Volume 48 — Barbour's New York Supreme Court Reports

The following opinion was delivered at the speeial term. Scrugham, J. It is objected, that awards have been made for the land which by the act is to be set apart and used for court yards. The right of the owner to use this land for any other purpose is taken from him, and some compensation should be made to him for this deprivation.

The following opinion was delivered at the special term. Scrugham, J. It is provided by the act of April 26,1861, amending the act to widen and improve Bushwick Avenue, and other streets, in the city of Brooklyn, passed April 14, 1860, that “ where blocks shall be formed by reason of the widening or extending of any of the streets or avenues authorized to be-improved by that act, (among which are the streets in question,) having an angle of less than forty degrees, the board…

Writ of error to the Court of General Sessions of the city and county of Hew York. The plaintiff in error, Frank Ferris, was indicted in the court below in February, I860, for the murder of his wife, Mary Ferris, on the 9th day of September, 1864.

<p>A right of action to recover damages for the fraudulent misapplication or conversion of property by an officer or agent of a banking association, is assignable, and an action can be maintained by the assignee.</p> <p>Such a right of action is assignable when the wrong is committed against a banking association, equally as if the property of an individual was thus misapplied or converted.</p> <p>The attribute of assignability is not confined to rights of action belonging to natural persons; it extends with equal effect to those belonging to artificial persons.</p>

<p>An action against a common carrier, to recover damages for the loss by negligence of goods entrusted to his care, is not an action arising on contract, within the meaning of section 227 of the Code of Procedure, authorizing the issuing of an attachment “ in an action arising on contract for the recovery of money only."</p>

THIS cause comes before this court upon exceptions ordered to be heard at general term in the first instance. It is an action for malicious prosecution. The plaintiff was arrested, indicted, and tried in the district court of the United States, upon a charge of having, on the 23d day of November, 1863, at .Windham, Greene county, induced one Shears to escape from the custody of the defendant, who had him under arrest as a deserter from the United States army.

THIS is a motion for judgment on a verdict taken subject to the opinion of the court at general term. The defendants were assessors of the town of West Seneca, in the county of Brie, in the year 1864. They assessed the plaintiff as a taxable inhabitant of that town for both real and. personal property.

THIS is. an appeal from a judgment rendered in favor of the plaintiff upon the report of a referee. The action was brought to recover the possession of lot Ho. 35, Franklin street, in the city of Albany. The material facts are stated in the following opinion.

THIS is a motion for a new trial, upon a case. The action is for slander, and the complaint alleges in substance that the defendant charged the plaintiff with the crime of larceny. A verdict was rendered in favor of the plaintiff for $130. The action was tried before Justice Hogeboom at the Ulster circuit, in March, 1865. The exceptions were ordered to be heard in the first instance at general term.

PPEAL from a judgment ordered at the circuit, on a trial before the court without a jury. The action was brought to recover the possession of real estate.

rpHIg action was brought to recover damages for the wrong-JL ful taking and conversion of certain personal property belonging to the plaintiff. The defendants justified the taking under an execution issued upon a judgment obtained in favor of the defendants against the plaintiff upon an attachment issued against him in a justice’s court. The plaintiff claimed that the attachment proceedings were void.

THIS action was originally commenced in a justice’s court, for trespass, for wrongfully entering upon lands of the plaintiff, in the town of Conesville, in the county of Schoharie, and wrongfully taking and carrying away a quantity of hay. The answer set up title to the premises in William A. Bay, John W. Bay and William Bay, and claimed that the defendant entered under the direction and license of John W. Bay, William A, Bay and William Bay, or their agent.

The action was brought for the neglect and refusal of the defendant as a constable of the town of Eondout, in the county of Ulster, to levy an attachment and execution issued by a justice of the peace of the said county, in favor of the plaintiff, upon the property of one James Kelly, whereby the plaintiff’s debt against said Kelly was lost.

OB the 18th of April, 1863, the plaintiff and defendant were partners in conducting the Merchants’ Hotel, in Albany, when, some difficulty occurring between them, the plaintiff, by a verbal agreement, purchased the defendant’s interest therein for $4000, paying him $500 down.

THIS action was brought to recover $516.84, as damages, for the loss of certain goods received by the defendant, as a common carrier, from the plaintiffs, at Boston, to be transported to the west, and which were destroyed by fire, at Bast Albany, on the 5th of July, 1861. The goods in question were delivered on the 26th day of June, 1861, at the depot of the Western railroad, in Boston, for which a receipt was given by the railroad company.

THIS was an action brought by the plaintiff to recover damages for the arrest and imprisonment of the plaintiff by the defendants while they were provost marshal and assistant provost marshal of the eighteenth district of New York. The cause was tried at the Schenectady circuit in April, 1866, before a judge and a jury.

JEBE MI AH E. VAN CLEEK procured the defendant to make a note for §150 for his accommodation, payable to the order of the defendant, at the Merchants’ Bank, two months after date, and dated July 11, 1858. Van Cleek transferred the note by indorsement to the plaintiff to pay a prior indebtedness from Van Cleek to the plaintiff with full knowledge on the part of the plaintiff that it was accommodation paper.

<p>THIS was an action to recover damages occasioned by a collision of boats on the Erie canal, whereby the plain- ’ tiff lost a horse by drowning. The collision occurred near Schenectady, in July 1862. There was a piece of iron on the defendant’s boat running down the stern and under the boat, called a shoe, which had become loose so as to catch the tow lines of other passing boats. The plaintiff’s tow line caught upon this shoe, which caused the collision. The referee found for the plaintiff upon the question of negligence, and assessed the value of the horse at $100, to which amount he added $11.60 interest from the time of the accident to the date of his report. The referee also allowed the plaintiff $10 for the expense of hiring another horse to tow his boat to Borne.</p> <p>The defendant made a case and exceptions and appealed from the judgment to this court. The questions litigated on the trial are sufficiently stated in the opinion of the court.</p>

THIS was an action of ejectment. One Henry D. Eolph, in 1850, purchased the premises of Jared House, and gave back his mortgage for $1200, part of the purchase money. House assigned the mortgage to the plaintiff, Lewis Campbell, in January, 1863 ; - there being due and unpaid on it the sum of about $500. Eolph sold the premises by an executory contract of sale to the defendant, Jefferson L. Swan, in January, 1852.

The action was ejectment to recover possession of certain premises in Salina. Nelson Phillips, as owner of the premises, entered into an agreement to sell them to the defendant in June, 1857, hy an executory contract of sale.

After the action had been partly tried, Charles Moore, one of the plaintiffs, died, and Ira H. Moore was, by order of the court, substituted in his place. The action was again brought to trial before the same referee, when the defendant objected to proceeding with the trial until a new referee should be appointed ; which objection was overruled and the trial proceeded as if no change of parties had occurred. The reference ■ was ordered, on consent of the original parties.

<p>APPEAL from the order of a county court refusing to set aside a judgment entered up in that court on the report of a referee, in an action commenced in a justice’s court, and brought into the county court by appeal, and referred by the latter court upon the written stipulation of the parties.</p>

THIS action was brought by the plaintiff, a common carrier, for freight on a lot of wines, olive oil, &c. from Bordeaux to Hew York. The defendant set up a counter claim for loss by leakage of wine from some of the casks. It was proved that the wine was properly stowed and dunnaged. That the stowage was by the defendant’s men, and the port warden proved that when he examined the cargo in this port he found it well stowed and dunnaged.

THIS is an appeal by the plaintiff from an order made by Mr. Justice Barnard, removing this cause for trial to the circuit court of the United States for the southern district of Hew York.

THIS action was brought against the defendants, as owners of the American ship Forrest, for goods furnished to the ship, and money paid for premiums of insurance, in London, on the order of the captain.

<p>APPEAL from an order made at a special term, denying a motion to vacate an ex parte order for the examination of Greorge P. Bayard, under section 236 of the Code.</p>

THIS action was brought against the defendant as indorser of a promissory note made by Townsend & Gray, dated March 9, 1857, for $200, payable three months after date, to the order of the defendant, and indorsed by him for the accommodation of the makers.

11HE relators were incorporated under a statute of the state . of New York, for the transportation of passengers and of freight between New York and Brazil. The capital of the company is invested in steamships employed for this purpose. The office of the company was located in the city of New York. The tax commissioners assessed the relators on the whole amount of their capital stock.

THIS was an action to recover the possession df nine hales of cotton of which the plaintiff claimed to he the owner.

The relator is a corporation, organized under the laws of the state, to construct and operate a railroad between the city of Buffalo and the western line of this state, along the shore of Lake Erie. Its road extends and is operated through the town of Hamburg, a distance of 9 29-100 miles.

<p>Where, upon an application by an administrator, to the surrogate, for leave to mortgage or sell the real estate of the intestate, a claim of the respondent, against the estate, which was disputed by the administrator, was tried by the surrogate, and after several witnesses had testified to conversations between the intestate and the claimant, which established a “ transaction ” between them, in relation to the subject matter of the controversy; Held that the claimant could not be examined as a witness to prove that no such conversations had occurred—that no such transactions had taken place; such testimony being “ in respect to a transaction had personally between the deceased person and the witness.”</p>

This action was brought before a justice of the peace of • Ulster county, by summons, in which the plaintiff claimed damages to the amount of two hundred dollars or under. Upon the return of the summons the defendant appeared and objected to the summons upon the ground that it was “ lacking revenue stamps, said summons claiming over one hundred dollars.’* The summons had no stamp upon it, and the justice overruled the objection.

PPEÁL from an order made at a special term granting to the defendant, Benjamin 0. Hoornbeck, a new trial, upon the ground of surprise.

THIS is an appeal from the sentence or decree of the Surrogate of Yates county, refusing to admit to probate a paper writing propounded as the last will and testament of William Baskin, deceased. The deceased died the 7th day of January, 1866, at the age of eighty-nine years, and the will, bore date the 1st day of December, 1865.

Prior to the year 1838, Charles 0. Handy, William Sinclair and Silas Butler, were the owners as tenants in common of a large tract of land, embracing the premis.es in question. In 1838, Silas Butler being then deceased, a suit was commenced in the Court of Chancery by Handy and Sinclair against the heirs of Silas Butler, and an actual partition made among the several parties to the suit.

APPEAL by the defendant from a judgment ordered at a special term, on a trial before a justice of the court without a jury.

The action was for ah alleged libel published in the New York Herald, of which the defendant is the proprietor. It is contained in a letter from the widow of a Colonel Kimball, which was Tm^sfcftdin that newspaper.

<p>The defendants received from the plaintiffs, for collection, a draft drawn by a bank upon the Ohio Life and Trust Company, and on presenting the same to the company, at its office in New York, they received in payment the check of the trust company upon a bank, and surrendered the draft. .The defendants neglected to present the check of the trust company on the day they received it, and before banking hours of the next business day the trust company suspended payment, and its check was dishonored, ■ on presentation. AWifithat the defendants having Surrendered the draft, assumed the responsibility of taking the check of the drawee in payment. And that the existence of a custom, in the city of New York, among business men, to take the checks of the trust company without certification, in the same manner as bank checks, afforded no defense to an action by the plaintiffs to recover •the amount of the draft. . ......</p>

<p>A conveyance made to children, for love and affection, is not fraudulent or void against subsequent creditors if, at the time of the conveyance, the grantor had sufficient property, otherwise, to pay then subsisting debts.</p> <p>Such a conveyance would be void as to existing creditors at the date of the conveyance, if their debts were not otherwise paid.</p> <p>It is not necessary that the grantee should be a participator in the fraud, to avoid the deed. Though he may have received the conveyance honestly, and in ignorance of the fraud, the conveyance may be void.</p> <p>If the grantee, without knowledge of the intended fraud, becomes the purchaser for value, he should be protected, although the grantor acted from fraudulent motives.</p> <p>A grant made without other consideration than love and affection cannot be set aside in favor of creditors not being such until two years after the conveyance ; unless the transaction was fraudulent as between the parties, and made to defraud subsequent creditors.</p> <p>Where the facts, as stated in the plaintiffs’ opening, were that the conveyance sought to be set aside was made ■ by the grantor, to her infant children, in 1861; that A. and M. were creditors of the grantor, at the time of the conveyance, and as such had obtained a judgment declaring the conveyance void as to them; that the indebtedness of the grantor, to the plaintiff, did not exist until the close of 1863; and there was no allegation of insolvency, other than as to A. and M., and none that it continued until the debt to the plaintiffs was contracted; Held that the judge properly dismissed the complaint.</p> <p>Held, also, that the plaintiffs should have shown either that their claim was for a subsisting indebtedness, or that the conveyance was made with intent to defraud subsequent creditors, which was to be inferred from the proof of fraudulent intent on the part of the grantees as well as of the grantors,</p>

11HIS action was brought to recover for publishing the pro- . ceedings of the common council, and reports of the city inspector, amounting to twenty-two hundred and thirty-eight dollars. The defendants, in their answer, admit that the plaintiffs did publish the proceedings of the common council, and that such publication was worth the sum of seventeen hundred and twenty-four dollars.

1THIS was an action upon a bond given by Sidney Allen, . Alvah Phelps, Jacob Loomis and Albert Clark, for the faithful administration by Allen and Phelps, of the personal estate of an intestate, Nahum Allen, deceased. It was tried before H. W. Eobinson, referee, on the 7th day of October, 1864. Clark was the only defendant who appeared.

THIS was an action upon certain drafts discounted by the plaintiff for the defendant. The defense was usury. The answer alleged that the plaintiff discounted the drafts at an. usurious rate of interest, contrary to the statute in such case, made and provided, taking from the defendant the sum of $15 for the time they had to run; though it did not, in express terms, state that the agreement was intentionally usurious.

<p>OWEN O’CONNOR, the father, sued out a writ of habeas corpus, in December, 1866, directed to Major General Butterfield, superintendent of the general recruiting service of the United States, commanding him to produce the body of John O’Connor, appearing by the petition of the said Owen to be his son, enlisted into the service shortly before that time, under the age of twenty-one years ; the said Owen being entitled to the custody and services of his said son. General Butterfield returned, to the said writ, that the said John had been regularly enlisted into the army; and he annexed the enlistment papers of the said John, whereby it appeared that he enlisted at Boston, in the state of Massachusetts, December 12, 1866 ; that he was then of the age of twenty-two years, born at Weymouth, Mass. ; and that he was by occupation a laborer; to which statement he made oath on the 13th of December, 1866, before a lieutenant of the U. S. Artillery, who also certified to his inspection of the recruit; that he was sober, when enlisted ; that to the best of his belief the recruit was of lawful age ; and that in accepting him the officer had observed the regulations governing the recruiting service. General Butterfield also returned that in pursuance of the directions of the judge advocate general of the army, a copy of which in writing he also annexed, it was not his duty to produce the said recruit in court. He further declared that his denial of the jurisdiction of the court, and refusal to produce the recruit, was from a sense of official duty, and not from any disrespect or contempt of the court. At the hearing before the judge who granted the writ, the petitioner made oath that the recruit was born in Ireland, January, 1849, and that he would not be eighteen years of age until the 6th of January, 1867, and that he was not eighteen years of age at the time of his enlistment, and was supported by his father, the petitioner, for whom he worked, and to whom he owed service ; that he had not sold his service, or consented to his enlistment. This evidence was not disputed, except by the introduction of the said enlistment papers, and the oath of the recruit, therein contained ; but its admissibility was objected on behalf of government.</p> <p>The judge thereupon denied the motion to discharge the prisoner and the prisoner appealed.</p>

<p>THIS action is founded upon a promissory note for $315, dated June 14, 1861, made by the defendant Ellithorpe, to the order of the defendant Marsh, and indorsed by N. W. Seal, the other defendant. The plaintiffs, who were bankers, discounted the note for Nelson Barstow, in the usual course of their banking business. The defense was usury. Marsh was the only defendant who appeared in the action. On the trial at the circuit, the defendant moved that the case go off for the term, on the ground that it was irregularly put on the calendar, without any notice of trial being given to the defendant. The motion was denied, and an exception taken by the defendant. The jury found a verdict for the plaintiffs, for the amount of the note and interest, and the defendant Marsh appealed from the judgment entered thereon. The other material facts appear in the opinion of the court.</p>

THE plaintiffs held a bottomry bond on the ship Dreadnought, for moneys advanced in San Francisco, for repairs and supplies. This bond- pledged the ship and the personal responsibility of the captain. The money was payable within forty-eight hours after her arrival at her port of discharge.

<p>Where a juror on the trial of an indictment for murder, on being challenged for principal cause, stated that he had read a statement in the newspaper, of the homicide, but that although he had an impression that a homicide was committed, he had none as to the guilt or innocence of the prisoner; Held that the challenge was properly overruled.</p> <p>The prisoner then challenged the juror for favor, and demanded triers. These having been sworn, the juror again testified that he had read the statement in the newspaper, without any impression remaining on his mind, of the guilt or innocence of the prisoner; that, “ it would require evidence, either the one way or the other, to make him convinced of the prisoner’s guilt or innocence.” The prisoner’s counsel requested the judge to charge that the challenge was well taken, as matter of law. The judge declined so to do, and submitted the question of the impartiality of the juror to the triers. Held there was no error in this; and that it was properly given to the triers to decide that question.</p> <p>Another juror, being challenged for principal cause, testified that he had conscientious scruples in finding a verdict where the penalty was death; but that his scruples would not prevent him from finding a verdict of guilty of murder, where the evidence required him to do it; Held that the juror was properly set aside as incompetent.</p> <p>Where a juror states that he has conscientious scruples against finding a verdict involving the penalty of death, he is directly within the inhibition of the statute, as to jurors serving who hold such scruples.</p> <p>When a juror has conscientious scruples in finding such a verdict, his competency is not established or restored by a statement that he would render a verdict of guilty, if the evidence required it.</p> <p>A juror, being challenged by the prisoner’s counsel for favor, testified that he thought he read or heard the statement of the homicide, published in the paper, and believed that a homicide was committed by the person charged in the paper, but it left no impression on his mind, as to the guilt or innocence of the party. Held that the challenge was properly overruled; the result of the evidence being that there was no impression on the juror’s mind, as to the guilt or innocence of the prisoner; the person charged in the paper not being identified as the prisoner.</p> <p>An indictment charged the prisoner, in one count, with the murder of Lucy McLaughlin, and in another with the murder of Kate Smith. The counsel for the prisoner moved the court that the prosecution be required to elect upon which count the prisoner should be tried. The court reserved the question. It was proved that the deceased was usually known by the name of Kate Smith, but there was some evidence tending to show that her name Was Lucy McLaughlin. At the close of the evidence the prosecution entered a nolle prosequi as to the count charging the murder of Lucy McLaughlin, and the jury found the prisoner guilty, upon the other count, of the murder of Kate Smith. Held that there was no error in this.</p> <p>Confessions are excluded only when they are made under circumstances that tend to produce doubt as to their truth, arising from the operation of hope or fear in the mind of the prisoner. When made under the effect of threats, or the sanction of an oath, without the proper caution being given that he n.eed not answer, and that what he says may be used against him, and some other circumstances, the admissions are excluded, as matters of law.</p> <p>But where the admissions are purely voluntary, they are to be submitted to the jury for what they may be deemed worth.</p> <p>?A non professional witness was asked for his opinion as to the mental condition of the prisoner, at the time of the occurrence. His opinion was excluded. Held that the ruling was correct.</p> <p>When insanity is interposed as a defense, it is not incumbent on the people to establish the sanity of the prisoner at the time of the commission of the offense, by affirmative evidence.</p> <p>On a trial for murder the prisoner has no right to ask the court to charge the jury that they may infer, from the presence of intoxication, the absence of premeditation.</p> <p>A charge that “ if there be sufficient deliberation to form a design to take life, and to put that design into execution by destroying life, there is sufficient deliberation to constitute murder, no matter whether the design be formed at the instant of striking the fatal blow, or whether it be contemplated for months,” is a very sufficient definition of murder in the first degree, when occurring with premeditation.</p> <p>Delirium tremens, like insanity, if it deprives one of the capacity to know what he is doing, or of knowing right from wrong, saves him from any criminal responsibility for his acts.</p>

<p>ACTION upon a promissory note, against the defendant Bentley, as indorser, of which the following is a copy, viz:</p> <p>“ $172.78. One year after date, I promise to pay to the order of Buckley, Sheldon & Co. one hundred and seventy-two dollars and seventy-eight cents, for value received. Dated Butternuts, Sept. 9, 1859.</p> <p>(Signed) William D. Babcock.” (Indorsed on the back,) “William C. Bentley.”</p> <p>In July, 1860, the indorser wrote over his signature as follows : “Notice.of protest waived by me.” The plaintiffs made no demand of payment of the note of the maker, at maturity, and took no steps to charge the indorser.</p> <p>The cause was first tried at the Otsego circuit in December, 1863, before Justice Campbell, without a jury, who ordered judgment for the plaintiff. Bentley appealed to the general .term, which reversed the judgment, and ordered a new trial. (See 42 Barb. 646.)</p> <p>On the second trial, in December, 1865, before Justice Mason and a jury, substantially the same facts were proven as on the first trial. The counsel for the plaintiffs also offered to prove the conversation between the plaintiff Buckley and the defendant Bentley, at the time Bentley wrote the words “ Notice of protest waived by me” over his signature, on the back of the note, and that it was then agreed that the plaintiffs need not protest the note, or make any demand of payment of the maker, when it became due. The defendants’ counsel objected on the grounds: 1st. The agreement between the parties was reduced to writing, and paroJ evidence is incompetent and improper to vary, or enlarge, or contradict the writing. 2. Parol evidence of what occurred at the time of making the writing is incompetent, improper, and immaterial. 3d. There is no ambiguity in the language used, and parol evidence is inadmissible and incompetent to vary or explain the writing. 4th. There is no allegation in the complaint of any other than the written waiver, indorsed on the note. The court overruled the objection, and admitted the evidence, to which the defendant’s counsel excepted. The plaintiff Buckley then testified as follows : “ I have a distinct recollection of the language used by Mr. Bentley. He said : ‘ I am on Babcock’s paper for $700 or $800 ; he has failed and I am going to lose 5 there is no use of sending it forward for protest.’ He also said; ‘ I cannot pay this note when due, and therefore will say to you, that it is not necessary to protest it when due, or to send it out there to demand payment of the maker.’ I told him that as the note would not be paid at "maturity, it better not be protested, and.he assented.” Cross-examined. “ This conversation was at the same time, and before he wrote the waiver on the note. We had no further talk after he wrote the waiver.” This tetimony was contradicted by the defendant Bentley; and. other evidence was given on the trial, not material to the question upon which the case turned.-</p> <p>The defendants’ counsel asked the court to direct a verdict in favor of ¿he defendant Bentley, which the court declined to do, and he excepted.</p> <p>The court charged the jury that as it appeared from the evidence that the defendant Bentley had no knowledge of the failure or omission to demand payment of the note at maturity, of the maker, when the indorsement of $25 was made on the note, nor when he wrote the letter of October 7th, 1861, alluding thereto, such indorsement or application of the $25, was not a waiver by Bentley of such failure or omission of demand or protest, on the part of the plaintiffs ; and upon that branch of the case the plaintiffs could not recover.</p> <p>The court further charged the jury that if the defendant Bentley said to Mr. Buckley in their conversation at the time he made the written waiver on the note, that the plaintiffs need not forward the note at maturity for protest, or that he would waive the demand of payment at maturity, then the plaintiffs could recover against him upon his indorsement, in this action. To which the defendant’s counsel excepted.</p> <p>The jury rendered a verdict in favor of the plaintiffs for $219.62, the balance due upon the note, The court stayed proceedings upon the verdict, and ordered the defendant’s exceptions to be heard at the general term, in the first instance.</p>

THIS is a proceeding, in connection with four others, under an act of the legislature, entitled “An act for the improvement of the Brooklyn Heights,” passed April 17,1866, to take the lands which, in the language of the act, “ would he in Middagh street, upon the opening thereof to Furman street, and lying between Columbia and said Furman street,” for a public park.

The action was commenced in July, 1862; The complaint alleges that the plaintiff was the owner of a draft, dated July 7th, 1856, for $884, drawn by Samuel S. Whallon, canal commissioner, on the auditor of the canal department; that on or about the 24th of July, 1856, the plaintiff left. this draft with the defendant for collection; that the defendant collected the draft and has never paid the same to the plaintiff.

THIS is an appeal from the final decree of the surrogate of Monroe county, settling the accounts of Margaret Wilcox, as administratrix of Milton P. Wilcox, deceased, in which her rights and duties as such administratrix, and as heir at law of her father, Isaac B. Cole, and as legatee in his will named, are involved, and were necessarily passed upon by the surrogate.

PPEAL by the defendant from a judgment entered on the verdict of a jury. The action was brought to recover the sum of $200, the consideration, agreed to be paid by the defendant on the purchase of an interest in real estate.

<p>The general power of amendment, given to courts of record in sections 172 and 173 of the Code, does not belong to justices’ courts; nor do any of the general provisions in relation to the amendment of process and pleadings, contained in other parts of the Code and in the Revised Statutes, apply to justice’s courts.</p> <p>- "Where the summons, in a justice’s court, is sued out and served upon two defendants, the name of one of them cannot be dropped, in the subsequent proceedings, without leave of the court. But if the justice permits the plaintiff to declare against one of two joint defendants, only, he will be deemed to have allowed an amendment of the summons, for that purpose, if he had any power to do so.</p> <p>A justice of the peace has no power to grant an amendment allowing the plaintiff to strike out the name of a defendant from the summons, after service thereof, and to proceed to trial and judgment against the other defendant, alone.</p>

PPEAL from a judgment entered on the verdict of a jury, on the trial of an issue of fact, in the Wayne county court. The case came into the county court on appeal from a justice’s court, where the plaintiff recovered a judgment for $160, damages and costs.

THE action was brought to set aside several deeds of conveyance of real estate, by the defendants, Morrell S. Fitch, and Laura his wife, to the defendant Mrs. Masters; a chattel mortgage by the said Morrell S. Fitch, to the said Elorsey S. Masters ; a transfer of stock in the Auburn Gas Company, by the said Morrell S. Fitch to his wife, and a subsequent transfer thereof'by her to the defendant James C. Reed ; and transfers to either of the other defendants-; and a general…

APPEAL by the Long Island Railroad Company from judgments entered in the above actions, at special term. The actions were tried together.

IN February, 1865, McDougall the plaintiff made a bet with the defendant Walling, that Jefferson Davis’ government would have their commissioners in Washington within a fortnight to negotiate a peace. If the southern commissioners should not be in Washington in a fortnight, McDougall the plaintiff should lose the stake of $100, and if such commissioners should be in Washington within that time, the defendant Walling should lose his $100.

THIS is an appeal from a judgment against the defendants, the Second Avenue Railroad Company, for $246,791.93, entered herein on the 28th day of June, upon the report of Hon. Benjamin W. Bonney, referee, dated 7th June, 1866, and upon the findings of fact and of law in said report contained.

APPEAL by the defendants from a judgment entered upon the verdict of a jury. The plaintiff, on 24th March, 1863, through a broker, sold to the defendants two boat loads western mixed corn in Barber’s stores, Olinton wharf, ex Spencer and Galt, at eighty-nine cents per bushel in store No. 1, bins 3, 4, 5.

THIS action was brought upon a contract made by the defendant with the plaintiff, to deliver to him four hundred cords of white pine wood. The contract is as follows : “New Yobk, Nov. 29, 1862.

<p>EXCEPTIONS ordered to be heard at the general term, in the first instance.</p>

Daniel Angevine died on the 14th day of March, 1864, leaving him surviving the . respondent who claimed to be his widow, and three children. The children at the time of his death were respectively aged eight, six, and three years old, who are his only next of kin, and heirs at law. It was claimed that Daniel Angevine was married to the respondent at the city of New York, December 16, 1849 ; the ceremony of marriage being performed by the Eev.

<p>A policy, of insurance against fire purported to cover “ merchandise hazardous, not hazardous, and extra hazardous, their own or held by them in trust or on commission dr joint account; &c. in all or any of the brick ór stone warehouses, and while in transitu, or on any of the streets, yards or wharves in the cities of New York, Brooklyn or Jersy City, and unless under the protection of a marine policy, subject to average* clause annexed.” To this policy was annexed this provision: “It is at the'same time agreed that if any specific' parcel of goods included in the’ terms of 'this policy, "or such goods in any specified building or buildings, place or places,, within the limits of this insurance, shall, at the time of any fire, be insured in this or any other office, this policy shall not extend to cover the same, excepting only so far as relates to any excess' of value beyond the amount of such specific insurance or insurances, which said excess is declared to be under the protection of this policy and subject to average as aforesaid.” ’</p> <p>The fire occurred at one of the places where the insured had merchandise, to the value of $386,026. They had a specific insurance on the goods in that store to $324,000. ' The loss and damage occasioned by the fire was $274,192, In án action upon the policy, to recover of the insurers a pro rata amount of the loss jn proportion to the amount insured;</p> <p>Held that the true interpretation of the policy .was .that if a loss occurred, and the specific insurance exceeded the loss, the party insured was protected thereby, and had no claim under the general policy. That if the specific insurance fell short of the loss, the insured might recover on' the general policy, for such excess.</p> <p>Held, also, that the fact that the whole loss was covered by, and to be paid by, the specific insurance, established a defense, under the policy, that there was no loss chargeable thereon.</p>

<p>The affidavit by which summary proceedings for the removal of a tenant are initiated, need not state the daté, or duration of the" lease.</p> <p>The facts stated in such affidavit, and not denied by the affidavit of the tenant, aré admitted, ■ ‘. ¡ ■ '</p> <p>"Where the facts put in issue are the ownership of the premises, and the hiring thereof to the tenant, proof of a conveyance to the landlord, and the payment "of rent to him by the tenant, establishes both of these issues against 1 ’ the1 tenant.' ' ' : • "</p> <p>If the nature-of the hiring was such that the landlord could not take the remedy by summary proceedings, the tenant must set up that defense.</p> <p>The statute requiring that upon summary proceedings an officer shall be sworn to keep" the jury, &c. "is directory in that respect; and though the return does not show that an officer was sworn, the court cannot infer that the jury = ■ were not kept by an officer, or that he was not sworn. ' . .</p> <p>It being the duty of the magistrate to swear an officer, the intendment of the law, in the absence of proof to the contrary, is that he performed his duty.</p>

THIS action was brought upon an instrument alleged tó be a promissory note, made by the defendant Richmond, and indorsed by the defendant Van Doren, and delivered to one Thomas Aitken; who afterwards, before maturity, delivered the sainé to the plaintiff. ' The instrument was as follows : . “ $2,500. , Hew ¥obk, Dee. 31st, 18U3, Twelve months after date, I promise:to pay to the order of O. W. Van Doren, the sum of two thousand five hundred dollars, value received, payable…

<p>APPEAL from an order dissolving an injunction restraining the defendant from manufacturing and selling a perfume called “ Sweet Opoponax of Mexico from selling any perfumery with that name ; from using the name in connection with any perfumery ; from using the plaintiffs’ label, or any imitation or counterfeit thereof; and from using the label now employed by the defendant, copies of which are set out in the complaint.</p>

THIS is an action upon a note which became outlawed June 15th, 1863. The defendant Blashfield was served with process December 29 th, 1863. He suffered default, and on the footing of the judgment entered against him, the defendant Hall was served with a summons to show cause why he should not be bound by the judgment, under the provisions of the Code relating to proceedings against joint debtors.

<p>THIS action is brought to recover on two policies of insurance on the bark Cora, and for the freight. .The policies were time policies. The policy on the vessel being for one year from the 19th of June, 1862, that, insuring the freight being for one year from the 20th of June, 1862.</p> <p>The policy on the vessel contained a warranty not to use the Min river, in China. The policy on the freight contained a warranty not to use the Min river higher than the anchorage below the Kimpai pass. The bark sailed on the 29th of March, 1863, from Shanghai to New Chang at the mouth of the Lian Ho river in the northern part of China. In entering Lian Ho river, the vessel was damaged, but the injuries were not such as to make her unseaworthy. On the 4th of May, 1863, the bark took in a cargo for Fu-chau-fu, a port on the Min. river and sailed therefor. On leaving New Chang at the mouth of the Lian Ho river, she sustained more serious injury. After she left the Lian Ho river, she sustained no further disaster. On the 13th of June, 1863, she arrived at Pagoda anchorage, ten miles above Kimpai pass on the Min river. Upon a survey held there, it was found that she was badly injured, and it was decided to dismantle and sell the vessel.</p> <p>It was not claimed that any damage was done to the vessel in the Min river, but it was admitted that the injuries sustained were caused at a place common to a voyage to and from New Chang from and to any other port than Fu-chaufu or the Min river.</p> <p>The defendants moved for a nonsuit, upon the ground that the warranty in regard to the use of the Min river," in each policy, having been violated, the plaintiffs could not recover. The court denied the motion.</p> <p>' The defendants requested the court to charge the jury the same as to the effect of entering the Min river, and that the defendants were thereby discharged from all liability under the policy, which was also refused, and the defendants excepted. The jury found a verdict for the plaintiff.</p>

THIS was an appeal, by the defendants, from a judgment . rendered at the circuit, on a trial by the court without a jury. The opinion states the facts.

<p>The mere fact that a check, paid out by a member of a firm, is in the name of the firm, is not sufficient notice to tlie parties receiving it that it is partnership property; nor enough to put them on inquiry before crediting the amount to the private account of the partner of whom they receive it. *</p> <p>The plaintiffs employed the defendants, who were brokers, to sell gold for them to the amount of §30,000. They had not the gold to deliver, but it was intended to sell it short, in expectation of a fall. The defendants made the sale, and notified the plaintiffs.' A deposit was made with them, in the check of the plaintiffs’ firm, for §15,700, which the plaintiffs alleged was to be placed to their credit. Subsequently, the defendants gave notice to the plaintiffs that they would require some money the next day; and §4000 was paid them. The defendants afterwards gave notice that unless they had a further margin, they should close out the gold in an hour. They then bought the gold for the plaintiffs, at a large loss. The plaintiffs denied their right to do so, and repudiated the transaction, and brought, an action to recover back the moneys deposited.</p> <p>•Held that the defendants were not bound to continue liable for the plaintiffs’ contracts for an indefinite period. That if the margin was deficient they might have closed the transaction without notice, by purchasing the gold on the plaintiffs’ account; but if they were unwilling to continue liable even with the margin, they could give notice to that effect, and then, if after a reasonable notice, the plaintiffs did not comply, they could act in . the same way. . •</p> <p>In such a transaction, no notice is necessary of the time and place at which ' the brokers will make the purchase. That rule only applies to a pledge of ■ stocks or other securities for the payment of a debt.</p>

<p>THE plaintiffs, as receivers of the Columbian Insurance Company, an insolvent corporation, sue the defendants, some of whom are stockholders, and some are creditors of that company, to recover from the stockholders a dividend declared on its capital stock and received by them. It is averred that such dividend impaired the capital, and that some of the defendants, as creditors, are suing the stockholders to recover from them such dividends. The complaint asks for an injunction against the creditors, and a judgment against the stockholders for the dividends received. The present case arises on a demurrer of some of the defendants, to the com- > plaint.' The demurrer was overruled, and the defendants appealed.</p>

<p>jjlRBOB to the New York general sessions.</p>

THE defendants insured the schooner Caspian for one year, from 9th of September, 1864. The policy contained a warranty not to use ports in the British North American provinces, except between the 15th day of May and 15th day of August. On the 20th September, 1864, the schooner sailed from Boston, bound for Lingan, in Cape Breton, Nova Scotia, one of the British North American provinces, for a cargo of coals.

<p>When a foreign corporation, by its officers, comes within this state, it becomes subject to the laws of the state, and to the process of the courts; and where such a corporation, by its officers, is guilty of a wrong, or commits a trespass, within the state, the corporation cannot escape the consequences of its illegal acts, by setting up that it holds its existence under a foreign government.</p> <p>Where a complaint in behalf of the people of this state against a foreign corporation, shows a claim of title to, and jurisdiction over, certain waters, by the plaintiffs; that the defendants have taken possession, and are by their officers still in possession, and without authority, this is sufficient to give jurisdiction, if the process can be served on the defendant. If there is an improper service, that must be remedied by motion.</p> <p>The grant to the state of New York, by the third article of the compact or treaty between that state and the state of New Jersey, made in 1833, of exclusive jurisdiction over all the waters of the bay of New York, and all the waters of the Hudson river, and of and over the lands covered by said waters, to low water mark on the New Jersey shore, subject to the right of property therein granted to New Jersey, conferred upon the state of New York full power and authority to preserve the river and bay from injury by encroachments from strangers acting without authority.</p> <p>The jurisdiction given to the state of New York, by that article, is not the mere right to serve process either civil or criminal, but is the jurisdiction granted by one sovereign power to another; and in that sense it means the right of exercising authority—of governing and controlling.</p> <p>The exclusive jurisdiction in the state of New York, over the waters of the Hudson river, and over the land under the water, gives a right of property therein, sufficient to maintain an action for an encroachment thereon, by erecting docks and piers connected with the main land; notwithstanding the fee of a portion of the land is vested in the state of New Jersey.</p> <p>Where, in an action brought by the people of the state of New York against a foreign railroad corporation, it appeared from the pleadings that the defendants had taken possession of a tract of land under water, in the bay of New York, and the Hudson river, displaced the water by filling in the same to the extent of eight hundred acres, in a portion of the bay and river over which the state of New York has exclusive jurisdiction, and were engaged in filling in to a larger extent, and would cause serious damage to the harbor of New York; and that they were so doing without any right, and without any grant or permission from the plaintiffs; and by their admissions the defendants appeared as simple wrongdoers and trespassers, committing a serious injury to the rights of property of the plaintiffs; Held that it was a proper case for restraining them, by injunction, from doing further wrong and damage, until it should appear that they had some right and authority for their proceedings.</p> <p>The boundaries of the state of New York extend to low water mark on the New Jersey shore; and the county of New York, on its western boundary, extends to the west bounds of the state.</p>

<p>A receipt, such as is usually given by express companies for goods delivered to them to be carried by express, is not an agreement within the meaning of the stamp act, requiring a stamp of five cents.</p> <p>It is a receipt for the property to be transported, and contains only a notice of the terms on which the company is willing to undertake the transportation. Such receipt is not subject to any stamp duty, but is excepted in the act of congress of 1865.</p> <p>Whether congress has the power to declare a contract void for the want of the ■proper stamp 1 Quiere.</p>

<p>Where a corporation is the defendant, the plaintiff cannot have an order for the examination of the defendant as a witness, by its president and secretary. The 390th and 391st sections of the Code refer to examination of parties not of the agents, officers or servants of parties to a suit. It was not the intention of the legislature to authorize the examination of a corporation as a witness. In an action for an accounting, it is premature to take the examination of witnesses until it is decided that the plaintiff is entitled to an accounting.</p>

11HIS was a case agreed upon without action, submitted for . • the -purpose of obtaining a decision as to the validity of a certain section incorporated into the tax law at the last session of the legislature, which the plaintiffs claim to be unconstitutional- and void-, and ask that the- defendants1 - be restrained from executing any of the powers; duties and privileges ’ conferred thereby. ; The act is entitled “An act to enable the board of supervisors of the county of…

The answer denied every allegetion in the complaint, and also set up as a separate defense that the property had been shipped to Liverpool, and bills of lading obtained, and bills of exchange drawn against the bills of lading. Upon the trial the cause was opened by the plaintiffs* counsel admitting the drawing of the bills, and the receipt of money upon them.

THE prisoner was tried in the court of general sessions, and was convicted of murder in the first degree. The evidence showed that the homicide took place in a shoemaker’s shop, in the basement of 46, Thompson street. There was nothing proven to show any previous ill feeling' between the prisoner and the deceased. The death was caused by stabbing, and witnesses in the street saw the prisoner in front of the deceased and making a motion with his hand.

<p>Where a parol agreement provided for the renting of premises for one month from the 1st of August, 1866, and for each successive month thereafter until the landlord should want the premises for his own use, whereupon the tenancy should expire; Held that under such an agreement a notice of thirty • days was not necessary to terminate the tenancy.</p> <p>The notice served by the landlord upon a tenant at will, to terminate his tenancy, takes effect in thirty days after the service; and the specification therein of a day on which the time will expire, which will be less than thirty days from the time of service, will not vitiate the notice.</p>

THE plaintiff is the third indorser,- and the ownér of a cer.tain bill of exchange, drawn upon and accepted by the defendant. The bill of exchange, on which this action is founded, is as follows : $218.67. “Nassau, N, P. November 19th, 1864. 'W. Higbie Smith, Esq., 171 Pearl street, New York. Sir: At one day’s sight, pay to the order of Messrs.

<p>An order denying a motion for a commitment for not obeying a mandamus is appealable.</p> <p>Where the alleged contempt is to be made out from contradictory affidavits, then the decision of the judge at chambers is conclusive; and if he is not satisfied as to the intent of the parties charged, the court, on appeal, would not reverse his decision. But where the contempt is not denied, or where an evasive excuse is offered, and the judge, notwithstanding, refuses to order a commitment, such an order may be appealed from, and relief may be had in the general term.</p>

THIS is an action for the purpose of having a marriage declared void, on the ground that a divorce was obtained against the defendant, by her former husband, for' adultery with this same plaintiff; that in the decree in which the divorce was ordered she was forbidden to marry again until her said husband should be dead ; and that in disobedience of this provision, she and the plaintiff in this action went to Jersey City, in the state of Hew Jersey, and were there married,…

nnHE question in this case was, whether an assignment of _L property in trust for the benefit of creditors, was properly acknowledged. The facts are stated in the opinion.

CASE agreed upon between the parties, and submitted tinder section 372 of the Code of Procedure. Patrick Oooney, late of Syracuse, died March 4th, 1863, leaving a will which is sufficiently set out in the opinion of the court, and leaving a widow and several children his heirs at law. He left real estate of the estimated value of over $30,000, which was subject to several mortgages, to the amount of $10,300.

In the spring of 1861, one Lucinda Earl agreed to sell and convey to the defendant a house and' lot in the city of Brooklyn, for the price of #10,500, upon which there was a mortgage for #5000, which the defendant was to assume as a part of the purchase money, and the residue #5,500, the defendant was to pay in ready made clothing. The defendant had been carrying on a large ready made clothing business in the city of New York for several years, at No. 363 Hudson street.

The action was brought by the plaintiff, as administrator, &c. of John Fulton, jun. deceased.

The action was brought to recover a balance in the hands of the defendants as stock brokers, left by the plaintiff as a margin for stock speculations, with interest. The balance claimed was $1249.19, alleged to have been in the hands of ■the defendants, on the 11th day of November, 1864.

THIS is an appeal from the judgment of the city court of Brooklyn, and from an order of the same court at special term, denying a motion for a new trial, made on the judge’s minutes. The action was brought to recover damages for the alleged refusal of the defendant to receive five hundred barrels of petroleum oil under a contract entered into at the city of New York, through a broker, by bought and sold notes, , one of which was as follows : “New York, Sept. 22d, 1863.

HEARING upon the return to an alternative writ of mandamus, after a trial of the issues of fact raised by the return. The relator asked for a writ of mandamus against Arthur Sinclair, Edward Buckley, John E. Wright, Isaac A. Biggs and James Gough, to compel them to induct him into the office of rector of the Church of the Atonement.

<p>MANDAMUS was issued to the county treasurer of Kings county, to compel him to give a certificate under the law of 1866, (Laws of 1866, ch. 418, vol. 1, p. 919,) for taxes paid in 1863 and 1864, on U. S. “certificates of indebtedness.” There was a return of the county treasurer, alleging that the taxes on “ Certificates of Indebtedness” mentioned in said writ of alternative mandamus, are not decided, and have not been judicially decided to have been illegally imposed or collected, nor has it been judicially decided that “ Certificates of Indebtedness” of the United States of America are exempt from taxation, and that taxes thereon have been illegally imposed and collected. And therefore that the investments of the relator in “ Certificates of Indebtedness” stated in said mandamus, are not within the purview of the act, (ch. 418, of the Laws of 1866;) and consequently he, the said county treasurer, had no authority in law to issue the certificates so, as aforesaid, refused to the relator.</p> <p>To this ret-uru the relator demurred. Joinder in demurrer ; and judgment for the respondent on demurrer, at special term, The relator appealed to the general term.</p>

THIS action was brought on a contract claimed to have been made by letter. The plaintiff was a brewer residing at Ilion, Herkimer county, and the defendant was a maltster, living at Clyde, Wayne county, and having a malt house at Weedsport. The parties lived about one hundred miles apart. On the 10th of June, 1864, the plaintiff addressed the following letter to the defendant: e: Ilion, June-10th, 1864. Mb.

<p>APPEAL from a judgment rendered in favor of the plaintiffs, at a special term, before Morgan, Justice. The material facts are stated in the opinion.</p>

THIS action was brought to restrain the defendants, styled petitioners, from proceeding to obtain an order of this court to rebuild the so called free bridge over the Seneca river, which separates said towns, under the statute referred to in the opinion of the' court. And to restrain the defendants, styled commissioners of highways, from erecting said bridge or executing any order that said petitioners may obtain secretly or otherwise, for that purpose.