case was served by depositing it addressed to the plaintiff at his place of business instead of his usual place of residence, and that the proof presented to the court showed that it had been so served.</p> <p>Held, that as the service was not made in the manner prescribed by the statute, the court did not acquire jurisdiction to grant the discharge.</p> <p>The defendant offered to show that he served the order on the plaintiffs, person. ally, at their place of business and residence twenty days before the return day.</p> <p>ITeU, that the court properly refused to receive the evidence, as where the record fails to show that the court acquired jurisdiction of the person, it cannot be shown by parol evidence that it did in fact obtain jurisdiction.</p>

<p>Relieffund for police department — members of the police force are not compelled to contribute to it —1885, chap. 486.</p> <p>In passing chapter 486 of 1885, entitled “ An act to create a relief fund in tlie police department in all cities in this State having, according to the last census, a population exceeding one million,” it was not the intention of the legislature to compel the members of the police force, against their own will, to contribute to and become beneficiaries of the fund created by the act, but it intended to leave it wholly to each one to determine for himself whether or not he desired to avail himself thereof.</p>

Appeals from two orders of the Special Term. One denying the continuance of the injunction heretofore granted in this action, the other denying a motion for the appointment of a receiver of the fund now in bank, or the deposit of the same in court, etc.

<p>Appeal from a judgment in favor of tbe plaintiff, entered at the New York Circuit upon a verdict directed by the-court.</p>

<p>Taxation of shares in national banks — neither the bank nor its receimer can apply for a reduction in the assessment — the assessments can only be reviewed by certiorari — the party aggrieved must apply to Use assessors for relief before applying to the court.</p> <p>On or about January 1, 1881, the commissioners of taxes and assessments of the city of New York assessed the outstanding stock in the Wall Street Bank to the several individual holders thereof at its par value, and assessed thereon to them, respectively, taxes amounting in the aggregate to $6,189.62. On September 15, 1884, judgment was obtained on behalf of the people of the State dissolving said banking corporation, forfeiting its charter and appointing one Osborn receiver of all its goods and property. Thereafter the receiver applied to the court at Special Term, alleging that an examination of the affairs of the bank had shown that the value of the stock had been so impaired b.y the frauds of the cashier as to make its assessable value not to exceed ten per cent of its par value. After a hearing an order was made reducing the taxes assessed from $6,189.96 to $618.96, directing the receiver to pay that sum to the receiver of taxes in full of all claims against the stockholders for taxes for that year, and that all taxes theretofore collected on such stock should be returned forthwith to the receiver.</p> <p>Held, that the order should be reversed for the reasons:</p> <p>That neither the receiver nor the bank itself had any interest in the question, as the tax was imposed upon the stockholders personally and not upon the bank or the receiver.</p> <p>That the stockholders themselves could not have made such an application, as the proceedings of the commissioners of taxes and assessments, being judicial in their nature, could only be reviewed or questioned in the courts by writ of certiorari prosecuted by the party aggrieved.</p> <p>That the failure of the stockholders to appear before the commissioners at the time appointed by law and establish the true value of the stock, or show other good reasons for a reduction of the assessment, concluded them from subsequently reviewing the action of the commissioners by certiorari or otherwise.</p>

<p>Appeal from an order of the Special Term, denying a motion that the defendant furnish means for the printing of the papers on appeal from the judgment in this case.</p>

<p>Appeal from a judgment in favor of tlie defendant, entered upon a trial at the circuit without a jury.</p>

<p>Appeal from a judgment, entered upon an order sustaining a demurrer interposed to the complaint.</p>

<p>Contract for the sale of merchandize by weight — when the certificate as to the weight, by a person specified in the contract binds the purchaser.</p> <p>In an action, brought upon a promissory note, a counter-claim for damages was interposed by the defendant, founded upon a written agreement by which the plaintiff sold to the defendant ‘‘three hundred to four hundred tons raw kainit, * * * to be shipped in bulk from German ports to the port of New York, during the months of April and May, 1883, at seven dollars and twenty-five cents ($7.25) per ton, of two thousand two hundred and forty American pounds, on foreign invoice weights. Terms cash against German analysis and European weight return on delivery of goods ex-vessel at New York.”</p> <p>It appeared upon the trial that kainit was taken from a mine in Germany which belonged to the government and shipped from aplace called Staasfurt; that the plaintiff had purchased 320 tons of kainit, and paid for that amount through a banking-house; that they understood that amount hadbeen shipped to New Y ork, and had received from the defendant, upon the presentation of the papers specified in the contract, its note for that amount; that upon the arrival of the kainit a shortage of eighty-five tons was discovered, for which the defendant interposed the counter-claim.</p> <p>Witnesses called by the plaintiff testified, without objection or contradiction on the part of the defendant, that they were accustomed to deal in kainit and that the words “ cash against German analysis and European weight return ” meant cash on the presentation of the documents showing the cost of insurance and freight and the quantity shipped.</p> <p>Held, that the counter-claim could not be sustained as the defendant was concluded by the contract from controverting the facts stated in the papers therein specified.</p>

<p> Construction of a policy of marine insurance. </p> <p>This action was brought upon a policy of insurance issued by the defendant to recover for the loss of fifty casks of prunes, forty-seven of which were destroyed by the sinking of a lighter which was conveying them from Hamburg to a steamer which was to convey them to New York. The policy, most of the provisions of which were printed, had written thereon among other provisions, one by which the defendant insured the plaintiffs on account of “ whom it may concern to cover all shipments made under letters of credit issued to them by Brown Bros. & Co..” * * * at and from “ports and places * * * in Europe, generally, to New York and to Atlantic ports in the United States, direct or by port or ports with privilege of transhipment per steamer, sailing vessels and other conveyances, including aU risks of lighterage, one-half (J) interest in dried fruits or other merchandise. Bach kind of goods separately. Dried fruits and other merchandise by steamer to be insured free from particular average unless the vessel be stranded, sunk, burned or in collision."</p> <p>The defendant claimed that the words “ including all risks of lighterage,” when taken in connection with the other italicized words, made the insurance from Hamburg to New York, including the lighterage risk, warranted free from particular average unless the vessel was stranded, etc.</p> <p>Held, tliat this claim was untenable; that a due consideration of these provisions showed that the words “all risks of lighterage” meant any loss, partial or total, by lighterage, while the loss by steamer was limited and to be free from particular average.</p>

<p>Mandamus — not allowed when the party lias a remedy at law for damages —bylaws of a corporation regulating the sale of certificates of membership — right to give a lien thereon, in favor of other members.</p> <p>The relator applied for a mandamus to compel the treasurer of the New York Cotton Exchange to cancel a certificate of membership standing in the name of one Van Meien, and to issue a new certificate to the relator, as the assignee of Van Meien’s share. At the time of the transfer of the share the relator and Van Meien each held a certificate of membership in the corporation. At the time when, the certificate.was offered to be surrendered to the treasurer it was worth the sum of $3,000.</p> <p>Reid, that as the relator was a member of the corporation in good standing, possessing all the immunities pertaining to that relation, and as he had nothing to gain in this proceeding beyond the ability to sell the new certificate as an article of property, his remedy was by action and not by a writ of mandamus.</p> <p>The validity and effect of certain of the by-laws of the New York Cotton Exchange regulating the sale and transfer of their certificates by members, and the enforcement of the lien created thereon in favor of other members of the exchange considered by Daniels, J.</p>

<p>Policy of insurance — assignability of one which is made payable to the children of fhe insured.</p> <p>On November 17,1873, one Samuel W. Canfield assigned to the plaintiffs’ testator, to procure a loan of $3,000, a policy of insurance on tlie tontine savings fund plan, issued to him on October 17,1873, by which the insurance company agreed to pay $35,000 to the children of Canfield, who were named in it, share and share alike, and also agreed upon the completion of the tontine period, provided the policy should not have previously terminated by lapse or death, to give to the legal holder of the policy certain options.</p> <p>Subsequently, and in the year 1877, before the expiration of the tontine period, the policy was assigned by the children named in it, and by the insured to the defendant herein, and possession of it was then given to and has since been retained by him, and all premiums since falling due thereunder have been paid by him. The policy'having become due each of the assignees claimed to be entitled to receive the amount to be paid thereunder.</p> <p>Meld, that the defendant was entitled to receive it.</p>

<p>Conveyance of real estate— liability of a vendor to pay taxes under his covenant— construction of an agreement — meaning of the chwraater “ &c."</p> <p>On August 4,1883, the plaintiff and defendant entered into a contract for the sale f certain real estate to the plaintiff, which provided, among other things, that “the calculations and adjustments of the exact amount to he paid as to rents, interest, etc., shall be made the same as if this contract were actually carried out and performed on September 1, 1883, at twelve M. It is hereby understood and agreed by and between the respective parties hereto that all rents, issues and profits of the respective lands and premises hereby agreed to be conveyed, or of any part or portion thereof, shall be apportioned as of September 1, 1883, so that the seller shall take all such portion of such rents, issues and profits as is for a period prior to, or is earned up to, September 1, 1883, and the remaining portion shall go to the purchaser irrespective of the time when such rents, issues and profits may be due.”</p> <p>On August twenty-third a deed of the premises was delivered which contained a covenant that the premises were, at the time of the delivery of said deed, free, clear, discharged and unincumbered of and from all former and other grants, titles, charges, estates, payments, taxes, assessments and incumbrances of what nature or kind soever, except certain mortgages. On the day of the delivery of the deed an adjustment, so far as related to the gas used upon the premises, the rents, issues and profits, and the premiums paid for the insurance up to-September first, was made. Upon the day of the making of the contract an assessment was made upon the property, but the tax was not confirmed until the twenty-ninth of August.</p> <p>In an action to recover from the defendant the amount of the tax which the plaintiff had been compelled to pay:</p> <p>Held, that as the tax was not a lien upon the property at the time of the delivery of the deed, the defendant was not liable to pay the same by reason of the covenants therein contained.</p> <p>That the taxes were not covered by the agreement as to the adjustment of “rents, interest, etc.,” as they were not expressly specified therein and were not included under the character “ &c.,” as that included only things of the same kind as those before set forth.</p>

<p>Appeal from a judgment recovered on a trial had before the court without a jury at the New York Circuit.</p>

The action was commenced and partly tried in the lifetime of defendant’s testator, and was brought to recover one-third of forty coupon bonds under seal, for $500 each, executed by one Sarah R. Ilaight, sole acting executrix of the last will and testament of Richard IL Haight, deceased, to John A. C. Gray, or bearer, secured by a deed of trust or mortgage of certain leasehold property in the city of New York, together with one-third of any interest theretofore collected by…

Appeal by Hattie W. Bliss from an order denying a motion to •change the referee named in the order of reference in this proceeding.

<p>'Action to restrain the prosecution of another action in the same court — only allowed where full and complete justice cannot be obtained in the first action.</p> <p>An action was brought in this court, in Westchester county, hy Maria L. Hood, as executrix under the will of Andrew Hood, against one John U. Hayward, as surety, and one Frederick Hood, as principal, upon a bond given hy the latter as one of the executors of the said Andrew Hood. That action was brought to recover the amount secured hy the bond, because of a decree of the Surrogate of Westchester county, charging the executor with a misappropriation of the moneys of the estate, to an amount exceeding the sum which could be recovered hy the executrix against the said surety upon the bond.</p> <p>Yhe present appeal was taken from an order granting an injunction in an action brought hy the said John N. Hayward to restrain the prosecution of the former action upon the ground that the prosecution of that action should be ' restrained during the pendency of an appeal which had been taken from the decree of the surrogate. A discharged surety and certain beneficiaries under the will were with said Maria L. Hood made defendants in the present action.</p> <p>Held, that as the action of the executrix on the bond would entirely exhaust the liability of the surety, no necessity existed for bringing in the additional defendants in this suit.</p> <p>-That the order should not have been granted, as the plaintiff could have obtained -full and adequate remedy by applying for a stay of proceedings in the first- ' mentioned action</p>

<p>Evidence — action for breach of contract for personal services — evidence of a refusal of the plaintiff to accept employment offered by his employer after his discharge is admissible in reduction of damages.</p> <p>This action was brought by the plaintiff to recover damages for a breach of a, contract, for his personal services, made with the defendant. The employment commenced on March thirty-first and was to continue for a year, but was in fact terminated by the defendant in July. Upon the trial of this action,, brought after the expiration of the year for which the employment was to last,, the defendant offered, but was not alio wed,, to show that after the plaintiff had been discharged from the defendant’s service, he was directed on the part of the defendant, to go to Panama and refused to do so.</p> <p>Meld, that it was error to exclude the evidence as it was admissible to diminish the damages. (Daniels, J., dissenting.)</p>

<p>Appeal by George II. Forster, J. Montgomery Hare, as executor, etc., Mary II. Hare, Elizabeth O. Hare, J'r., Anna Hare Miller, James M. Hare, Hobart Hare, Charles H. Hare, William Hobart Hare, Hubert Emmett Hare, Chandler Hare and Mary C. Hobart, from an order directing the distribution of surplus moneys.</p>

<p>Appeal from a judgment in favor of the defendant, entered on a trial at Special Term.</p>

<p>Senting of machinery — the lessor is not hound to Jceep it in repair.</p> <p>This action, brought to recover the price agreed to be paid for the hire of a steam engine, boiler and pump, was defended upon the ground that the steam chest of the engine had in some manner broken down and become incapable of operating, and that the plaintiff had refused to repair it.</p> <p>Held, that as there was no express agreement on the part of the plaintiff to keep the machinery in repair, and no representation that it was adapted to any particular purpose or use, the court properly excluded evidence tending to show that it had broken down.</p>

Appeal by Edward C. Ripley, Hattie JÜ. Ripley and Chris. Laurits from an order directing that the affiants, whose affidavits were submitted on behalf of the appealing defendants shall be produced by them and be examined and cross-examined in the order in which they are named, unless the referee in his discretion shall postpone the examination of any affiant for a cause personal to that person.

<p>Appeal from an order adjudging the defendant Edward C. Ripley guilty of a contempt and imposing a fine upon biin of $200, and ten dollars costs of motion.</p>

<p>Authority of an agent — includes the necessary and usual means of effecting the object for which it was given — lien for wharfage — a part may be held for the wharfage on the whole — statute of frauds — what furnishes a new consideration.</p> <p>Upon the trial of this action a verdict was rendered for the plaintiffs for $910 for wharfage upon some COO tons of iron rails, laden upon their wharf for, and which were received by, the defendant. The rails were not placed upon the wharf by the defendant’s direction, nor was the defendant liable for the wharfage. The plaintiffs claimed under a contract made, after all but seventy five tons of the rails had been removed, with an agent of the defendant, by which, upon the plaintiffs consenting to waive their lien upon the seventy-five tons for the wharfage of all the rails and allow the same to be removed, the agent agreed that the defendant would pay the whole sum due; the agent then saying that it was of more importance for them to get the iron through before the canal closed than to dispute the bill.</p> <p>It appeared that the agent had been sent to New York for the purpose of hurry ing forward the rails in all possible ways, and had been instructed to see that there were no delays in shipping them as it was important for the defendant to secure them at once.</p> <p>Reld, that the authority of the agent was sufficient and that his contract was binding upon the defendant.</p> <p>That the plaintiffs’ claim that they were entitled to a lien on the seventy-five tons for the whole wharfage was well founded.</p> <p>Thai the agreement was not witlitn the statute of frauds, as the waiver of the plaintiffs’ lien furnished a new and original consideration moving between tlie contracting parties.</p>

<p>Negligence — when a foreman represents the master — liability of a master to his servant.</p> <p>This action was brought to recover damages for personal injuries sustained by the plaintiff, which were alleged to have been occasioned by the negligence of a foreman, for whose acts it was claimed that the defendant was responsible. It appeared that the plaintiff, while working on one of the lower decks of a vessel, was struck by a section of a hatch which was being removed from the main deck under the orders of the foreman, who exercised the powers of employing, discharging and directing the labors of the defendant’s servants. It was claimed by the plaintiff that the foreman was negligent in directing the hatch to be removed by one person, and in failing tc give warning to those working below. Evidence was, however, given by the defendant tending to show that more than one person was directed to take up the hatch; and that two persons, one at each end, attempted to do it ; and that the falling of the hatch was caused by one of those persons allowing it to slip from his hands, thus wrenching it from the hands of the other person.</p> <p>Held, that the foreman represented the master, and did not hold towards the plaintiff the relation of a fellow servant, and that the defendant was liable for any neglect on his part to adopt all reasonable means and precautions to provide for the safety of the employees.</p> <p>The defendant’s counsel requested the court to charge “that if, after the direction to remove the hatch given by Robert W. Gray (the foreman), the hatch fell by reason of the carelessness or negligence of Rouse or Holbrook, or either of them, the defendant is not liable.”</p> <p>Held, that it was error to refuse so to charge.</p>