Volume 48 — Howard's Practice Reports

<p> Marriage </p> <p>Marriage is established by and founded upon civil contract. It is not necessary to its validity that it'should be solemnized in any particular form, or that the intervention of any priest or magistrate is at all needed to make the contract binding.</p> <p>All that is necessary for its validity in this state is the deliberate consent of competent parties entering into a present agreement to take each other as man and wife.</p> <p>This contract may be proved like any other fact, either by positive evidence of the agreement, or by evidence from which it may be inferred.</p>

<p>Motion for judgment on account of the frivolousness of the answer.</p>

<p>Right of way—easement— dedication.</p> <p>Where the plaintiff has had full and undisturbed possession and enjoyment of an easement or right of way, accepted by the original grantee, and used by him and those claiming under him for over twenty years, over a strip of land laid out on a city map as a proposed street, and upon which his land is bounded to the-center, cannot sustain an action against an adjoining owner opposite, whose land is also bounded to the center of said proposed street, for a judgment requiring the defendant to remove all obstructions from one-half of said proposed street, and that the same . be considered as dedicated to the public and to be used as a public street.</p> <p>Especially where no acceptance by the public authorities has been received, and no request made for the opening of said street..</p>

Motion, made by a receiver in the action, to set aside a precept issued against him for non-payment on demand of the moneys directed to be paid by him by an order of the court of March 6,1873, upon the settlement of his account as receiver. (2 R. S., vol. 2; 535, § 4.) The order directed the payment, by the receiver, of the sum of $24,627.31, together with the sum of $520, referee’s fees, on the settlement of the receiver’s accounts, paid by one of the defendants.

<p>Appeal from judgment recovered on a verdict rendered at the circuit, and from order denying motion made upon the minutes for a new trial.</p>

<p> Liability for injuries caused by negligence of employe in prosecuting work. </p> <p>Where a railroad corporation lets the contract for building its entire road to a contractor for an agreed price, and the contractor sublets a portion of his contract to a sub-contractor, and during the progress of the work, through carelessness of the workmen in blasting rock, an injury is done the plaintiff, the railroad corporation is not liable therefor.</p> <p>Where the work in progress is lawful, and not a nuisance, the principal is not liable for the acts or negligence of another, unless the relation of master and servant or principal and agent exists between them.</p>

The defendant moves, upon a case and exceptions at the special term, that the verdict rendered at the last trial of this action be set aside, and a new trial granted.

<p> Jurisdiction—trespass on real estate—land out of the state. </p> <p>This court has no jurisdiction of an action brought against a railroad company organized in this state for negligently causing sparks and burning wood to be thrown on the plaintiff’s trees and plants, and setting fire to and burning and damaging the trees and plants growing on the lands of the plaintiff, in the state of New Jersey, and ruining and destroying them.</p> <p>Trespass for injuries to real estate or its corporeal hereditaments, cannot, be brought beyond the jurisdiction where the land is situated.</p>

Appeal by plaintiff from an order of a special- term of the supreme court refusing, on his application, to settle issues in the cause to be tried by a jury.

<p> Contributory negligence by a parent which pe'events recovery for an injury to his child. </p> <p>It is not the policy of the law to award damages where there has been any relaxation of parental duties and obligations toward a feeble or unprotected child, that may tend to encourage or induce neglect — still less when a parent by a direct act, exposes a child at a helpless or tender age to suffer injury, does the law favor the recovery of damages for an injury thus caused. ®</p>

<p> Answer stricken out as false amd sham. </p> <p>An answer containing a general or specific denial of each material allegation of the complaint controverted, duly verified, cannot be stricken out as sham.</p> <p>Although the language of section 152 of the Code states that “sham and irrelevant answers and defenses may be stricken out,” a general or specific denial of material allegations of the complaint may not be so disposed of.</p> <p>The admission by a defendant in his answer, of specific portions of a complaint, accompanied by a general denial of each and every other allegation, puts in issue such other allegations.</p> <p>As the order appealed from strikes out the entire answer, which contained a denial of material allegations of the complaint, it was unauthorized.</p>

Motion to set aside a sale of personal property sold under an execution. Judgment having been entered in favor of the plaintiff against the defendant, an appeal was taken thereupon to the general term. An undertaking tin the part of the defendant, under section 335 of the Code, was duly filed, but there was no undertaking given under section 334.

<p>Appeal from a judgment entered at the Westchester circuit.</p>

<p> Discharges from military service, when valid though names not on the muster rolls. </p> <p>When from circumstances it is to be inferred that two discharges from military service are genuine and authentic; and if they are it is evidence that the persons named in them were in the United States military service and entitled to the money payable under them, although for some reason their names did not appear on the muster roll of the company.</p>

<p> What a/re referable actions. </p> <p>In all cases arising on contract it must appear that the trial will require an examination of a long account in order to refer the action. The mere affidavit of the moving party that it will is not conclusive. The pleadings should also show this fact.</p>

An order was procured by the defendant, without notice, requiring the plaintiff to appear before a referee, and make an affidavit to be used by the defendant upon a motion to be made by him in this action. He did not make the affidavit; and a further order was made on notice to him to- appear and do so, and providing for his punishment in case of further disobedience on his part. The plaintiff then moved, to-vacate the first order, as irregular, and that motion was denied.

<p> Petition by the wife of an hdr at law to be made a pa/rty to proceedings W contest the probate of a will. </p> <p>The wife of an heir at law upon petition showing that herself and husband had not lived together for a number of years; that ill feeling existed between them; that she gave him no cause for separation or desertion from her, and that her husband had not personally attended for the purpose of contesting the probate of his deceased father's will, who had. recently died leaving a large estate; that there were good grounds of such contest, and asked permission, in her own behalf separately to oppose the admission of the will in order to protect her inchoate right of dower :</p> <p>Held, that no case could be found, at least none reported, in which a wife’s inchoate right of dower was determined as the sole ground of her right to apply for probate of a will under which her husband was a devisee or as the sole ground for permitting" a contest Of a will by her alone, in order to establish intestacy in case of no opposition to probate from her husband.</p> <p>In this case, however, the husband with other sons of the deceased appeared by counsel and made a vigorous contest to the probate of the will.</p>

<p> How issue of fact for divorce on the ground of adultery should he tried. </p> <p>An issue of fact in an action for a divorce from a marriage contract on the ground of adultery, must be tried by a jury, unless a jury trial be waived or a reference be ordered by the consent of both parties.</p>

<p> Stipulation to stay. </p> <p>A stipulation to stay proceedings under a judgment until the appeal from the same should he determined is to he interpreted reasonably, and an order to set aside execution issued in violation of the terms of such stipulation should he affirmed.</p>

<p> When shipper cmd others hound hy the terms of a hill of lading. </p> <p>A shipper is bound by the terms of the bill' of lading delivered to and accepted by him, at the time of the shipment of merchandise. Raterías become the contract of the parties.</p> <p>Where the shipper, after receipt of bills of lading, passes them to a third person and receives a loan of money upon them, it is a good reason for the conclusion that the shipper fully approved of their terms.</p> <p>Anil the party who makes the advances is also clearly bound by the terms of the bills. As much so as the purchaser of a bill of exchange is by the language of the draft he buys.</p>

This is an appeal from an order denying a motion made on the part of the appellants, to strike out certain portions of the answer of the defendants (respondents) as irrelevant and redundant. The action is for a libel, alleged to have been maliciously composed and published, of and concerning the plaintiffs, by the defendants.

<p> Effect of a mortgage authorizing whole sum to become due m case of non-payment of taxes. </p> <p>In an action to foreclose a mortgage, which by its terms provides that in case the taxes upon the mortgaged premises should remain unpaid on the first of February in any year that the whole principal sum secured to be paid by the mortgage should become due, the court has no more power to relieve a party against such a default than it would have if the terms of the mortgage made the principal money due and payable on default of payment of the interest according to the condition of the mortgage.</p>

<p>Public policy — applicable to principal and agent,</p> <p>Public policy, when it should .be considered as the policy of the law, for- bids an agent, by any underhand arrangement or device, from becoming the owner of his principal’s property employed in or about the agency. Where an arrangement was made and carried into effect, without the knowledge of the principal, that the principal’s property should be sold upon the execution issued in favor of the defendant and purchased by the agent, and the proceeds, after payment of the sheriff’s fees, which were fixed at the exorbitant sum of $300, paid over to the defendant, and that no restitution of it should be made in case of a reversal of the judgment:</p> <p>Held, that the principal could not be deprived of the right secured to him by the law of having the proceeds of his property sold under the execution restored to him on the reversal of the judgment upon which the execution issued.</p>

<p>Appeal from an order of the Otsego county court dismissing the appeal from a justice’s judgment, by the defendant, upon the ground that neither the defendant nor his attorney signed the notice at the bottom thereof. It appeared, however, that the attorney for the defendant indorsed upon the back of the notice the following words •: Notice of appeal; H. N. Warner, appellant’s attorney, Hartwick, N. Y.” By the affidavit used upon the motion to dismiss the appeal, it also appeared that the appeal was taken in good faith ; that the name of the appellant was not signed to the notice of appeal at its bottom by reason of a misapprehension of the person to whom they were given to serve, and that the notices were not returned by the plaintiff or justice upon whom they were served.</p>

<p>Judgment by default set aside—leave to answer given — appealable order.</p> <p>Where a receiver was appointed under the national bank currency act of the assets of an insolvent national bank — the defendant, and an action thereafter commenced against the defendant by service of summons upon the president, who for some reason or other refused to inform the receiver of the commencement of the action and a judgment was recovered by default :</p> <p>Subsequently, at the instance of the receiver, an order was procured for the plaintiff to show cause why the judgment should not be set aside and the defendant have leave to answer the complaint—which motion was heard and denied, with leave to renew, and subsequently was finally denied: Prom this order an appeal was taken to the general term, which was strenuously resisted on the ground among others, that the order being one of a discretionary nature, was not appealable:</p> <p>Beld, that it did not follow, because the order was discretionary, that it was not appealable; for the Code renders all orders appealable to the general term which either affect a substantial right; or are made in summary applications after judgment, and affect a substantial right. This right is not qualified by the fact that the order shall not be one of a discretionary character.</p>

<p> No convenants by implication as to real estate. </p> <p>The statute is explicit that no covenant shall he implied in any conveyance of real estate. A lease is a conveyance within the meaning of statute.</p>

The plaintiffs, as administrators of the estate of Ira Bent¡ly, deceased, bring this action against the defendant, for the recovery of demands arising under the excise laws.

<p>Appeal by defendants from a judgment at special term.</p>

On the 1st of October, 1857, James Devine and his wife, being residents of the city and county of New York, deposited two sums of money, of $485 each, with the defendant, which was, - and still is, duly incorporated under the laws of this state, for the purpose of receiving moneys on deposit and paying interest therefor. The deposit of one of these sums was placed to the credit of James Devine, and one to the credit of James Devine and his wife, Martha.

On the 14th day of April, 1873, the plaintiff in error, at a court of general sessions of the peace of the city and county ' of New York, held in the city of New York, before Hon. John K. Hackett, recorder of the said city, was convicted of the crime of robbery in the first degree, and sentenced to the state prison for twenty years. The case was removed to this court by writ of error.

<p> Exception to swreties in undertaking. </p> <p>On appeal from the general term of the marine court to this court, the undertaking required should be according to sections 854 and 356 of the Code.</p>

<p> What false representations made will justify a recovery therefor. </p> <p>It is now settled by the court of appeals that an action, founded upon the deceit and fraud of the defendant, cannot be maintained in the absence of proof that the defendant believed, or had reason to believe, at the time he made them, that the representations made by him were false, and for that reason fraudulently made, or unless it be shown that he assumed or intended to convey the impression that he had actual knowledge of their truth, though conscious that he had no such knowledge. Although the rule declared in Bennett agt. Judson (21 N. Y., 238) that one who, without knowledge of its truth or falsity, makes a material misrepresentation, is guilty of fraud in legal contemplation as much as if he knew it to be untrue, is qualified but not overruled, the injured party is not compelled to prove that the person making the representations knew them to be false; if he assumes or intends to convey the impression that he has actual knowledge of their truth, when conscious that he has not such knowledge, it is enough.</p> <p>■ The impressive array of facts in this case would seem to be quite conclusive upon the correctness of the findings of the referee charging the defendant with having made false representations, and for an improper purpose.</p>

<p>Motion by plaintiff to continue an injunction.</p>

This was an action tried before Hiram Briggs, Esq., a justice of the peace of the town of Sherburne, Chenango county.

The New Amsterdam Fire Insurance Company was a corporation duly organized under the laws of the state of Hew York in the year 1852. In the month of October, 1871, the defendants were the directors of said company, and its assets, including capital and surplus, amounted on the first day of that month to the sum, exceeding a little over $400,000. The said company had agencies for the transaction of the insurance business in Philadelphia, Chicago and Milwaukee.

<p>Action to reform a policy of insurance.</p>

This was an action for trespass, for breaking and entering plaintiff’s dose and cutting a bee tree, and carrying away. the. honey, &c. It was conceded upon the trial, by the defendant, that he. cut the tree and carried away the honey taken from the tree, in which there was a swarm of bees. The only important question arose upon the measure of damages. The cause was tried before Isaac Plumb, Esq., a justice, of the peace of the town of Sherburne, Chenango county, and a jury.

The plaintiff was appointed janitor of the sixth district civil court of the city of Mew York, in 1870, and his compensation fixed by the common council.

Motion by judgment creditor of defendant to set aside the judgment in the above action entered in favor of plaintiff prior to the judgments of the moving party.

<p> When purchaser at mortgage sale may refuse to take title. </p> <p>Where a purchaser of a leasehold interest for a term of years at a mortgage foreclosure sale of premises in the possession of tenants at the commencement of the action, and who remain in possession at the time of the sale, hut not made parties to the foreclosure proceedings, he is not hound to complete his purchase and take a title.</p>

<p> Partition—commissioners' fees. </p> <p>Commissioners appointed to make partition of real estate are not entitled to more than two dollars per day for each day actually and necessarily employed in the business of such partition, besides their actual and necessary disbursements, even where they are also directed to sell a portion of the property.</p> <p>Each commissioner is entitled to compensation at that rate only for the time he was actually and necessarily employed in the duties of his office. The affidavits used on a motion to adjust the fees and expenses of commissioners must show, in detail, the number of day’s service actually and necessarily performed by each commissioner, and, also, the actual disbursements made by the commissioners, together with the necessity of incurring them.</p>

<p>Appeal from a judgment of general term, first judicial district,</p>

This is an appeal from an order setting aside an attachment against the property of the defendants. A motion was made on the part of the defendants to vacate the attachment, which was denied. A motion was then made for a reargument, which was granted; and on the reargument the attachment was set aside.

<p>Motion by the plaintiff for a temporary injunction against the defendants.</p>

<p>Action of libel— demurrer to answer,</p> <p>A defendant in an action for libel may allege the truth of the publication or that it was privileged.</p> <p>Where the facts stated in a subdivision of the answer do not bring the alleged libelous matter within any of the classes of privileged communi-' cations, it cannot be sustained on demurrer as a privileged communication.</p> <p>The matter stated, however, if it fails to justify the libel, may be given in evidence to mitigate the damages, if it has been pleaded separately for that purpose.</p> <p>Where the answer alleged that the article, on which the complaint is founded, is, as to the matters complained of,’ true, “according to the true intent and meaning thereof; ” held, the defendant had the right to allege the truth as a defense, and that the mere surplusage of the last words, quoted, did not render it a defective pleading.</p>

<p> Control of the court over its own judgments—sufficient notice to move to vacate. </p> <p>The court has control over its own judgments and decrees, and will vacate a decr.ee which' has been improperly obtained, upon such notice as in view of the circumstances of each case may be deemed just and proper. This power is inherent in the court and is not limited by section 174 of. ■ the Code, which has reference merely to ordinary defaults.</p> <p>Where, on a motion to vaoute a judgment or decree, the affidavits are conflicting, the court must look to the record and the undisputed facts.</p>

Appeal by the Mayor, &c., of the city of Hew York, from an order made at special term, vacating certain assessments made upon the property of the petitioner.

<p>When the law transfers to another body the performance of certain duties, it conveys all the powers possessed by the former body, not expressly repealed.</p> <p>A discretionary power to discontinue a proceeding instituted to acquire title to certain lands having been possessed by the mayor, aldermen and commonalty of the city-of New York, provided the same be exercised before the confirmation of the report of the commissioners of estimate and assessment, is possessed by their successors, the commissioners of public parks.</p>

<p> Will and codicil denied probate on the ground of want of due execution, testamentary incapacity of decedent, and undue influence exercised over him. </p> <p>Frederick Rollwagen, the testator, died in the city of New York on the 11th of October, 1873, at the age of sixty-six years, leaving, as next of kin and heirs at law, three adult sons, seven grandchildren, the family of a deceased daughter; also left a widow (his third wife), who had a child born about one month after his death. The other heirs were children by the first marriage. He also left, at the time of his death, real and personal property worth about $800,000, mostly in real estate.</p> <p>The application for the probate of the will, which was dated the 17th of June, 1873, and the codicil, which was dated on the 5th of September, 1873, was made and supported by the widow, named as executrix, and her two brothers, Henry and George Herrmann, named as two of the executors. Frederick Rollwagen, Jr., the testator’s eldest son, was also named as one of the executors, but did not join in the application for probate, but joined with his brothers in contesting both the will and codicil.</p> <p>The will and codicil gave to the widow a much larger proportion of the estate than would have been her share had the decedent died intestate.</p> <p>In this proceeding the surrogate examined sixty-eight witnesses, whose testimony covered over 1800 printed pages, and, as a final result, came to the conclusion:</p> <p>1st. That the requirements of the statute had not been observed in the execution of the papers offered for probate;</p> <p>2d. That the decedent, at the time of the alleged, execution, was not possessed of testamentary capacity; and</p> <p>3d. That the execution was the result of' undue influence, fraud and circumvention exercised over the mind of the decedent By his wife and her brother Henry Herrmann,.</p>

Motion by defendant Andrews, to set aside judgment as irregular, or for leave to answer on terms. The action is brought on a promissory note made by the defendants, payable to the plaintiff. Andrews alone defended. The original answer was served by mail, November fifth; NovembeT seventh the plaintiff noticed the cause for trial at the Ontario circuit.

Action for claim and delivery of personal property. The vendor parted with his goods through the fraudulent representations of one Prowlee. The goods were afterward found in the possession of the defendant, against whom the action was brought. The defendant claimed to be a bona fide purchaser, from the fraudulent vendee, without notice or knowledge of the fraud, and for a valuable consideration.

<p>Appeal from orders overruling answers as frivolous.</p>

<p>Examination under sections 190 and, 191 —production of books and papers.</p> <p>The examination of a party before trial under sections 190 and 191 of the Code, does hot authorize the issuing of a subpoena duxes teewm to bring up the party’s books and papers. They are distinct proceedings.</p>

<p>Appeal from a judgment recovered on the report of a referee.</p>

<p>Appeal by defendants from an order of reference.</p>

<p>Motion for the discharge of Levy Lippman on habeas corpus.</p>

<p>Appeal from a judgment entered on the verdict of a jury in favor of the plaintiff.</p>

The action was brought to recover upon a policy of insurance, issued by defendant to plaintiff, upon a barn and property situated in Onondaga county. The property was destroyed by fire in July, 1868. One of the conditions annexed to the policy of insurance was, that the insured should in case of loss, forthwith give notice to the secretary of the company, and, within ten days after such loss, deliver in a particular account of such loss, signed and verified.

Appeal by the plaintiff from a judgment rendered by the general term of the supreme court setting in the third department, affirming a judgment of nonsuit ordered by Mr. Justice James at the Saratoga circuit, January, 1873. ' .

This is a motion in behalf of the plaintiffs to set aside the report of the referee by whom the cause was tried, for alleged irregularity in this, that the report does not state the facts found by the referee, nor his conclusions of law.

This action is brought to set aside a conveyance of certain real estate in the city of New York, made by the plaintiff to his mother Ann Powers, and also a subsequent conveyance of the same premises, made by her in her lifetime to the defendant Thomas Kivlin.

<p>What is necessary to constitute negligence and want of care in the selection and employment by a railroad company of’their agents and employes, to render the company liable in cases of personal injury.</p> <p>It is now an established and well settled doctrine that if a master is wanting in proper care in the selection of servants, and negligently or knowingly employs or retains in his service those who are incompetent and unfit for the duties to which they are assigned, he is liable to respond to other employes and servants engaged in the same service, who may sustain damages by reason of such incompetence and unfitness.</p> <p>It is likewise settled that when the master is a corporation, necessarily acting by and through agents, the acts of its general agents, charged with the employment and discharge of servants in the performance of that duty, must be regarded as its acts.</p> <p>And it is also well settled that when reasonable precautions and efforts to procure safe and skillful servants are used, and without fault one is employed through whose incompetency damage occurs to a fellow-servant, the master is not liable.</p> <p>When, as in this case, the general fitness and capacity of a servant is involved, the prior acts and conduct of such servant on specific occasions may be given in evidence, with proof that the principal had knowledge of such acts.</p> <p>But proof of specific acts of negligence of a servant or agent on one or more occasions does not tend to prove negligence on the particular occasion which is the subject of inquiry.</p> <p>It is the duty of a railroad corporation to exercise due, that is, ordinary care, in the selection and employment of its servants and agents, having respect to their particular duties and responsibilities, and the consequence that may result from the want of competence, skill or care in the performance of their duties.</p> <p>An individual who, by years of faithful service as an employe, has shown himself trustworthy, vigilant and competent, is not disqualified for further employment, and proved either incompetent or careless, and not trustworthy, by a single mistake or act of forgetfulness and omission' to exercise the highest degree of caution and presence of mind.</p> <p>The verdict of a jury against a railroad corporation for negligence, based upon insufficient evidence, would be against evidence, and in such case it is the duty of the court to nonsuit.</p>

The plaintiff, a resident of London, for the purpose of testifying in his own behalf, applied to the special term for a commission, appointing commissioners in London, to take his deposition upon interrogatories. The motion was granted; an order in the common form was entered, and a commission, with interrogatories and cross-interrogatories, was sent to London. ' No provision was made in the order for the expense of the commission.

This action comes up to be heard in the first instance at the general term on a case and exceptions. A verdict was rendered for the plaintiff at the Ulster circuit, in January, 1873, judge Danforth presiding, and judgment has been entered as security.

At a meeting of the board of directors of the defendant, held on the 25th January, 1873, it was voted that a dividend of four per cent be declared, payable that day, and that another dividend of four per cent be declared payable at option of defendant's agent.

Trial upon indictment of the superintendent and proprie: tors of a line of city stages for causing and procuring a horse to be overdriven, &c. . The facts appear in the charge to the jury.

In this case, two account books, which had been put in evidence, were submitted to the jury, by consent of counsel, and taken by it into the jury room.

The appellant was sued in the district court in the city of New York, for the third judicial district, before justice Fowler, for an amount exceeding the sum of $100. After issue' joined, he tendered to the justice an “ undertaking on removing cause to the common pleas ” and a proposed “ order for such removal,” in pursuance of subdivision 3, section 3, Laws of 1857, chapter 344, page 707, district court act (Langbein’s District Court Practice, p. 41).

<p> Board of Education, New York, not apart of the city government—how funds are procured from the hoard. </p> <p>The board of education of the city of New York is not a department of the municipal government of that city, and the provisions of the charter 1873), in reference to the payment of moneys from the city treasury, do' not apply to that board.</p> <p>The several acts of the legislature relating to this subject contemplate that moneys required for the purposes of the board of education, or of the college of the city of New York, should be drawn out from the treasury of the city only by the draft of the president of said board of education, countersigned by the clerk of said board.</p> <p>- Neither the auditor nor comptroller of the city have anything to do with claims against the board of education.</p>

55, against the defendants, The Mayor, &c., of New York; and judgments in favor of defendant, Samuel Donaldson, for $213,140.17; defendant, Anthony S. Hope, for $18,779.10. defendant, Tilly R. Pratt, for $53,359.90, and defendant, Charles D. Blish, for $106,719.81, and defendant, Thomas Hope, for $39,375.54, all against the defendants, The Mayor, &c., of New York.

At the October term, 1873, of the circuit court of the United States, held in the southern district of New York, the Hon. Charles L. Benedict, the defendant, presiding, the .plaintiff was arraigned under an indictment for feloniously stealing certain mail bags in use by the post-office department of the United States, and was tried and convicted, the jury finding in their verdict that the value of the bags stolen by the defendant was less than twenty-five dollars.

<p> Service by mail—conditional notice on envelope. </p> <p>Where service of papers is made by mail, no condition should be reserved; the service must be absolute and complete at the deposit in the post-office.</p> <p>Where the papers to be served, are inclosed in an envelope which has on its face a notice “ If not called for in five days return to the attorneys ” making the deposit in the post-office, is such a condition or qualification as vitiates the service.</p>

Motion by defendants to- charge Lomore Bros. & Co. with the payment of the costs of this action, entered in a judgment in favor of the defendants against plaintiff. • The moving affidavits showed that Lomore Bros. & Co., judgment creditors, instituted supplementary proceedings against one Coke, and therein had the plaintiff Gallation appointed receiver; that thereupon this action was brought to reach Coke’s property, alleged to be in defendants’ hands, and to obtain…

Isaac Bronson died on the 9th of May, 1838, leaving a last will and testament, dated June 8,1829, and also a codicil thereto, dated March 3, 1838, and also a further codicil thereto, dated April 4, 1838. The said will and codicils were each duly executed according to law, to pass real and personal estate, and were duly proved before the surrogate of the city and county of New York.

<p> Motion to set mide judgment of forécloswre, for irregular appearance of attorney. </p> <p>Where merits are shown, and the insolvency of the attorney maybe inferred, the court will let in the defendant on the merits, on a motion to set aside a judgment of foreclosure.</p> <p>Where the right claimed by the defendant to have the service and judgment, set aside without terms, it appears that the right of merits is against the defendant, his motion will be denied.</p>

Demurrer by the defendants to a complaint by the plaiñ'tiff, stating that its policy of insurance was obtained from it by the fraud of James H. Reals, upon whose life it was issued, in complicity with the defendant Fowler, for the benéifit of Reals’ widow and children, defendants.

This action was brought February 20, 1874, to recover the balance due upon a contract made by the parties September 23, 1865, for the sale of certain lots of land in the village of Port Jervis, Orange county, ¡N*. Y. The defendant made the first payment on the contract and declined to pay any more, alleging that the plaintiff could not give a good title for the premises. He went into possession, and continued therein up to the time of the trial.

<p>Appeal from judgment and from order denying motion for new trial, made upon the minutes of the justice holding the circuit.</p>

The conveyances in controversy were executed on the 28th day of April, 1870. The court found that the defendant Michael Connor was at that time indebted to one John Post and one David 0. Carpenter, and that one Gibbons preferred a claim against him in tort for $2,500, and that by reason of the conveyance Connor became unable to pay his debts in full, and was rendered insolvent.

<p>Writ of error to the court of general sessions, on a conviction for rape.</p>

<p>Oommon cmrier's responsibility—what constitutes baggage.</p> <p>The limit of a public carrier’s responsibility is as uncertain when left to be ascertained as a question of law by the court, as when left to the inquiry of a jury, because, in the nature of things, it is susceptible of no precise or definite rule what shall constitute the quantity or the value of the articles which may be deemed proper or useful for the purposes of the traveler.</p> <p>But whenever the article in controversy is or may be wearing apparel, a question arises for the determination of the jury as to whether, upon the facts in the particular case, it was such as the traveler was entitled to cany as baggage, it follows that the finding of the jury, when sustained by credible testimony, must be conclusive.</p>

<p> Affidavits of jurors will not he received to impeach their verdict—new trial surprise. </p> <p>Affidavits of jurors will not be received to impeach their verdict.</p> <p>If a plaintiff he taken by surprise, he should take a nonsuit, because if he proceeds with his case and seeks to take his chances for a verdict, he forfeits his right to a new. trial on this ground.</p> <p>With us the permission of the court is asked for to withdraw a juror, and to let the case stand over for a future day.</p> <p>After discovered testimony, if material, is good ground for a new trial, but it must have been discovered after the trial.</p>