Volume 47 — New York Reports

Plaintiff served an offer that judgment be reduced to fifty dollars, which was not accepted. The facts sufficiently appear in the opinion. In determining whether recovery is more favorable than offer, defendant’s disbursements and costs in justice’s court should be deducted from offer.

Appeal .from a judgment of the General Term of the Supreme Court in the third judicial district, affirming a judgment entered upon the report of a referee, granting a perpetual injunction against the defendants. Beported below.

The facts sufficiently appear in the opinion. In a contract by an agent in his own name, for an unknown principal, the principal is liable. (Fowler v. Seaman, 40 N. Y., 592; Clapp v. Rogers, 2 Kernan, 283; Hyde v. Paige, 9 Barb., 150.) The evidence being undisputed, this court must reverse the judgment. (Roberts v. Fisher, 43 N. Y., 159.) The money should be refunded. (Smith v. Felton, 43 N. Y., 419.) Plaintiff must show that the signature was that of the firm.

Susan E. Ackerman made her will, dated February 6, 1867, and died in the year 1867, leaving five children, one of whom, the plaintiff, Oscar B. Collins, was an adult, and the other four were infants, and the defendants, one of whom, Annie D. McCoy, was the wife of appellant.

<p>Appeal from judgment of the General Term of the Supreme Court of the eighth judicial district, affirming a judgment in favor of defendant entered upon the report of a referee.</p> <p>The plaintiffs were copartners in business, and on the 9th day of December, 1867, shipped by defendants from Le Roy, in Genesee county, to their consignees in Rew York, seventy-eight dressed pigs, weighing 9,182 pounds, the property of plaintiffs, which, in the ordinary and usual course of transportation, should have reached JSTew York in forty-eight hours. Such property was unnecessarily detained by the defendants and did not reach the city of New York until the 26th day of December, 1867. In the meantime the market price had fallen an average.of one and one-half cents per pound. This action was brought to recover damages for the neglect to transport the same within a reasonable time; it was tried before a referee, who held that the plaintiffs were not entitled to recover for the decline in market value, and ordered judgment for defendants.</p> <p>Plaintiff was entitled to recover his loss by the depreciation in the market value of the property after the time it should have been delivered. . (Kent v. Hudson River R. R. Co., 22 Barb., 278; in Medberry v. New York and Erie R. R. Co., 26 Barb., 564; Brackett v. McNair, 14 Johns., 110; and Leonard v. Telegraph Co., 41 N. Y., 544; Griffin v. Colver, 16 N. Y., 489 ; and Scovill v. Griffith, 2 Kernan, 509 ; Collard v. South-eastern Railway Co., 7 Hurl & N., 79; Wilson v. Lancashire and Yorkshire Railway Co., 99 Eng. Com. Law, 632; Same v. New Castle and Berwick Railway Co., 18 Eng. Law and Eq., 557, 559 ; O'Hanlon v. Northern R. R. Co., 6 Best & Smith, 484; Ingledew v. Northern R. R. Co., 7 Gray, 86; Smith v. New Haven and Northampton Railway Co., 12 Allen, 531; Cutting v. Grand Trunk R. R. Co., 13 Allen, 381; Weston v. Grand Trunk R. R. Co., 54 Maine, 376; Hackett v. Boston, Concord and Montreal R. R. Co., 35 N. H., 390 ; King v. Woodbridge, 34 Vermont, 565; O'Oonner v. Foster, 10 Watts, 418; Sisson v. Cleveland and Toledo R. R. Co., 14 Mich., 489; Peet v. Chicago R. R. Co., 20 Wis., 594; Whalen v. Aldrich, 8 Minn., 346; Davies v. Shields, 24 Wendell, 322; Clark v. Finney, 7 Cowen, 681; Priestly v. Northern Ind. and Chicago R. R. 26 Ill., 205 ; Sedgwick on Damages, 4th ed., 401; 1st ed., 355.) The rule of damages is the same whether the goods were shipped to be sold in the market or not. (Cutting v. Grand Trunk Railway Co., 13 Allen, 381, and cases there cited.) The defendant is liable, although the delay occurred upon its connecting road. (Laws of 1847, chap. 270, § 9, p. 299; Foy v. Troy and Boston R. R. Co., 24 Barb., 382; Muschamp v. Lancaster and Breton Junction Railway, 8 Meeson and Welsby, 421; Nashua Lock Co. v. Worcester and Nashua R. R. Co., 48 N. H., 339, and cases therein cited.)</p> <p>The burden of proof as to error is with the appellants. (Chubbuck v. Vernam, 42 N. Y., 432.) The contract was for transportation to Albany only. (Root v. Gt. W. R. R. Co., Ct. Aps. not yet reported, Rafallo, J.; Pendergast v. Adams Ex. Co., 101 Mass., 120.) The diminution in the market price of the goods was not the true measure of damages. (Wibert v. N. Y. and E. R. R. Co., 19 Barb., 36; Jones v. N. Y. and E. R. R. Co., 29 Barb., 633 ; Conger v. H. R. R. R. Co., 6 Duer., 375, 381, 382, and cases cited below in argument; Griffin v. Colver, 16 N. Y., 489 ; Sedgwick on Meas, of Dam., 4th ed., chap. 3, p. 81, note 1; p. 406, note 3 ; Hamilton v. McPherson, 28 N. Y. Rep., 72, 77; Hadley v. Baxendale, 9 Exch. Rep., 341; Hales v. London and Northwestern R. Co., 4 B. & S. 66, op. of Lord Cockbubn, C. J.; Briggs v. N. Y. C. R. R. Co., 28 Barb., 515, 521, op. of E. Darwin Smith, J.; Smeed v. Ford, 1 Ellis and Ellis, 602, and 28 L. J., N. S., 178 ; Gee v. The Lancashire and Yorkshire R. Co., 6 H. & H., 211; Great Western R. Co. v. Rodmayne, 1 Law Rep., C. P., 329 ; Kent v. H. R. R. Co., 22 Barb., 278; Medbury v. N. Y. and E. R. Co., 26 Barb., 564; Leonard v. N. Y. and Tel. Co., 41 N. Y., 544; Collard v. S. E. R. Co., 99 Eng. C. L., 632; Smith v. N. H. and W. R. Co., 12 Allen, 531; King v. Woodbridge, 34 Vt., 565 ; Wilbert v. N. Y. and E. R. R. Co., 19 Barb., 36; Jones v. The Same, 29 Barb., 633 ; Conger v. H. R. R. R. Co., 6 Duer, 375, 301, 381.</p>

This action is brought to recover the value of a barrel of spirits shellac delivered to defendants, who were common carriers upon the canal, consigned to He well & Turpin of Rochester, and alleged to have been lost by the defendants.

This action is brought to obtain a limited divorce, under article 4 of title 1 of chapter 8 of part 2 of the Revised Statutes.

This action is brought upon an accident policy of insurance issued upon the life of W. S. Mallory for the sum of $2,000, for the benefit of and made payable to plaintiff.

The facts appear sufficiently in the opinion. Equity has no jurisdiction to relieve against pure, naked mistakes of law. (Mitford, PL in Eq., by Jeremy, 132; Lyon v. Richmond, 2 Jons. Ch., 51; Stewart v. Stewart, 6 Cl. & Fin., 964-971; 1 Story’s Eq. Jur., § 138, p. 163; Shotwell v. Murray, 1 Johns.

This action is brought to recover damages for a breach of a contract to sell and deliver cotton.

(Reported below, 1 Daly, 523.) The plaintiffs and their assignors, together with the defendants herein, were members of an unincorporated association, known as the “ Mutual Pleasure Club,” a voluntary association for mutual recreation in boating and yachting. The club contracted with the defendant, Rauhr, who was its commodore, for a pleasure boat, which Rauhr agreed to build for $1,000. The boat, was built, and $500 paid by the club to Rauhr on account thereof.

This was an action to recover damages for an interference with the plaintiff’s alleged right to the waters of a stream or water-course, stated in the complaint to be a natural stream. On the 13th day of January, 1849, and for many years prior thereto, one Hewbold owned, and was in possession of a tract of farming land in the town of Caledonia, between the Genesee river and the Genesee Talley canal, on the western part of which tract was a marsh or swamp.

Appeal fi’om judgment of the General Term of the Supreme Court, in the seventh judicial district, affirming judgment upon a verdict in favor of the plaintiff, and affirming an order denying a motion for a new trial. The action was for an injury to the plaintiff while a passenger on the defendant’s road, alleged to have been caused by the defendant’s negligence. The injury to the plaintiff occurred at Rome on the 18th of April, 1860. The plaintiff was then twelve years old.

<p>Appeal from, an order of the General Term of the Supreme Court in the fourth judicial department, reversing an order of Special Term denying plaintiffs’ motion to set aside judgment in favor of defendants for costs, and that judgment be entered in favor of plaintiffs for their costs instead. The facts sufficiently appear in the opinion.</p> <p>A justice of the peace had jurisdiction of the action, and the recovery being less than fifty dollars, defendant was entitled to costs. (Code, § 304; sub. 3, § 305; sub. 4, § 54; Davis v. Spencer, 24 N. Y., 391; Lockwood v. Shone, 1 Ker., 175; Folland v. Sprague, 12 Peters, 303; Matteson v. Bloomfield, 10 Wend., 555 ; Mills v. N. Y. Com. Pleas, note, 10 Wend., 555; Eaves v. Henderson, 17 Wend., 190; Phillips v. Belden, Ed. Ch., 1.)</p> <p>Contested demands were proven exceeding $400 ; this entitled plaintiffs to costs. (Code, § 304, sub. 3 ; § 54, sub. 4; Stillwell v. Staples, 5 Duer, 691, 694; Glaskin v. Zeller, 52 Barb., 147; Griffin v. Brown, 53 Barb., 428; Bailey v. Stone, 41 How., 346.) The general conclusion of a referee involves a finding upon all material questions, though not expressed in terms. (Grant v. Morse, 22 N. Y., 323; Tomlinson v. Mayor, etc., 44 N. Y., 601, and cases cited.) The court will construe the findings so as to support the referee’s conclusions of law, if possible. (Ballard v. Burgett, 47 Barb., 646; Matthews v. Coe, 56 Barb., 430 ; Smith v. Coe, 29 N. Y., 666 ; Valentine v. Conner, 40 N. Y., 435 ; Chubbuck v. Vernam, 42 N. Y., 435 ; Grant v. Morse, 22 N. Y., 323; Tomlinson v. Mayor, 44 N. Y., 601.)</p>

The complaint in this action was for money had and received by the defendant’s testator to the plaintiff’s use, to the amount of $260. The answer of the defendant alleged, “ that she has no information sufficient to form a belief as to whether” the said money was or was not received by her testator. On the 15th of May, 1871, the issue was referred by consent. The ease was brought on for trial before the referee on the 12th day of July, 1871.

But a single question is presented by the case, which is set forth in the opinion. This court is not deprived of jurisdiction to review upon the evidence questions of fact, excepting in regard to cases tried by a referee or judge.

The plaintiff recovered a judgment in Justice’s Court, Columbia county, for ninety-five dollars damages and five dollars costs, August 23d, 1866. The defendant appealed therefrom to Columbia County Court for a new trial, and his notice of appeal contained, among other things, the following clause: “ 5th.

” On the trial defendants produced evidence tending to show that the sale complained of was done without any motive to defraud; and that the purchaser had full information that the article sold was an imitation. The court concluded the charge as follows: “I rule, that if the jury should find precisely as the defendants’ witnesses say, still they are liable-. I direct the jury to find a verdict for plaintiffs for $200.” Defendants’ counsel excepted to the ruling of the court.

This is an action of ejectment brought to recover possession of certain lands in Hancock, Delaware county. The facts presenting the questions decided are sufficiently stated in the opinion. Conveyance may be presumed to quiet possession. (Cowp., 102-217; Jackson v. McCall, 10 John., 377-380; 12 Vesey, 266; 3 John. Cases, 118 ; 3 Mann. & Ryl., 329; 1 Ph. Ev., Cow. & Hill & Eds. Notes, ed. 1859, 603, sub. 6; 10 John., 382; Taylor v. Horde, 1 Burrows, 60, 126; 3 Phil.

<p>In an action upon a policy of fire insurance covering a stock of goods, which policy expressly declares that only goods “not hazardous,” and “ hazardous,” were insured, and that the keeping of “ extra hazardous,” or “ specially hazardous ” goods on the premises shall avoid the policy.</p> <p>Held, that evidence showing the application was for a policy upon a stock such as is usually kept in a country store, and that in response to such application this policy was sent, was inadmissible, either as an admission by defendant that the policy was intended to conform to the application, or as notice to the company that the insured kept in his store such merchandise as is usually kept in country stores, including goods coming within the prohibited classes.</p> <p>'The fact that the insured ordered a different policy, and did not discover . until after the fire that the one issued was not in accordance with his order, is immaterial. The failure of the insured to read his policy will not enlarge the liability it imposes.</p>

The action is to establish a lien on premises conveyed by the plaintiff to the defendants for damages sustained by alleged fraudulent representations in procuring a conveyance of such premises. The answer put in issue the plaintiff’s allegations of fraud. An order was entered on the 5th day of October, 1868, upon the stipulation of the attorneys for the respective parties, directing certain specified questions of fact to be tried by a jury.

This action is brought to recover damages sustained by plaintiff while a passenger on one of defendant’s cars, on the night of November 24th, 1865. The facts as to the injury are fully stated in the opinion. At the close of plaintiff’s evidence defendant’s counsel moved for a nonsuit, upon the ground that defendant was not liable for the willful trespass of the conductor, or for Ms act in intentionally shoving plaintiff from the car. Motion was denied and defendant excepted.

<p>In an action against a repair contractor upon the canal for damages to a boat, caused by the giving way of the gates of a lock upon his section, which he had neglected to keep in repair, as required by his contract,— Held, that it was not contributory negligence upon the part of the captain of the boat, that he made the attempt to pass the lock, knowing that the gates were in a dilapidated condition. As a common carrier it was his duty to make all reasonable exertions to deliver the freights intrusted to him, and to proceed for this purpose as long as there was a reasonable prospect that he could do so with safety, although some danger was incurred. In order to charge him with negligence, when the defect occasioning the injury was not sudden and unexpected, but known to and within the control of the contractor, it must be made to appear the defendant had so far violated his'contract that it was imprudent to attempt such navigation at all, by reason of the obvious dangers to be encountered.</p>

<p>In an action brought by a husband against the wife, to have the marriage declared void by reason of her former marriage, upon the final hearing and a, decision in favor of the wife, the court has power to award her extra expenses and counsel fees beyond the taxable costs.</p>

The plaintiff had recovered at the circuit. The action was trover, to recover the value of three one thousand dollar coupon bonds of the Milwaukie and St. Paul Bailroad Company, which were payable to bearer. The bonds had been delivered by the plaintiff to Mr. Thomas, a broker, to take to the defendant, who was an officer of the Milwankie and St. Paul Railroad Company, and to sell them to him.

<p>Appeal from judgment of the General Term of the Supreme Court in the eighth judicial district, affirming judg ment entered upon the report of a referee dismissing plaintiff’s complaint.</p> <p>This is an equitable action, brought to compel defendants, to remove a railway track from River street, in the city of Buffalo, and to restrain them from running railway cars thereon. The facts presenting the questions decided sufficiently appear in the opinion.</p> <p>There is no form or mode by which the easement the public have in our highways can be legally enjoyed by a railroad. (Williams v. N. Y. Cen. R. R. Co., 16 N. Y., 97; Wager and others v. Troy Union R. R. Co., 25 N. Y., 526.) Vide also the case of Craig v. The Rochester and Brighton R. R. Co. (39 N. Y., 414), decided since this case was tried by the referee. (Carpenter v. The Oswego and Syracuse R. R. Co., 24 N. Y., 655; Mahon v. The N. Y. C. R. R. Co., 24 N. Y., 658; Milhau v. Sharp, 27 N. Y., 611; Sherman v. McKeon, 38 N. Y., 266.) The aldermen and the other officials of a city are the mere agents of the corporation, and are bound to act infra vires. (Lowber v. The Mayor of the City of New York, 5 Abbott’s R., 325; Clarke v. The City of Rochester, 5 Abb. R., 107; Wyatt v. Benson, 4 Abb., 182.) When a power is conferred with a proviso, the performance of the proviso is a condition precedent. (Bloodgood v. Mohawk and H. R. R. Co., 18 W., 1.) The grantee of a lot bounded on a street prima facie takes to the center. (Adams v. The Saratoga and Washington R. R. Co., 11 Bar., 414; Bissell v. N. Y. Gen. R. R. Co., 23 N. Y., 61; 2 John., 363; 1 Wend., 270 ; 2 Wend., 473 ; 8 Wend., 106.) The grant in question is the grant of a franchise. (3 Kent’s Com., 458; 2 Black. Com., 37; 11 Peters. R., 639; 3 Paige R., 75; Milhau v. Sharp, 15 Barb., 193; 2 Story’s Eq., § 925 ; Williams v. N. Y. C. R. R., 16 N. Y., 97, 111; 6 John. Ch., 439; Angell on Highways, § 283; 6 Abb. Pr., 273.) Statutes are to be expounded according to their meaning ; not according to their letter. (5 Bar., 156 ; 13 N. Y., 78; 15 John., 359; 3 Bar., 429; 15 N. Y., 532.) All statutes in pari materia are to be construed together as if they were one law. (1 Doug., 30; in Court of Errors, 20 John., 75; 9 Cow., 437; 15 Bar., 627; 7 How., 421; 9 Barb., 161.)-Statutes in favor of corporations or particular persons in derogation of common right, are to be strictly construed. (2 Cow., 419; 22 Bar., 622; 2 Mass., 146; 4 Mass., 140; 6 Wen., 85; 18 Barb., 393; 9 How., 238 ; 11 N. Y., 593.) A special power, granted by statute, affecting the property of individuals, should be strictly pursued, and appear to be so on the face of the proceedings. (4 Burr., 2244; 1 Burr., 377; 7 T. R., 363 ; 3 John. Cases, 107; 4 Hill, 76; 2 Den., 323; 1 Com., 79; 10 N. Y., 328; 7 Hill, 431.) It is illegal to allow a public thoroughfare to be devoted to a private use. (Congreve v. Smith, 18 N. Y., 79-82 of opinion; 23 Ren., 446; 16 N. Y., 158, 161; 22 Eng. Law and Eq., 198.) To determine whether powers exercised by a municipal corporation be public or private, regard must be had to the object for which they were granted. (3 Hill, 531; 5 Selden, 163; Wend v. The Mayor and City of Troy, 39 Bar., 329; affirmed in Court of Appeals, not yet reported.) The granting of a franchise to a railroad for purely private purposes by the corporation of a city, without consideration, is a fraud upon the people in the city. (Christopher v. The Mayor of New York, 13 Bar., 576; Agar v. The Regents of the Canal Co., Cooper’s Equity Cases, 77; Lawrence v. The Mayor of New York, 2 Bar. S. C. R., 577.) An individual owner of real property upon the public street of a city, may maintain an action to enjoin the construction of a railway which would be a nuisance. (Milhau v. Sharp, 28 Bar., 228; affirmed in Court of Appeals, supra; 7 Abb. Pr., 220; 17 Bar., 435; 14 N. Y., 506; 1 Bin., 463; 4 M. & S., 101; 3 Bam. & Cressy, 556; 5 Bing., 91; 4 Den., 311.)</p> <p>Plaintiffs’ land not being used they cannot complain. (Radcliff v. Mayor of Brooklyn, 4 Coms., 195 ; Milhau v. Sharp, 27 N. Y., 624; Grant v. Morse, 22 N. Y., 324, 325.) The Legislature had the constitutional right to grant the power, where the question of eminent domain did not arise, and where the permission was in the form of a revocable license. (The People v. Kerr, 21 N. Y., 188, and cases cited ; Davis v. Mayor of N. Y., 14 N. Y., 506 ; Laws of, 1835, Ch., 300.) Ifothing authorized by a constitutional statute can be legally a nuisance. (9 Barb., 350 ; 10 Barb., 26; 2 Duer, 618; 18 Barb., 222.) A private erection across a highway not a nuisance, if authorized by the Legislature. (13 Barb., 32; 5 Cow., 165; 3 Hill, 621.)</p> <p>Plaintiffs have failed to make out a right of action. (Wright v. Delafield, 25 N. Y. R., 266; Ferguson v. Ferguson, 2 Com., 360; Kelsey v. Western, 2 Com., 500; Bailey v. Rider, 6 Seld., 363 ; Rome Exchange Bank v. Eames, 1 Keyes, 588; Coleman v. The Second Avenue Railroad Company, 38 N. Y. R., 201; McKinlay v. Merrish, 21 How. U. S. R., 343, 336-348.)</p>

This is an action of ejectment brought to recover the possession of a strip of land occupied by the defendant in the city of Buffalo. On the 18th day of November, 1841, Israel T. Hatch recovered a judgment against Elijah A. Bigelow, who is the common source of the title.

(Beported below, 2 Lansing, 137.) The action was brought to recover damages for a fraud alleged to have been committed by the defendants, in a sale by them to the plaintiff, of a large quantity of cheese, on or about the 8th of August, 1866. On or about the 8th of August, 1866, the defendants sold to the plaintiff some 491 cheese, weighing over 40,000 pounds, at the price of seventeen cents per pound. The defendants represented the cheese to he of good quality.

This was an action against the defendant for negligence. The plaintiffs were owners of a canal boat, “ Milton Hoag,” which in December, 1865, was loaded with coal, and was taken in tow by a steam-tug, the “ Ontario,” which on that day left Jersey City for the foot of Broad street, Hew York, on the East river, where the tug was to make up a tow for Albany, of which the plaintiffs’ boat was to be one.

This is an action for alleged malpractice and neglect on the part of the defendant as a physician. The plaintiff was born on the 9th day of August, 1867; the action was commenced in April, 1668. The gravamen of the action was neglecting to treat and improperly treating the eyes of the plaintiff, by reason of which he lost the sight of one and that of the other was injured.

This action is to foreclose a mortgage, bearing date the 16th day of October, 1866, executed by the defendants to the plaintiff, conditioned to pay to the plaintiff the sum of $500 in one year from the date of the mortgage, with the interest thereon, and to faithfully fulfill the conditions of a certain contract, executed by the defendant, Thomas Sheehan, to the plaintiff and one William Allen, bearing even date with the mortgage, and with the further condition, that, in…

45. ° The action was brought to recover a balance of advances made by the plaintiffs upon various lots of cotton delivered to them by F. B. Blanchard & Co., to be shipped to England for sale.

The Evergreens was a rural cemetery incorporated under the general act of April 27, 1847.

<p>The eases in which this court can look into the evidence upon a trial by the court or a referee, with the view of determining whether the questions of fact arc properly decided, are only such as are made exceptions to the general rule by statute. (Code, §§ 268, 272.)</p> <p>Where a contract as evidenced by the writings between the parties is not entirely intelligible, evidence of the situation and relation of the parties toward each other, and of the circumstances attending the negotiation, is competent, as aids in the interpretation of the written instrument.</p>

Appeals from orders of the General Term of the Supreme Court in the second judicial district, reversing judgments of the city court of Brooklyn, in favor of defendants, entered upon the reports of a referee, and overruling new trials.

On and prior to the 23d of January, 1861, the plaintiff, Lewis R. Garnsey, was the owner of two mortgages upon the premises described in the complaint, one of which was given to him directly, and the other of which he had acquired by purchase and assignment from the original . mortgagee named therein. At the date above mentioned, the premises covered by these mortgages were owned by the defendant, Richard M. Hermanee, who had assumed and agreed to pay them.

This action was brought against the defendant to recover damages for an alleged enticement and harboring of plaintiff’s minor son, who still owed service to him, and enlisting him into the military service of the United States as a substitute for defendant. He was enlisted in August, 1864, and died in the service in the month of December, 1864. The case was first tried at the Cortland circuit in June, 1867, and the plaintiff was nonsuited.

This action is brought by plaintiff, as assignee in bankruptcy of Nathan Whiting, asking that defendant be required to convey to him certain real estate, or, in case that any was sold, he be adjudged to pay the value thereof. Nathan Whiting was declared a bankrupt on the 14th March, 1868. Plaintiff was appointed assignee May 11,1868. Defendant was the owner of a mortgage upon certain of the bankrupt’s real estate, of $2,000, upon which there was unpaid about $500.

The action was brought upon a promissory note, of which the following is a copy, viz.: $500. Oheektowaga, January 28, 1868. Three months after date we promise to pay to the order of George Meyer $500, value received, payable at Cheektowaga. (Signed) GEORGE WARDER. GEORGE H. HATTCH. 5 U. S. Eev. stamp, 25 cfcs., > Indorsed on the back thereof as follows: GEORGE HIBSHER. JOSEPH DTIRIHGER.

<p>Appeal from order of the G-eneral Term of the Supreme Court in the first judicial department, reversing a judgment entered upon decision of the court at circuit dismissing plaintiff’s complaint, and granting a new trial.</p> <p>This is an action of assault and battery brought against the defendants, the railroad company and one John Doe, who is stated in the title to be thus named because his real name is not known, the conductor being intended.</p> <p>The plaintiff, in the fall of 1864, got into one of the company’s cars at Peck slip, intending to get out at Fifty-ninth street. The fare to Forty-second street was fí/oe cents ; above that, by the charter, it was ten cents. Plaintiff tendered five cents fare. The conductor asked him six cents. Plaintiff asked for an explanation and the conductor told him the fare had been raised to six cents, and pointed out to him a placard to that effect, posted in the car. Plaintiff immediately “ told him he was not going to pay him six cents, that his fare was five cents and that was all he could get.” The conductor caught him around the waist and stopped the car to put him out. Plaintiff refused to leave the car, and resisted. Conductor told him he would put him out if he did not pay the other penny. This he refused to do, and conductor collared him. Plaintiff seized the handle of the door to prevent his being put out. The conductor then struck him one blow on the nose, which abrased the skin and caused it to bleed.</p> <p>The conductor proceeded no further m his attempt to eject him, and the plaintiff quietly rode to Fifty-ninth street, where he got out.</p> <p>At the close of plaintiff’s evidence defendant’s counsel moved to dismiss the complaint on the ground that the principal is not liable for the tort committed by an agent or servant, except it occurs in the immediate discharge of duty by the servant, or is authorized.</p> <p>The motion was granted, to which plaintiff’s counsel excepted.</p> <p>The principal not liable for the tort or negligence of the agent in matters beyond the scope of the agency, unless authorized or adopted. (Story’s Ag., § 456 ; Middleton v. Fowler, Salk., 282 ; McManus v. Crickett, 1 East, 106.) A railroad company only liable when the conductor, in discharging his duty, does it negligently and injury ensues. (Weed v. P. R. R. Co., 17 N. Y., 362; Sanford v. Eighth Ave. R. R., 23 N. Y., 343 ; Myer v. Second Ave. R. R., 8 Bos., 305; Hibbard v. N. Y. and E. R. R. Co., 15 N. Y., 155.)</p> <p>If act was willful, defendant is liable by statute laws of 1824, p. 347, § 1; 2 E. S., p. 165, § 7, 4th ed.) Irrespective of the statute, the defendant is liable. (Higgins v. The Watervliet Turnpike and R. R. Co., Court of Appeals, not reported; Weed v. The Panama R. R. Co., 17 N. Y. R., 363; Sanford Adm. v. The Eighth Avenue R. R. Co., 23 N. Y. R., 343.)</p>

The action was brought to recover a balance of account for a quantity of tobacco alleged to have been sold by George P. Hier & Co. to the defendants, on the 16th day of August, 1867, at the agreed price of $629.80; the balance claimed, $380.80, and interest from the day of such alleged sale. The firm of George P. Hier & Co., at the time of the alleged sale, consisted of Hier and Plumb, plaintiffs, and John Schnauber, since deceased.

This action is brought to recover for injuries sustained by plaintiff while a passenger upon defendant’s steamboat. On the morning of October 29th, 1865, plaintiff was a passenger on the steamboat “ St. John ” during a trip from Albany to New York. When the boat arrived opposite Twenty-fifth street, New York, an explosion of the port boiler took place, and plaintiff was scalded by steam and hot water escaping therefrom. He was maimed and crippled for life.

This was an action in the nature of a creditor’s bill brought by Horatio FT. Curtis against Boyal A. Fox and Margaret Fox, to reach certain real estate held by Margaret, and which the plaintiff claims was caused to be conveyed to her by the defendant, Boyal, with intent to defraud his creditors. The facts appear sufficiently in the opinion. Fox was entitled to the lands for the joint lives of himself and wife, and for his own as tenant by the curtesy.

The plaintiff in error was tried and convicted in the Oourt of General Sessions at the April term, 1871, upon an indictment charging in substance, that with intent feloniously to cheat and defraud one Emil Stork, he knowingly and designedly falsely pretended and represented, that a certain instrument and writing for the payment of money, commonly called a bank check, which he, the said Patrick W. Smith, then and there delivered to him, the said Emil Stork, purporting to have…

The action was brought to foreclose a bond and mortgage executed by defendants, James M. Osborne and Peter Wells to Samuel Hallett, president of the bank of Hornellsville. The complaint sets out the bond and mortgage, alleges an assignment thereof to Charles Belden, the death of said Belden and the appointment of plaintiff as his administrator. Defendant, Meeker, was a grantee of the mortgaged premises.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, reversing a judgment entered upon the report of a referee nonsuiting plaintiff.</p> <p>This action was brought to recover $500, the amount of a promissory note made by Mrs. Mary Crow to Sallio Taylor and by her transferred to the plaintiff as collateral security for a piano purchased by her.</p> <p>The note was dated January 25, 1868, payable six months after date, and was non-negotiahle. Mrs. Crow died April 14, 1868. The piano was purchased July, 1868.</p> <p>The claim was presented by the plaintiff to defendants, who were her executors, and payment refused.</p> <p>At the close of plaintiff’s evidence defendant’s counsel moved for a nonsuit, which was granted and plaintiff duly excepted.</p> <p>The facts proven sufficiently appear in the opinion. The General Term reversed the judgment without stating that the reversal was upon any question of fact.</p> <p>The order of General Term not stating that reversal was on the questions offact, the referee’s findings are conclusive; and the only question here is, whether upon these findings the defendants were not entitled to judg ment. (Code § 268; Marco v. L. and L. I. Co., 35 N. Y., 664; Baldwin v. Van Dusen, 37 N. Y., 487.) Here gratitude or affection no consideration for note. (Chitty on Bills, 84, margin ; Holliday v. Atkinson, 5 B. & C., 501.) The mere gift of the maker’s own note confers no cause of action against such maker. (Harris v. Clarke, 3 Comst., 93; 1 Parsons on Notes and Bills, p. 193.) The note not being negotiable, plaintiff took it subject to all equities and defences.' (Bush v. Lathrop, 22 N. Y., 535 ; Western Bank v. Sherwood, 29 Barb., 383; Parsons on if otes and Bills, vol. 2, p. 1; Chitty on Bills, 180, 181, margin.) The note could have no validity until negotiated for value. (Davis v. Schutt, 2 Den., 623; Clark v. Session, 4 Duer, 408.) While in hands of payee, authority to put it in circulation revocable, and is revoked by maker’s death. (Dugan v. Dubois, 2 Rich. Eq., 85; Hunt v. Rousmanier, 8 Wheat., 174; M. I. Co. v. Leavenworth, 30 Vt., 12.)</p> <p>An accommodation note is good in the hands of a third person, a holder for value even with notice. (Essex Co. Bank v. Russell, 29 N. Y., 673 ; Barrick v. Austin, 21 Barb., 241; Utica Bank v. Ganson, 10 Wend., 315; Agawam Bank v. Strever, 18 N. Y., 502; 1 Abb. Digest, p. 465, § 451; 6 Abb. Digest, 87, §§ 81, 82 ; 1 Duer, 309; 5 Duer, 462.) The note was given for a good consideration. (Trustees H. Col. v. Stewart, 1 N. Y., 581; 1 Stark R., 51; 2 Greenleaf Ev., 199; 12 Wend., 588; 2 Hill, 606, among other cases; Bank of Troy v. Topping, 9 Wend., 273; Hinman v. Moulton, 14 Johns., 466; Worth v. Case, 42 N. Y., 362.)</p>

This is an action brought by the administrator of a deceased child, three years and two months old at the time of his death, to recover under the statute of 1847 (chap. 450, Laws 1847, amended by chap. 256, Laws of 1849), for the pecuniary injuries suffered by the next of kin of the deceased by reason of his death, which is alleged to have resulted from the carelessness and negligence of defendant.

The action was brought upon a promissory note made by defendant, dated March 10, 1863, for $1,000, payable six months after date, with interest, given to Theodore Rogers, who has since deceased, and of whose estate plaintiffs are administrators.

Ebbob to the General Term of the Supreme Court in the first judicial department, to review judgment affirming judgment of the Court of General Sessions of the Peace in and for the city and county of Yew York, convicting plaintiff in error upon an indictment for obtaining property under false pretences. The plaintiff in error was indicted at the May Term of the Court of Oyer and Terminer, 1871, in the city of Yew York, for false pretence.

This is an action upon a promissory note made by the defendant, John P. Alger, and indorsed by Wilks S. Alger, since deceased, to one Ira M. Clark, for the sum of $629.76. The action was originally brought by Josiah Eaton, who having died pending the action, it was duly revived in the name of his personal representatives.

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, reversing and setting aside a surrogate’s decree made upon a settlement of the accounts of the defendant as administrator of the estate of his deceased wife, adjudging him entitled to the residue of her personal estate after payment of her debts. The case is reported below in 3 Lansing, 526.</p> <p>The wife of the defendant, Cyrus Underwood, died intestate, leaving between $3,000 and $4,000 of personal estate, which she derived from persons other than her husband, after her marriage with the defendant, which marriage was in 1857. She left no descendants her surviving, and no father, but left a mother, brothers and sisters, and the descendants of brothers and sisters, and her husband, the defendant. The present wife of the defendant is one of such descendants, and niece of his former wife.</p> <p>Defendant, as husband, administered upon his wife’s estate, and in due time cited her next of kin to appear before the surrogate of the county of Chautauqua, on a final accounting. On that accounting he was charged with the sum of $3,448.89, as the value or amount of the estate which came to his hands. He was credited for debts paid by him, and for his commissions, in the sum of $359.70, leaving a balance of $3,089.19.</p> <p>The surrogate held and adjudged that the defendant was entitled to retain all her personal estate, after the payment of her debts, without accounting for the same.</p> <p>At common-law, the property of the wife in possession was his, after her death, without administration, and not subject to the payment of her debts. (Bright on Husband and Wife, 34, 36, 41; McQueen on Husband and Wife, 46; Clancy on Husband and Wife, 2-4; 2 Kent’s Com.,143; Berly v. Rampacker, 5 Duer, 183.) As to choses in action, not reduced to possession during coverture, he takes them as administrator, subject to her debts only. (Williams on Ex’rs, 742, 1276; 2 Kent’s Com., 135, 136; Bright on Husband and Wife, 36; McQueen on Husband and Wife, 46-48; Clancy on Husband and Wife, 3, 4; Roper on Husband and Wife, 203, 204; Watson v. Bonney, 2 Sandf., 405; 12 Smedes & Marshall, 347; 2 Brock., 286, 287; 15 N. II., 564; 5 Johns. Ch., 196; 28 Barb., 633; Bradley v. Fielder, 2 M. & K., 57; Maloney v. Kennedy, 10 Simons, 254; Williams on Executors, 330, 1271; Stat. Edw. III, ch. 1, 11; Stat. 22 and 23 Car. II, ch. 10; Stat. 29 Car. II, ch. 3, §25; McCosker v. Golden, 1 Brad., 64.) The acts of 1848 and 1849 made no change in the law. (Rawson v. Nichols, 22 N. Y., 110; Ryder v. Hulse, 24 id., 312.)</p> <p>Since the acts of 1848 and 1849, the husband acquires no rights as administrator. ( Vallance v. Bausch, 9 Abb., 368.)</p>

The allegations of the complaint are as follows: “ The plaintiffs above named complain of the defendants above named, and show that, on or about the 9th day of August, 1860, the defendants were duly appointed executors of the last will and testament of John Munro, deceased, and have ever since been and acted as such. “ And the plaintiffs further show that, prior to the commeneement of this action, and during more than twelve years since the first day of May, 1857, they did,…

Appeal by the Sixth National Bank from an order of the General Term of the Supreme Court in the first department, dismissing an appeal from an order of Special Term in the first district, denying appellant’s motion for an order vacating and setting aside certain judge’s orders theretofore made by Justice Cakdozo in this action, ordering that appellants surrender and pay over certain moneys to the sheriff upon an execution herein against the property of defendant James E.…

<p>The established, canons of construction applicable to statutes, to wit, that the intent of the law-maker is to be sought for, and. when discovered, is to prevail over the literal meaning of the words of any part of the law;</p> <p>• and that this intent is to be discovered, not alone by considering the words of any part, hut by ascertaining the general purposes of the whole, and by considering the evil which existed calling for the new enactment, and the remedy which was sought to be applied; apply as well to the construction of a Constitution as to that of a statute law. A Constitution is also to be held as prepared and adopted in reference to existing statutory laws, upon the provisions of which in detail, it must depend to be set in practical operation.</p> <p>Where provisions are made for contingencies apprehended, or for occasional and temporary needs, they cannot be so interpreted as to clash with the general design, but should be in harmonious subservience thereto, and if their terms conflict with those provisions which are made part of the essen- ' tial framework of the general plan, and are of usual continuous and imperious operation, the former must yield and adapt themselves to the latter.</p> <p>By the judiciary article of the Constitution (article 6), adopted in 1870, it was intended that the general mode of filling the higher grade of judicial offices (unless and until it should be otherwise determined by the people, as therein provided) should be by election, at a general election, and not by appointment. It was also intended to create and secure longer terms, and to avoid fractions of terms, and one full term was designed to follow after another, and that these terms should end with one, and begin with another and the next political year. The vacancies provided for do not include one resulting from the expiration of a full term. Such a vacancy is to ho filled by the choice of the electors at the general election next preceding the expiration of the term.</p> <p>Where, therefore, a justice of the Supreme Court, in office at the time of the adoption of said article 6, whose term of office expired December 81, 1871, resigned the day prior to the general election in November, 1871, at which general election a successor to the office was elected,—</p> <p>Held, that the vacancy occasioned by the resignation only existed from the time of the resignation to the end of the term in which it occurred, to wit, to and including December 81,1871; that under section 9 of said article, the Governor had the authority to fill such vacancy, but that the appointment could be for that space of time, and no longer; and that, at the expiration of that time, and on the beginning of the new full term, the justice elect became the constitutional and legal justice of the Supreme Court for that term.</p>

The action was brought by the executor to obtain construction of the following will: “ In the name of God, Amen. I, Alfred Goldsborough Jones, of the city of Hew York, counselor-at-law, do make, publish and declare this to he my last will and testament. First. I do appoint my friend, John M. Knox, the executor of this my will. Second.

This action is for causing the death of Horatio Davis, plaintiffs’ testator, hy the wrongful act of the defendant. Davis was killed by collision with the defendant’s cars at a highway crossing in Riga, Monroe county, on the 18th of August, 1869. The action was tried at the Monroe circuit in February, 1871.

This is a proceeding under the mechanics’ lien law of 1863, for the city of Hew York. (Laws of 1863, p. 859.) It was commenced in the court of Common Pleas on the 15th day of June, 1868, by the service by the plaintiff upon the .defendant as contractor, and William H. Vanderbilt as owner, of a notice requiring them to appear and submit to an accounting. An order to plead was made on the same day, on plaintiff’s application.

Motion to dismiss appeal from an order of the General Term of the Supreme Court in the fourth judicial department, affirming order of Special Term. (No papers were handed down, and the nature of the order appealed from and the facts presented can only be gleaned from the opinion.)

This action is in the nature of a creditor’s bill, brought to reach certain real estate, alleged to have been conveyed to defendant, Mary A. Quinn, with intent to defraud the creditors of James O’Maley. Said O’Maley was originally one of the defendants. He died before trial, and defendant, Mary A. Quinn, was appointed administratrix, and the action was revived against her as such.

Lawrence county, in proceedings under the town bonding act, chap. 907, Laws of 1869, brought up for review upon writs of certiorari. A petition under said act was made and signed by the taxpayers of the town of Hammond, in the county of St. Lawrence, and presented to the county judge of said county for the purpose mentioned in and authorized by said act.

The action was brought to foreclose a mortgage. The bond and mortgage were executed by defendant, Disborough, in blank to secure payment of an apparent indebtedness of §10,000, which was stated in the mortgage to be part oi the purchase-money of the premises described. The name of defendant, Crooker, was subsequently inserted as mortgagee. Ho consideration was received by the mortgagee. Crooker assigned the mortgage to plaintiffs’ testator for $3,000.

The action was brought by plaintiff’s testatrix, Mary Hegeman, to recover the value of one-quarter of a schooner called the “ G. L:,” and the earnings of said one-quarter from Januuary, 1858, to January, 1863. First. In the winter of 1858, the defendant loaned to West & Walker (a firm composed of Francis West and Alvin Walker) the sum of $1,811. Second.

The complaint is to recover a balance claimed to be due for the purchase of certain premises in New York city, alleged to have been conveyed by plaintiff to defendant. The counter-claim alleged damages for the non-delivery of possession of the premises at the time agreed, and for the removal of certain fixtures which, by the terms of the agreement, were purchased with the property. A frivolous pleading cannot be stricken out on motion.

The points presented are stated in the opinion. The bill was defective. (Moran v. Morissey, 18 How., 131.) The allowing another to be served is a matter of favor. (Pimby v. Warden, 18 Wend., 471; Stanley v. Millard, 4 Hill, 51.)

This action was originally brought by the plaintiff, as administratrix of John GreenfieJd, deceased, against defendant, The Massachusetts Mutual Life Insurance Company, upon two policies of insurance upon the life of John Greenfield. The other defendants are the plaintiff, in her individual capacity as wife of John Greenfield, the mother and children of John Greenfield, and the son of the plaintiff by a former husband.

On the 21st of July, 1863, plaintiffs were the owners of a promissory note, made by E. P. Myers, of Cleveland, for $316.45, payable to the order of L. A. Carmer, and by him indorsed in blank. This note matured Aug. 21, 1863. On the 21st July, plaintiffs indorsed the note, and deposited it with Yan Saun & Son, in Mew York city, for collection.

This is an action in equity upon a bond given by defendants t« the plaintiff, conditioned that if upon due examination of the record in Washington, and of the letters patent granted, etc., it shall appear to be a fact that certain letters patent then sold to plaintiff for making paper were good and valid, and secured the exclusive right thereto, etc., then the bond to be void.

This action is brought to recover the value of certain wines and casks alleged to have been sold by plaintiff to- defendant. The contract for the sale of the wine was by parol. The questions presented arose upon the charge of the court, and upon exceptions to the rejection of evidence. These are sufficiently set forth in the opinion. The contract was within the statute of frauds.

This is an action of ejectment for the recovery of a piece of land in Sullivan county. The plaintiffs proved a prima facie title to the premises, and rested. The defendant then introduced a deed from the comptroller of this State, dated in 1828, given upon a sale by the State in 1824 for the non-payment of taxes, and regular conveyances thereunder to him in the year 1846, and possession thereunder by him from 1846 up to 1858, the time of the commencement of this suit.

On the 20th day of December, 1859, Howes & Co., who were owners of one-half the ship “Wanderer,” then under a charter to the Peruvian government to go to the Chincha Islands, take on a cargo of guano, and carry the same to Hampton Eoads, assigned to the plaintiffs all their interest in the said charter, and in the freight to be earned under the same, to be applied, when received by the plaintiffs, to the payment of a demand they held against Howes & Co., as ship’s husbands,…

This action is brought to obtain partition of certain real estate, of which it is claimed that the parties who are husband and wife are seized as tenants in common. The judgment directs a sale of the premises, the payment of the plaintiff’s costs out of the avails of such sale, and a division of the residue between the parties.

The action was commenced by the appellant to set aside a compromise of four actions pending in the Supreme Court, and to restrain the sale of certain lands upon a decree entered in pursuance of such compromise. Plaintiff obtained a temporary injunction restraining the sale, which was upon motion dissolved. The order appealed from is properly reviewable in this court.

This action is brought upon a bond made and delivered by-defendant to plaintiff, upon obtaining from the latter permission to lay railroad tracks upon sixteen different streets of that city, and as a part consideration for such franchise, wherein, among other things, it covenanted and agreed to keep the pavement of such streets “in thorough repair within the tracks, and three feet on each side thereof, with the best water-stone, under the direction of such competent…

<p>In an action brought by the assignee of a mortgage to foreclose the same, the mortgagor has the right to set up and prove a mistake in the drawing of the instrument, and have the same reformed.</p> <p>When the mistake is in the terms of payment, delay in moving to correct the mistake, and payment by the mortgagor of an installment, or a promise to pay as specified in the mortgage, under protest, asserting the mistake, furnish no ground for a denial of the relief to which he is entitled; nor will the absence of the assignor as a party bar him from such relief.</p> <p>The assignor is not a necessary party to the action, as upon the coming in of the answer, and notice thereby of defendant’s claim, plaintiff may give notice of such claim to the assignor, and offer to him the future management of the suit, which would make the judgment binding upon him in respect to the fact of the mistake.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial district, affirming a judgment in favor of plaintiff entered upon verdict.</p> <p>The action was brought to recover possession of a house and lot in the village of Port Henry, Essex county. At the time of the commencement of the action the premises in question were occupied by Michael Mulhern, as tenant of defendant. Mr. Smith, one of plaintiff’s attorneys, served the summons and complaint. Defendant told him at the time, in substance, that he lived in and owned the house, and thereupon the papers were served upon him.</p> <p>The judge charged the jury, among other things, that if they believed the defendant, at the time of the service of the summons, told the plaintiff’s attorney that he lived in or was in possession of the house, and that on the faith of that statement plaintiff’s attorney served the summons on him, the defendant was estopped from denying that he was in actual occupation at the time of the commencement of the action, to which charge defendant duly excepted.</p> <p>The counsel for defendant asked the court to charge the jury, that if defendant was not in actual occupation of the premises in question at the time of the commencement of the action, the action could not be sustained, but the court refused so to charge, and defendant duly excepted.</p> <p>And the defendant’s counsel also asked the court to charge that the defendant was not estopped by his admission to Mr. Smith, if such admission was made as testified to by Mr. Smith, there being no proof that plaintiff acted on the faith of such admission; the court refused so to charge, and defendant duly excepted.</p> <p>And the defendant also requested the court to charge that if. plaintiff knew, at the time the summons and complaint were served, that the premises in question were occupied by Mulhern, and not by defendant, plaintiff could not recover, and the court so charged.</p> <p>The court also charged the jury, that it was for them to decide whether there was sufficient evidence that plaintiff knew that the defendant was not in the actual possession of the premises at the time of the service of the summons, either by Mulhern, as his servant or agent, or by a revocation or surrender of the lease or otherwise, and that if they should find the defendant claimed to Mr. Smith, at the time of service pf the summons, that he was in possession of the premises, that Mr. Smith served the summons on the faith of that statement, and that the plaintiff did not then know that the defendant was not in possession, the plaintiff was entitled to recover though the defendant Was not in the actual possession of the premises at the time of the commencement of the action, to which the defendant’s counsel excepted.</p> <p>The jury rendered a verdict for the plaintiff for the recovery of the premises in question.</p> <p>The action was improperly brought against defendant, the premises for which the action was brought being “ actually occupied ” by another person, and not by defendant. (2 R. S., 304, § 4; Schuyler v. Marsh, 37 Barb., 350, 356 ; People v. Ambrecht, 11 Abb., 97 ; Taylor v. Crane, 15 How., 358.) In order to create an estoppel in pads, it must appear that one has willfully caused another to believe in the existence of a certain state of things, and induced him to act on that belief. (Packard v. Sears, 6 Ad. & Ell., 475 ; Baker v. Union Ins. Co., 43 N. Y., 283 ; Piper v. Gilmore, Maine Sup. Court, 3 Am. Law Reg., new series, 584; Wilcox v. Howell, 44 Barb., 396, 401; Willard Canal Co. v. Hathaway, 8 Wend., 480, 483; Brown v. Bowen, 30 N. Y., 519, 541; Dezell v. Odell, 3 Hill, 215; Copeland v. Copeland, 28 Maine, 525 ; Morton v. Hodgdon, 32 id., 127.)</p> <p>The principles of equitable estoppel were correctly stated in the charge. (Brown v. Bowen, 30 N. Y., 519, 541; M. & F. Bank v. Hazard, 30 N. Y., 226, 230.)</p>

302, Laws of 1859, to review the action of defendants in assessing certain lots owned by the Society of the Hew York Hospital.

<p>Appeal from order of the General Term of the Superior Court of the city of Row York, reversing judgment and order denying motion for new trial and granting a new trial.</p> <p>The action was brought by Delia Dickson to recover for personal injuries alleged to have been sustained by her by reason of defendant’s negligence, and was tried in the Superior Court, of the city of Flew York, at the May term, 1870. The trial resulted in a verdict of $3,000 in favor of the plaintiff. Motion for new trial was made and denied, and judgment was entered on the verdict May 27th, 1870.</p> <p>The defendant appealed to the General Term of the said Superior Court, both from the order and from the judgment. The appeal was argued at the General Term, and before decision was rendered defendant died. Upon suggestion of this, the order of reversal was entered nunc pro time as of the day the appeal was argued, and upon motion to revive, her administrator was substituted as plaintiff.</p> <p>The appeal should be dismissed, as case does not show that judgment was not reversed on questions of fact. (Miller v. Schuyler, 20 N. Y., 522; Hoyt v. Thompson, 19 id., 207; Barlow v. Scott, 24 id., 40; East River Bank v. Kennedy, 4 Keyes, 279; Wright v. Hunter, in this court, 4 Albany Law Journal, 352; Hoyt v. Thompson's Executors, supra.)</p>

) This is an action of ejectment brought by heirs of Hannah Youngs to recover lands in Southold, Suffolk county. Defendants claim to be in possession, as executors, under the will of Joshua Preston Youngs, who devised as follows: “I do hereby give and devise unto my beloved wife, Hannah Youngs, all my northside lot, etc., etc., describing it.

The action is upon a promissory note of $500, payable on demand with interest. Defence, statute of limitations. The statute had run against the note, and the action was barred, unless a demand was necessary, before the statute could begin to run. It was tried by the court, a jury being waived, who gave judgment for plaintiff for amount of note and interest. The action was barred by the statute.

The action was brought to recover an amount directed to be paid by the defendant, by an order of the Court of Sessions, of Cortland county, providing for the support of the aged father of defendant. The order was made in proceedings under 1 E. S., chap. 20, title 1.

This action is brought to recover damages for alleged breach of a contract made by defendant as common carrier. The facts are sufficiently set forth in the opinion. (Reported below, 59 Barb. 104.) The defendant cannot be made responsible in this action for any breach of duty as a common carrier, but only for a breach of the special contracts.

This action was brought to restrain defendant from the printing of an uncopyrighted and unpublished manuscript drama.

This was an action in equity in effect to remove a cloud from the title to certain premises in Chenango county, claimed to belong equitably to the plaintiff, but which was claimed to be owned by the defendants under legal title. Previous to the year 1844, the premises described in the plaintiff’s complaint were conveyed to Luther Foote, the husband of the plaintiff. The consideration therefor was mainly paid by the plaintiff.

The action is brought upon a promissory note of $425, payable one year from date with interest, given upon settlement of accounts between defendant and plaintiffs’ intestate, who died four months after the execution and delivery of the note. The facts sufficiently appear in the opinion. Possession of the note, under the circumstances, was not presumptive evidence of its discharge.

Aureal from order of the General Term of the Supreme Court in the first judicial department, affirming an order of Special Term, denying an application to vacate assessments for sewers between Seventy-ninth and Eighty-sixth streets and A venue A and Third avenue in the city of New York.

(Reported below, 58 Barb., 248.) This action was brought to recover back money paid on a note of $300, on the ground that the note was obtained by false and fraudulent representations, and was therefore void. This note was given in compromise and settlement of a suit brought by this defendant to recover installments due on a note of $500, executed by the plaintiff to the defendant, and was given in the place of the $500 note and exchanged for it.

This action is brought to recover an alleged balance of an account. The answer sets up payment and the statute of limitations. The evidence upon the issue of payment is set forth in the opinion. In regard to the statute of limitations, the following facts appeared: Defendant entered the military service of the United States in 1861, and between that time and September 20, 1862, was absent in such service eleven months and twenty-five days.

(Reported below, 1 Abb. N. S., 381.) This action was brought to recover damages for the alleged u negligence and carelessness of the defendant,” in omitting to demand payment of the maker, and give notice to the indorsers of two promissory notes deposited by the plaintiff’s assignor with the defendant for collection. George Ayrault, a cattle broker, in February, 1859, kept an account in the Pacific Bank.

order denying motion for new trial. This action was brought to recover damages for alleged fraud in the sale of land. The representations claimed to be fraudulent were made by the husband of the defendant,'he acting as her agent in the sale of the premises, the title of which wras in her.

David Willson died on the 16th of December, 1866, leaving a last will executed on the 12th of December, 1866. Azaliah Willson, appellant, was made one of the executors of said will by the testator, and has acted as the sole executor. A petition was made by said executor on the 14th of September, 1868, for final accounting before the surrogate, and an order made thereon and citations issued for the hear-' ing on the 21st December, 1868.

The defendant was incorporated as a turnpike company by a special act of the legislature, passed March 11, 1814, and completed its road shortly after its incorporation in that year. It had, for upward of fifty-five years prior to the commencement of this action, used the privileges and franchises conferred by its charter. This action was brought by the Attorney-General to exclude the defendant from its corporate rights, privileges and franchises on the ground of misuser.

The action is brought upon a policy of insurance dated January 11th, 1866, whereby the defendant insured the plaintiff in the sum of $5,500 “ on the brick and frame buildings situate on the south side of West Thirty-ninth street, extending from the Eleventh avenue to the North river, this city, known as the New York abbattoirs, and numbered from 1 to 43, inclusive, on plan of same, for the amount specified on each,” viz.: The amount insured on Nos. 23, 24, 25, 26, 27, 28 and…

Appeals from judgments of the General Term of the Supreme Court in the seventh judicial district, affirming judgments for defendants entered upon reports of a referee. The actions were in trespass for taking certain personal property of plaintiffs, who were tax-payers and residents in the village of Broclcport, Monroe county. Defendant, Williams, was the tax collector, and the other defendants were the trustees of said village.

(Deported below, 2 Lansing, 383.) The action is brought to recover certain freights and demurrage. The facts appear sufficiently in the opinion. The mere receipt of goods by one not the owner, does not make him liable to pay freight unless received under authority conditioned so to do.

<p>Where, after the obtaining of a judgment by. two partners plaintiffs, and an appeal therefrom by defendant, one of the partners dies, .and upon motion an order is granted substituting the personal representative of the -deceased partner as plaintiff in his stead, the appeal to this court from the judgment does not bring up such order for review; it is not “ an intermediate order involving the merits and necessarily affecting the judgment.” (Code, § 11, sub. 1.)</p> <p>On appeal to the General Term, the judgment may be reversed l'or error appearing on the record, but upon appeal to this court only actual determinations of the General Term can be reviewed. (Code, § 11.)</p> <p>Where, therefore, a judgment entered upon an order of the General Term does not conform to that order, the proper remedy is by motion in the Supreme Court to correct the judgment, and not by appeal to this court in the first instance.</p>

This is an action to recover the value of 2,600 barrels of apples consigned to the defendants, under the circumstances detailed in the opinion, which contains a statement of the facts pertinent to the questions decided. Consignees do not obtain liens for balances on general account until the goods are actually in their possession, although they may have accepted on faith of consignment.

These actions were brought to recover damages from the defendants for injuries alleged to have been caused to the plaintiff in the first of said actions, and to the plaintiff’s testator in the second of said actions, by the falling of a wooden awning at the north-east corner of Fourth avenue and One Hundred and Twenty-fifth street, in the city of New York, on the 22d day of February, 1867.

The complaint in this' action alleges, in substance, that in March, 1865, the defendant induced plaintiff to pay him $1,000 to purchase an interest in a farm in the oil regions, in Pennsylvania, known as the Magee farm, on the false representation that the farm was held for sale at the price of $50,000; and that the defendant and others were about to purchase it at that price; and if the plaintiff would advance the $1,000 he should have one-fiftieth part of the land.

The prisoner, John Purcell, was indicted for homicide of the degree of murder, first degree, for shooting William Kiernan with a pistol, in the city of Rew York, on the 24th day of May, 1869, and tried at the February term of the Court of General Sessions. lie was convicted of murder in the first degree, and sentenced to be executed.

Action to foreclose a mechanic’s lien alleged to have been acquired upon a school-house in the nineteenth ward in the city of New York. Plaintiff’s intestate was a sub-contractor. The contract was with the school officers of said ward.

The surrogate of the city of Hew York made a decree npon tlie final accounting in this matter, and an order making various allowances for counsel fees, which were filed and recorded April 12th, 1871; certain of the distributees of the estate, on the 12th of July, 1871, filed and served a notice of appeal from the decree and order, but without filing any bond as security for respondents’ costs.