Volume 47 — Barbour's New York Supreme Court Reports

THE plaintiffs were merchants in the city of Hew York ; the defendants commission merchants and warehouse men in the city of San Francisco.

<p>APPEAL from an order made at a special term, denying the defendant’s motion to vacate an order of arrest. The facts are stated in the opinion.</p>

THIS action was brought to recover upon four causes of action: 1. An account for goods sold by the plaintiff to the defendant in March and April, 1861, for $385. 2. Moneys paid by the plaintiff for the defendant, in March, 1861, $41.15. 3. A note given by the defendant to the plaintiff, for $246.03, dated January 8,1861, at four months. 4. A note given by the defendant to the plaintiff, for $75.16, dated December 2, 1859, at eighteen months. The answer: 1.

ÁPPEAL from an order made at a special term, directing that John Orser, late sheriff of the city and county of Hew York, be made a party plaintiff, and that the summons, pleadings Sue. be amended by inserting therein the name of the said John Orser, late sheriff, as a party plaintiff.

THIS action was brought on a bill of exchange at ninety days, for $1200, dated at Indianapolis, Indiana, June 1, 1857, and drawn by Jno. W. Wright on the defendant, payable in Hew York to the plaintiff's order, and accepted by the defendant. The defense set up was that the acceptance was obtained by Wright from the defendant by fraud, and that the plaintiff is not a bona fide holder for value.

THE plaintiff was the owner of a farm in the town of Southport, Chemung county, through which a highway was laid out, by the commissioners of highways. Commissioners appointed by the county court assessed the damages of the plaintiff at §185. The plaintiff appealed from such assessment, and the jury upon such appeal reassessed the damages of the plaintiff at §355.

The cause was tried at the. May Saratoga circuit, 1865, before Justice Jambs, and a jury. On the trial it appeared, that in May, 1864, the plaintiff’s daughter was pregnant, and at her own solicitation, was carried, in company with a female friend, by the defendant, to Saratoga Springs. The parties stopped at a public house, from whence the two females, alone, went to the office of a physician.

The plaintiffs alleged in their complaint that they were partners in trade, doing business at Canton, St. Lawrence county, under the style of H. Eodee & Co. That on the… Held: as directed by the vendee. The plaintiffs, who reside eighteen miles distant from Ogdensburgh, applied to the defendant on the 5th of July, 1864, to purchase wheat, and the defendant made, them a verbal offer of two thousand three hundred' btishels óf Milwaukee Amber, to arrive on the 14th, of July.

<p>The act to create a metropolitan sanitary district, &c. (Haws of 1866, pp. 114, 1462,) does not authorize, and was nqt intended to authorize, the board of health, or any part or member of it, to redefine a nuisance ,gr .common nuisance, or to declare an apt or thing to be a common nm||^ce which clearly is not and can not, under any circumstances, be such at common law.</p> <p>Notwithstanding the attempt, by section 14 and other parts of the act, to give the board full power to remove, abate, suspend, alter, improve and purify any thing dangerous to life or health, as a public nuisance, the question whether the thing which has been or is to be removed, abated, &e. was or is dangerous to life or health, or was or is a public nuisance, is a jurisdictional question.</p> <p>But independent of the special provision in- the act to that effect, considering that the act not only gives power, but imposes a great public duty, on such a question all presumptions are and should be in favor of the board.</p> <p>Though the execution of an order of the board of health, directing a certain species of manufacture to be suspended, may deprive an individual of his property, yet it can not he said that the individual would thereby be deprived of his property “ without due process of law,” within the prohibition of the constitution, if the business be a public nuisance; for the legislature had the power to give the board the right to do, and to make it their duty to do, the same thing which any citizen may do of his own motion, in respect to abating a public nuisance.</p> <p>The act of 1866 is not unconstitutional as establishing an inferior local court, within the prohibition implied by article 6 of the constitution of the state. Nor is the act unconstitutional on the ground that it authorizes the board of health to pass by-laws and ordinances. If the legislature had power to create the sanitary district and the sanitary hoard, it had the power also to give the board the right to pass by-laws and all proper ordinances to carry out the purpose of such creation.</p>

THIS action was commenced for the partition of certain real estate situated in the city of Hew York, among the heirs of William Post, the common ancestor, who died in 1804. The said William Post left a will, dated July 21, 1803, which was.duly proved July 21, 1804. By this will, the premises in question were devised to the testator’s two sons, William Post and Gerardus Post, as tenants in common.

<p>The priority of a mortgage, first executed, will be presumptively lost by the omission to record it until after a second mortgage has been recorded/</p> <p>And that presumption must prevail against the first mortgage, unless it can be overcome by evidence, in the manner sanctioned by law.</p> <p>If no such evidence be given, the prior mortgage will be deemed to be, in fact, as it is in law, a second mortgage, though given before that which has acquired priority over it.</p> <p>But as such, the mortgagee possesses the right to maintain an action upon the first mortgage, for the foreclosure of so much of the equity of redemption as remained in the mortgagor at the time when it was recorded, and for a satisfaction of the debt secured by it, by a sale of the mortgaged premises, notwithstanding there has heen a foreclosure of the second mortgage, and a sale under it.</p> <p>It is generally, if not universally, true as a-legal proposition, that no person can he affected or prejudiced by legal proceedings against property in which he has an interest, unless he, or those under whom he derives his title, were made parties to such proceedings.</p> <p>There can be no reason for depriving a junior mortgagee of his right to foreclose his mortgage, and sell the mortgaged premises, merely because they have been previously sold, under a foreclosure of the senior mortgage, without making Mm a party.</p> <p>The right of a junior incumbrancer to extinguish the lien of a senior incumhrance, it is well settled, continues until that incumbrance has heen foreclosed. Then the lien becomes a title,</p> <p>But a foreclosure as to other parties is not sufficient to divest the right of an incumbrancer not joined in the action. Por as to him, there can be no foreclosure, under such circumstances. He must have his day in court before his right in the mortgaged premises can he divested, or even seriously impaired.</p> <p>As to such a party, his interests are not foreclosed by a proceeding carried on only against others. And for that reason, when he comes in to redeem, he is not required, as a condition of doing so, to pay the costs of the ineffectual foreclosure.</p> <p>Whether an action to redeem can he brought after the expiration of ten years from the time the mortgage debt became due, or the last payment was made upon it % Quiere.</p>

THIS action was brought to foreclose two certain mortgages, held by the same trustees, (of whom the plaintiff is the survivor,) on the railroad and equipments of the Plattsburgh and Montreal Bailroad Company.

<p>The signing of a notice of appeal from the judgment of a justice of the peace to . the county court is an act which any person may do for another, by request, whether he has been admitted by the court to practice as an attorney in courts of record or not.</p> <p>Hence a notice' of appeal signed “ M. S., defendant, by W. J. S. his att’y,” is valid, although W. J. S. is not an attorney at law.</p>

<p>APPEAL from an order made at a special term, overruling a demurrer of the defendant, to the plaintiff's complaint.</p>

<p>The defendant, a foreign corporation, being authorized by .the Jaws of this state to make contracts for life insurance, M., its agent in kew York, gave the plaintiff a receipt, signed by him, acknowledging the receipt of $80.25, premium on a proposal of assurance for $5000 on the life of lier husband, H. F., which sum (it was stated) was to be forwarded to the head" office at Liverpool, for acceptance. If the proposal was accepted, a policy was to be issued in accordance therewith; and if declined, the premium was to be returned. But in case H. F. should die before the decision of the head office should have been received, the sum insured was to be paid. The proposal was for- • warded by M. to, and accepted by, the head office at Liverpool, and a policy of insurance was made out by the corporation in conformity to the terms of the proposition, and was duly authenticated, and sent to M., at New York. The policy was never in fact delivered to the plaintiff. Before the end of the year, the plaintiff tendered the premium for another year, $80.25, to M. at the office in New York, which he refused to -receive. H. F. died before the end of that year. In an action upon the receipt or agreement signed by M., to recover the stun insured; BCeld that it was no part of the contract that its binding effect or validity should depend upon any subsequent act of the corporation, or. of its'agent, in the actual delivery of the policy so issued, to the plaintiff.</p> <p>That the acceptance of the proposition, and the premium, the malting out and authenticating a policy, and the transmission of it to the agent of the corporation was, under the circumstances, a delivery to the plaintiff, and all the legal delivery required. •</p> <p>That these acts amounted to a consummation of the contract; the minds of the parties had met, and action had been taken upon it by the corporation; and that the company, by retaining the premium, was estopped from denying that the contract was perfect.</p> <p>Held, also, that the tender of the second premium, by the plaintiff, was equivalent to its payment, and that the death of the assured entitled the plaintiff to recover.</p>

APPEAL by the defendant Theodore D. Yorks from a judgment in favor of the plaintiff, entered in the office of the clerk of Chemung county, upon the report of a referee, on the 8th day of July, 1865.

THIS was an action to obtain a judicial construction of the last will and testament óf Laartus Bundy, deceased. It was tried at the Otsego special term, in August, 1865, and judgment was entered in it, on the 30th day of December, 1865, in the office of the clerk of Otsego county. All parties, who appeared in the action, appealed from the judgment to.. the general term of this court.

THIS action was brought to procure the cancellation and satisfaction of a mortgage held by the defendant against the plaintiff's intestate, claiming that the same had been fully paid. The defendant had begun a foreclosure of said mortgage, by advertisement, claiming to be due thereon $4312.67.

<p>PPEAL from a judgment entered in favor of the plaintiff upon the decision of the judge, at the Albany circuit, on a trial without a jury.</p> <p>The action was brought against the defendant as a common carrier, to recover the value of one hundred and one half beer barrels which were delivered at one of the freight houses of the defendant, at East Albany, on the 5th day of July, 1861, for transportation to Boston, directed to a person in that city. The same evening the barrels were destroyed by fire, which took place accidently, while they were in the possession of the defendant. The plaintiff had been in the habit, on previous occasions, of sending receipts for the company to sign, by the last load, which was not done at this time. The appellant employed a receiving and shipping clerk, whose duty and practice it was, on being notified of the delivery of goods for transportation, to correct tally and check them, and hand his account to the book-keeper, who entered them in the book kept for that purpose, and by this book the goods were shipped. The goods were not shipped unless receipted. The barrels in question were not tallied, counted, booked or receipted, nor did the plaintiff, or any one in his behalf, apply to the defendant to have them counted, tallied, booked or receipted. There was some evidence to show that the receiving agent was - present when some of the articles were delivered, and had notice of the delivery. The judge found, among other things, that the barrels were delivered for transportation, and received by the defendant as a common carrier, and that the plaintiff was entitled to recover for their value and interest, #220.22; for which amount judgment was entered, and the defendant appealed to the general term. The appeal was submitted upon printed briefs.</p>

THE plaintiff, by her complaint, demanded a personal “judgment against the said defendant, for one hundred and fifty dollars, besides the costs of the action,” and alleged that the defendant was a married. woman, having separate property.

The cause was tried before the court, without a jury, at the Eensselaer circuit. Held: as matter of law, from the facts found, that no suit was brought against the company, for the collection of the debt in question, within one year after it became due, as required by the act, and therefore directed judgment for the defendants.

The action was brought to recover the possession of certain lands in Greene county. The complaint contains two counts. The first is the usual count in ejectment.

The complaint alleged, that the on the 4th of March, 1865, the defendant entered into an agreement in writing with the plaintiff, as follows: “ Troy, March 4, ’65.

THIS is an appeal by the plaintiff from a judgment in ejectment, rendered in favor of the defendant, in an action tried at the Eensselaer circuit, in October, 1864. The defendant being in possession of the premises, and having had a conveyance thereof, in the usual form, in 1852, from Elizabeth Tift, in 1854 mortgaged the same to the plaintiff.

EXCEPTIONS ordered to be heard, in the first instance, at the general term. The action was tried before Justice Miller and a jury, at the Schoharie circuit, in October, 1865. The complaint was for taking and converting a mare and colt, 24 head of horned cattle, and 54 sheep.

THIS is an appeal, by the defendant, from a judgment in favor of the plaintiff, on a verdict for $8000.

THE action was brought by the plaintiff to recover an alleged indebtedness of the defendant’s testator. Nathaniel Wright, to the firm of Wyman & Livingston, attorneys at law, for professional services rendered, and' disbursements made, by them, between January, 1853 and 1860. The account was duly assigned to the plaintiff The defendant qualified as executor, and advertised for creditors to preseqt their claims on or before the 15th day of March, 1861.

The action was brought by the plaintiff to restrain the defendants, as loan commissioners of Bensselaer county, from selling certain premises under a mortgage executed by one Millar, to their predecessors, on the 28th of July, 1837, for $500, which the plaintiff claimed was satisfied and discharged by a previous sale. The cause was referred to George Gould, Esq. as referee, who reported in favor of the plaintiff.

The action was brought for the purpose of foreclosing a mortgage given by Daniel I. Hitchcock, one of the defendants, to the plaintiff, for $662.20; also a mortgage executed by said Daniel I. Hitchcock to the plaintiff, conditioned to indemnify him as security upon two notes given by the said Daniel I. Hitchcock. The mortgaged lands originally belonged to the defendant Zelam Hitchcock, the appellant, who was the only defendant who appeared in the action.

THIS cause comes before the court upon exceptions ordered to be heard in the first instance at general term. The action was tried at the Rensselaer circuit, before Justice Hogeboom and a jury, and the complaint was dismissed. The action was brought to recover possession of certain premises situated in the city of Troy. - On the 27th September, 1862, the plaintiff leased to John Walsh, Phineas S. Pettit, and Aaron 0.

WRIT of error to the court of sessions, of Ontario county. The defendant was indicted at the oyer and terminer, in May, 1865, for taking fish with a seine, from Canandaigua Lake.

THIS action was brought on a contract of warranty, claimed to have been made by the defendant on the sale of a horse to the plaintiff. On the 5th of September, 1863, the plaintiff purchased a horse of the defendant, for the sum of $225.

THIS action was brought by the plaintiff to recover for an injury sustained by him while a passenger on the cars of, the defendant. On the 5th of January, 1864, the plaintiff took passage on the cars at Rochester, for Knowlesville, Orleans county. The train stopped at Brockport, and met' the other train going east. That train was a few minutes behind time.

The action was brought to foreclose a mortgage, given by Boswell Jeffrey and wife to to P. G-. Merritt, dated April 26, 1851, to secure the payment of $554 and interest. A bond accompanied the mortgage, bearing even date therewith, and in the penal sum of $1108, conditioned to pay the sum of $554 on the 26th of April, 1856, with anntial interest.

THIS is an action submitted to this court by all the parties in interest, pursuant to the provisions of section 372 of the Code, to obtain a judicial construction of the provisions of the will of Hoadiah Moore, late of the town of Champlain, in the county of Clinton, deceased.

THIS action, was commenced in December, 1858, for the purpose of obtaining a judicial construction of the will of Jesse L. Billings, deceased, and for settling the… Held: First. That the legacies given by the will to the defendants, Boyds, were a charge upon the real estate owned by the testator at the time of his death. The other findings it is not material to notice. To the first finding there was an exception. The. remaining facts sufficiently appear in the opinion.

THIS case is upon appeal from a judgment in favor of the plaintiff, on a verdict at the circuit, held in the county of Saratoga. The plaintiff, as the survivor of his brother, brings this action to recover a canal boat, alleged .to have been obtained from the plaintiff and his brother, in June, 1858, by Flanders & Perry, upon fraudulent representations as to their solvency or responsibility to pay for the boat.

THIS action was brought to recover for a quantity of saw logs cut by the defendant upon a tract of land in Chazy, Clinton county. The lot in question is part of lot Ho. 4 of what is called the “Refugee tract of 420 acre lots ;” and the trial involves the question of title to the locus in quo.(a) The plaintiff himself, is the source of title—obtained 27th July, 1839. The tract is nearly in a square form.

ACTION to obtain a judicial construction of the last will and testament of John Woodruff, deceased, and to restrain and enjoin the defendants Simeon Cook and Bose Ellen Cook, his wife, from committing waste on a farm situated in Otsego county, which the deceased owned at the time of Ms death; and for a partition of such farm. The will of the deceased was dated and executed August 21, 1855, and by it the testator devised and directed as follows, viz: “First.

THIS was an action to recover the amount claimed to he due on a contract for the sale of a piece of land by the plaintiff to the defendant. The action was tried at the Chemung circuit, in September, 1865, when the jury rendered a verdict in favor of the plaintiff for $354.09. After judgment was entered on the verdict in favor of the plaintiff, the defendant appealed, from the judgment, to the general term of this court.

THIS was an action on the case for a nuisance. The complainant alleges that the plaintiff is, and for some time time has been, seised in fee, and is the owner of the freehold of a piece of land situated on south IPitzhugh street, in the city of Eochester, being in town lot Ho. 52, and designated on a map of Corn-Hill, as subdivision lots 7 and 17. That the defendant is the owner and seised in fee of a lot of land next adjoining upon the north of the above described premises.

The referee found that on the 1st of November, 1858, the following written contract was made and entered into between one 0. 0. Adams and the plaintiff, under their hands and seals : “ This agreement, made the first day. of November, one thousand eight hundred and fifty-eight, by and between John H. Lamb, of the town of Nunda and county of Livingston, of the first part, and 0. 0.

The opinion of the court states the facts. I. The assessors had no jurisdiction to assess the appellant for personal property. There is certain personal property which is exempted by law from taxation, viz: 1. Property exempted by law from execution. (1 R. 8. 5th ed. 906, § 5, sub. 9.) 2. The personal property, sufficient to pay all just debts.

THIS was an action brought by the plaintiff, as assignee of Joel Parker, against the defendant as executrix of Isaac M. Woolley, deceased, to recover the amount of a legacy of $1248, given to said Joel Parker by the will of said Woolley. The court found the following facts: 1.

The relator obtained from one of the justices of this court an alternative mandamus, directed to the defendant, as street commissioner of the city of New York, commanding him to permit the relator to see and inspect certain contracts and vouchers on file in the street department, or show cause, &c. The affidavit of the relator, upon which the application was founded, alleged that the relator was a citizen of said city, and a member of the corporation, “ The mayor, alderman…

THIS action was brought to recover the possession of twenty-two Oneida County War Loan Bonds, for the sum, amounting in all, of principal, to $20,000, besides interest. Held: although nothing appeared to show the defendant was not ready and willing to convey. The case was again reviewed, cited, and approved in Burlingame v. Burlingame, (7 Cowen, 92.) This case is directly in point.

The action was brought by the plaintiff against the defendant, as administrator of Charles H. Gardner, deceased, to recover the possession of three promissory notes, made by Jonathan Irish, and… Held: that it was not indispensable to a l valid donatio mortis causa that it be made in extremis; and j whether the gift be absolute or conditional, it is good as _ j against the representatives of the donor, and every one (except creditors) claiming by title subsequent.

THIS was an action to recover the value of personal pro, perty alleged to have been wrongfully taken and converted .by the defendants. In October, 1865, the defendant Bach, man was a justice of the peace, and the defendant Vandermark a constable, of the town of Waterloo, Seneca county. One Hubbell made complaint before said Bachman, charging the plaintiff with grand larceny, in stealing the property in suit.

80, and from an order denying a new trial on the judge’s minutes. The plaintiffs are assignees of the firm of Lane & Guild, under a general assignment made May 8, 1861, for the benefit of creditors. This action was brought to recover the sum of $2300, with interest, for an alleged conversion of certain notes left with the defendants by Lane & Guild, the assignors of the plaintiffs, as collateral security for the payment of moneys due the defendants.

THIS is an action for taking and converting a quantity of hardware, claimed 'to be the property of the plaintiff. The defendants justified the taking under an attachment issued in an action in the Superior Court against Dwight E. Bay and James D. Bay, composing the firm of Bay Brothers. Bay Brothers were dealers and jobbers in hardware in the city of New York, and failed in November, 1860, largely insolvent.

<p>Where one permits himself to be held out as the principal in a business carried on in his name by another, the fact that he has no interest in the business, but the same is conducted by and for the benefit of such other person, will not relieve him from liability to all who deal with the person conducting the busihess, in ignorance of the actual relation of the parties to each other.</p> <p>As to those who are aware of the manner in which the business is conducted, the presumption is that if they furnish goods on the order of the person in charge of the business, and deliver the same at the store where the same is carried on, credit is exclusively given to the person in charge; unless a different intention was manifested at the time.</p>

THIS was an action on a promissory note for $86.56, executed by Simeon 0. Ames, deceased, payable to Jacob Hardy or bearer, and dated the 22d day of April, 1860. The action was commenced the- 24th day of December,-1864. The answer contained three defenses : 1. Payment of the note to Jacob Hardy in his life time; 2. Counter-claims amounting to $150 ; 3.

<p>Before a mortgage can be foreclosed by advertisement, it is necessary that the same, containing the power of sale, should be duly recorded.</p> <p>If the mortgaged premises consist of distinct farms, tracts or lots, situated in different counties, the mortgage must be recorded in the clerk’s office of each county.</p> <p>If it is so recorded, the notice of sale may be published in a newspaper printed in either of them.</p> <p>But where the land lies in several counties, the notice of sale must be affixed on the court house door in each county, and a copy delivered to the clerk of each county.</p> <p>The statute requires that when mortgaged premises consist of distinct farms, tracts or lots, they shall be sold separately. If sold together, the sale will be void, or at least voidable.</p>

THIS was an action for a divorce, on the ground of adultery. Feigned issues were awarded, and tried by a jury, who found that the .defendant had been guilty of adultery, as charged in the complaint. The defendant was offered as a witness on her own behalf, and rejected. The defendant made a motion, on a case and exceptions, at the Madison special term, in June, 1866, for a new trial, which -motion was denied.

DEMURRER to complaint. The complaint alleged that on or about the 18th day of February, 1859, one Homer Anderson made and entered into an agreement with the defendant, in the words and figures following, to wit: “ Memorandum of an agreement made and entered into this 18th day of February, 1859, between Homer Anderson, of Hew Lisbon, county of Otsego, state of Hew York, of the first. part, and Silas S. Seeley, of Morris, county and state aforesaid, of the second part,…

THIS action having been tried before a referee, he reported in favor of the plaintiff, and directed that the defendants pay the plaintiff the costs of the action. Judgment was entered upon'the report, against the defendants, for damages and costs, without any application having been made to the court, and special leave grantéd, to enter judgment for costs.

THIS action was brought to recover of the defendant the amount due on a mortgage executed by one Joseph F. Franklin, to the plaintiff, on lands situated in the state of Iowa. Held: that Whitely was not personally liable for such deficiency, notwithstanding the implied covenant in the deed. This case was cited with approbation, and its doctrine reaffirmed in the more recent case of Trotter i ■v. Hughes, above cited.

<p>Under the act qf the legislature of April 13, 1855, giving a right of action against the city or county to a person whose property shall he “ destroyed or injured ” in consequence of any mob ór riot, for the damages sustained, an action lies to recover the value of the property appropriated and carried away by the persons composing the mob, as well as of that which was destroyed. Ingraham, J. dissented. 1</p>

<p>APPEAL from an order made at a special term, vacating an attachment,- in an action wherein the plaintiff sought to enforce a contract of sale and purchase made for her benefit, and to recover the purchase money contracted to be paid by the defendant, against whom the attachment issued.</p>

THIS action was brought to recover damages for an infringement of the plaintiff’s trade mark as a manufacturer of steel pens, by the defendants ; and the plaintiff prayed for an injunction restraining the defendants from using the trade marks in question.

WILLIAM HARRISON executed his bond, dated May 26, 1846, to Frederick Bronson, executor, &c. of Isaac Bronson, deceased, in the penalty of $8000, conditioned to pay “ in gold and silver coin, of the standard by which the coins of the United States were regulated by the laws existing on the 26th day of May, 1846, the sum of $4000 ” in three years from the date thereof, with interest at the rate of seven per cent per annum, payable semi-annually, and mortgaged certain property…

<p>The delivery of an execution to the sheriff binds the personal property of the defendant, and authorizes a sale thereof after the death of such defendant, although there was no actual levy previous to his death ; provided the property is not exempt, from levy and sale.</p> <p>Where property is exempt from seizure and sale upon execution in the life time of the judgment debtor, it continues thus exempt after his death, for the benefit of his widow, who continues to reside in the' house occupied by her husband in his life time, with her minor children, for whom she provides.</p> <p>The statute exempting certain property from levy and sale on execution should receive a liberal and humane interpretation, not only in favor of the debtor, but in favor of his family. Per Ingalls, J.</p>

THIS is an appeal from a judgment entered in favor of the plaintiff against the defendants for $408.81, May 3,1866. The action was brought by the plaintiff to recover upon a bond executed by the defendants, after the seizure, by attachment, of a. certain barge, to enforce a lien for lumber claimed to have been furnished by the plaintiff, to the value of $247.64, and used in the construction of said barge, at Bondout, in the county of Ulster.

<p>l^TEIT of error to the Albany court of sessions.</p>

The action was brought to restrain the foreclosure of a mortgage, and to set the same aside, on the ground that such mortgage was never delivered to or for the grantee. • On the 11th of May, 1858, the plaintiff purchased from the defendants, Osbom & Clow, a lot of land in Port Byron, for the sum of $1200, and took a conveyance thereof. At the time of the plaintiff’s purchase there were three mortgages upon the property, appearing on the records in the clerk’s office.

The action was brought to recover damages for the death of Susannah Knight, the plaintiff’s intestate, occasioned, as claimed, by.the negligence of the defendants’ employees, upon its railroad, in November, 1859. At the first trial of the action, the plaintiff was nonsuited. On appeal, the court, at general term, granted a new trial.

MOTION by the defendant for a new trial on exceptions ordered at the circuit to be heard at a general term in the first instance. On the trial at the circuit, the plaintiff recovered a verdict for $400.

<p>APPEAL from a judgment of the Ontario county court, reversing a judgment of a justice of the peace.</p>

The complaint, in the action before the justice, was in trespress, to recover one dollar damages for an injury done by the hogs of the defendant to the plaintiff’s crops, and for “one other dollar laid out and expended by the plaintiff, by reason of the premises, in the taking care of, and feeding said hogs.” The answer was a general denial.

<p>Though the general rule, as to the measure of damages, in an action of trover is the value of the property detained, with interest, this rule has many exceptions. Among them is the case where the plaintiff, being the true owner, has been subjected to the loss of time, or the payment of money, in searching for the property unlawfully taken; in which case a reasonable allowance may be made, by the jury, for such time and expense, in addition to the value of the property and interest.</p> <p>A witness having testified to facts material to the issue, the plaintiff gave evidence tending to show that the witness had made statements out of court inconsistent with his evidence given on the trial. This testimony was objected to by the defendant as immaterial and irrelevant; no other ground being stated for the objection. Held that the defendant could not afterwards urge the objection on the ground that the witness’ attention had not been directed to the time and place and to whom the declarations imputed to him were made.</p>

The action was brought for the purpose of-having certain conveyances of real estate, made to the defendant Miles P. Lampson, declared to have been given in trust for the Buffalo, Corning and New York Bailroad Company, to whose rights the plaintiff had succeeded ; and of compelling a conveyance of the same to the plaintiff.

MOTION by the plaintiffs for a new trial, on exceptions ordered to be heard at the general term in the first instance. The complaint set forth the following agreement in writing signed by the parties : ■£tRochester, Sept. 25, 1865.

The action was brought by the plaintiff as receiver of John Hughes, appointed in proceedings supplementary to execution, to recover the avails of a promissory note for $166.65, made by J. Donellan & Go., alleged to belong to said John Hughes, and which was purchased by the defendant of Onney Hughes, the wife of said John Hughes.

APPEALS from, judgments entered upon the reports of a referee. The above entitled actions were brought under substantially similar circumstances, and the questions arising in each were almost, if not entirely, identical. The actions were brought to recover possession of certain cattle, the prop.erty of the plaintiff.

HIS action was brought to recover §1000 which the plaintiff had paid to the defendants on a purchase of one hundred barrels of whisky. The money was paid and the following receipt was taken by the plaintiff: “Received, Rochester, June 25th, 1864, from M. J. Monroe, one thousand dollars to apply on purchase, one hundred bbls. western whisky, aboye to be carried thirty days. §1000.

THE . complaint in this action alleged fraud and deceit in the sale of a horse by the defendant to the plaintiff. That the plaintiff made representations which he knew to be false, and that the “ defendant, by means of the premises, falsely and fraudulently deceived him, (the plaintiff,) on the sale of said horse as aforesaid,’ to the damage of the plaintiff of five hundred dollars,” for which judgment was demanded.

THIS action was brought by the plaintiff, as surviving administrator of Luther Stanley, deceased, upon a bond executed to the intestate by-the defendant, conditioned for the payment of $907.49, with interest.

referee. The plaintiff, in his complaint, claimed $300, for moneys had and received by the defendant to his use, from the Erie Railway Company, on account of the wages of- the minor son of the plaintiff. On the trial it appeared, that for four or five months, and perhaps for a longer time, during 1863 and 1864, Coryell Herrick, the plaintiff's minor son, living at the time with his father, performed services for the Erie Railway Company, as a brakeman.

<p>THIS is an appeal by the plaintiff from an order granting a new trial. The action was for assault and battery. The defense was that the plaintiff was trespassing on the defendant’s land, or land of John Culver, of which he had charge as agent for the owner, stealing wood ; that he ordered her off the premises ; that she refused to go, and that the defendant thereupon ejected her, using no more force than was necessary—which is the assault and battery complained of. On the trial the defendant gave evidence tending to establish this defense. The court charged the jury “ the defendant is strictly or technically liable to respond in this action. Any such interference with her person can not be justified even if she was trespassing, Sac” To this the defendant excepted. The defendant thereupon also requested the court to charge that if the plaintiff was trespassing upon the farm of the defendant’s father at the time of the taking of the wood in question, and if on-being required to leave the premises, the plaintiff refused, the defendant had a right to use sufficient force to eject her from the premises, and that if he used no more force than was sufficient for the purpose, the plaintiff was not entitled to recover. The court refused so to charge, and the defendant excepted.</p> <p>The court further charged the jury to “ find for the plaintiff such a verdict as you think will be just and proper,” and they found $100.</p>

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

MOTION by the defendant for a new trial on a case and exceptions, ordered to be heard in the first instance at general term. The action was commenced in April, 1864, to recover possession of»a farm in Conesus, Livingston county. The plaifitiff in his complaint claims the undivided half of the farm, but' does not state what the nature of his interest is, or by what right he claims, or whether he claims a fee simple interest, or otherwise.

THIS was a proceeding for the distribution of surplus moneys arising from the sale of mortgaged, premises under a decree of foreclosure. John J. Phelps held a mortgage upon the premises, second to that of the plaintiffs in . this suit. Both those mortgages were paid out of the proceeds of the sale ; and there remained a surplus of §5487.18 to the credit of this action.

<p>THIS action was brought by the plaintiffs as executor and executrix of John La Large, deceased, to recover of the defendant, as surety of the lessee, certain rents reserved in and by a written lease. On the 27th of January, 1853, John La Large and Charles Wright entered into an agreement, in writing and under seal, by which La Large demised to Wright the premises then already built up and known as Metropolitan Hall; also the premises adjoining and fronting on Broadway, in the city of Hew York, on which La Large was then erecting a hotel, for the period of ten years from May 1st, 1853, at the annual rent of $48,000, payable in equal monthly payments of $4000 each, “ on the first day of every month, after the rent should commence as thereinafter provided.” And it was agreed that “ the rent should commence as soon as the said hotel should be finished and fit for occupancy as thereinafter provided.” La Farge agreed that he would complete the hotel with reasonable dispatch, according to certain plans and specifications. By the sixth article, it is provided as follows : “ Philip Burrowes and Charles E. Appleby, or in case of their disagreement an umpire to be selected by them, shall determine when the payment of the rent shall commence, according to the provisions of this indenture.” And by the sixteenth article it is provided as follows: “In case the said Philip Burrowes shall become unable or refuse to act in discharge of the powers herein conferred upon him, it shall be the duty of the said Wright to appoint some person to be the successor of said Burrowes. And in case the said Charles E. Appleby shall become unable or refuse to act in discharge of the duties herein conferred upon him, it shall be the duty of the said La Farge to appoint some person to be the successor of said Appleby; and such successors of the said Burrowes and of the said Appleby, respectively, shall be vested with all the rights and powers hereby conferred upon them.” Provisions were also inserted whereby Burrowes and Appleby were to ascertain, in like manner, what abatement on the rent ought to be made in case the premises were partially damaged by fire, or in case the business should be interrupted by reason of any epidemic disease. And in case of a total destruction by fire, the lease was to terminate. Annexed is an instrument, bearing even date with the lease, (January 27th, 1853,) and executed under the hand and seal of the defendant, as follows : “ I William L. Wood, of Hartford, Connectieut, in consideration of the execution "of the foregoing lease, by John La Farge, and the sum of one dollar to me in hand paid by him, do hereby covenant and agree with him that Charles Wright named in the said lease, shall well and truly pay the rent thereby agreed to be paid, during the period of one year from and after the time the rent shall commence, according to the condition of said lease; and in case of the failure of said Wright to make such payment, I covenant and agree to and with the said La Farge that I will pay the same to the extent of $10,000, less one fifth of what said Wright may have previously paid on account of such rent. Kothing herein contained shall be regarded as an assumption of liability on my part beyond that sum.” On the 8 th of January, 1854, the buildings on the demised premises were destroyed by fire, and, being burned down to the ground became wholly untenantable, Avhich terminated- the lease. Up to the time of the fire, it had not been determined when the rent should commence ; and Philip Burrowes did not act because he went to Europe on the 5th of January, 1855, and has not since returned. On the 22d of February, 1855, W right, the lessee, by an instrument in Avriting, executed under- his hand and seal, appointed one Peter D. Loucks to be the substitute or successor of Burrowes as referee, and Loucks, by an indorsement in writing, consented to act, pursuant to the appointment. On the 2d of December, 1856, Appleby and Loucks notified La Farge and Wright, the landlord and tenant, in writing, of the time and place when the referees would hear the proofs and allegations of the parties in reference to the matters mentioned in the sixth article of the lease, that is to say, as to the time when the rent should commence. At the time and place appointed, viz. at the office of Apple-by, Ko. 110 Broadway, Kew York, on the 15th of December, 1856, the referees met and were sworn; and, after hearing the proofs and allegations of the parties, signed a written decision in these words: “ At the time and place appointed in the foregoing notice, the undersigned met and proceeded to investigate the question as to the time when the payment of the rent should commence, according to the provisions of the lease referred to in the said notice ; and having been attended by the parties, and having heard all - the proofs and allegations which they or either of them had to offer in reference to the said question ; and the said question having been fully submitted to us for decision, we do hereby decide and determine that the said rent should commence on the 15 th day of November, 1853, and that the said rent did begin to accrue on that date.” The cause was tried ait a circuit court, held in New York, before Hon. Le Roy Morgan", jnstice, and a jury, in November, 1864. On the trial the foregoing facts were proven ; and the plaintiffs’ counsel, in addition, offered to introduce the written testimony and proceedings before the referees, which were "excluded by the court. The defendant’s counsel objected to the introduction of the substitution of Loucks, his consent to act, the notice of hearing and the decision, upon the following grounds, in each instance, viz :</p> <p>“ 1. That it had not yet appeared in evidence that Philip Burrowes, the referee named in the lease, had become unable or refused to act in .discharge of the powers conferred upon him in said lease.</p> <p>2. That it did not yet appear in evidence that ■ due diligence to charge the defendant as surety had been used by the plaintiff.</p> <p>3. That no notice had been given to the defendant of any intention to make such appointment, or of its having been made.”</p> <p>These objections were overruled by the court, and the defendant’s counsel excepted. The defendant’s counsel also proved to dismiss the complaint, without assigning any grounds ; which motion was denied, and he excepted. The court then directed the jury to find a verdict for the plaintiffs, to which the defendant’s counsel excepted and his exception was noted. Under the instructions of the court, the jury rendered a verdict in favor of the plaintiff for the sum of $12,245,55, being the amount claimed, (viz. $6,969.83, for fifty-three days rent, from Nov. 15th, 1853, to the time of the fire on January 8, 1854, at the rate of of $48,000 per annum,) with interest from the 8th day of January, 1854,</p> <p>The exceptions were ordered to be heard in the first instance</p> <p>at a general term, upon a case, with leave to enter a nonsuit; judgment in the meantime to be suspended.</p>

APPEAL by the plaintiff from an order made at a special term, vacating an order of arrest, as to the defendant Mumford.

The action was brought against T. M. Hall, R. Green and P. 0. Van Wyck, to recover for the making of a planing machine, under a contract between the plaintiffs and the two defendants Hall and Green. Those defendants did not answer the complaint, nor contest their liability.

THIS case came before the court on a writ of error to the Hew York general sessions.

THIS action was brought to recover the possession of personal property claimed to be wrongfully detained from the plaintiffs by the defendant.

THIS is an appeal to the general term from an order refusing a new trial, and also from a final judgment rendered on a verdict of a jury. The facts of the case are these : The appellant’s business was that of selling and procuring charters for vessels. The defendants (twelve in number) are the owners of the steamboat Seth Low. Several of the owners of the boat requested the appellant, as a broker, to procure a charter for her, and stated their price.