Volume 48 — New York Reports

(Reported below, 46 Barb., 45.) The action was to recover the value of a cargo of corn shipped from Chicago to Buffalo, and thence to New York by one Yiets, consigned to defendants. On the 17th day of November, 1859, at Chicago, H. Yiets made his bill of exchange for $3,500 at sight, directed to the defendants in New York. On that day the plaintiff discounted the bill for Yiets for value.

(Reported below, 44 Barb., 505.) This action was brought ■ against the defendant, a warehouseman, to recover the value of certain goods stored with him by the plaintiff, and was commenced by the service of summons August 14, 1862.

The action is to recover damages for an alleged breach of contract to manufacture and deliver a quantity of paper.

This was an action for the recovery from the defendant, as surviving partner of the firm of Johnson & Bliss, of the balance of $911.50 due to Henry 0.

Exceptions heard at the General Term in the first instance. (Reported below, 46 Barb., 412.) The action is to recover the sum of $5,000 insured by the defendant, by a policy on the life of Philip J. Welts, payable to the plaintiff, his wife, in ninety days after notice and proof of his death, dated September, 1864.

This action was commenced to compel the determination of claims to certain real property situated in the city of How York. The summons was in the usual form for relief, and was dated in October, 1862. It was soon thereafter served upon all the defendants. One of the defendants resided in California, and the summons was served upon him by publication, and he appeared and answered.

<p>Appeal from judgment of the General Term of the Supreme Court in the sixth judicial district, affirming a judgment for defendants entered upon a verdict. The case is reported helow, 46 Barbour, 622. The facts are stated in the opinion.</p>

This was an action by the plaintiffs as creditors of a limited partnership doing business under the name of John Heads, Jr., against the defendants as assignees of such partnership for an accounting and other relief.

These are appeals by the relator from judgments of the General Term of the Supreme Court, in the eighth judicial district, affirming the assessment made against the relator by the respondents, as assessors in the towns of Evans and Ham-burgh, in the county of Erie. The questions arising on these appeals in the two actions are the same. The original proceeding was upon returns made to a certiorari issued in each action.

This is an action of trover, and is brought by the plaintiff against defendant for a wrongful conversion of personal property of the value of $1,500.

These are appeals by the defendants from judgments of the General Term of the Superior Court of Buffalo, affirming judgments in favor of… Held: as conclusions of law, that the assessments were wrong, for the reason that the lands should have been assessed as the lands of a non-resident; that there was no warrant or authority in the law for enforcing the tax by levy and sale of the personal property of the plaintiff; that the assessment against the plaintiff on the roll was…

The action is for the partition of lands situate in Horwieh, Chenango county, and for an accounting as to the rents by certain of the tenants in common. The right of the plaintiffs to bring this action, and the proportions in which they are interested, if at all, depend upon the construction to be given to the last will and testament of William Spier, of Columbia county, H. Y. The will was executed by the testator in 1821.

This is an appeal by the defendants, Phillips and Many, from an order of the General Term of the Hew York Common Pleas reversing a judgment in their favor, entered on the report of a referee, and ordering a new trial.

The facts and the opinion of the court thereon, are fully reported in 45 Barbour, 274, etc. The facts material to the decision of this appeal are these: George W. Cuyler, the president of the First NationaBank of Palmyra, acting for and by authority of the plaintiffs, on the 16th of March, 1865, presented to the defendant, a corporation duly incorporated under the general law of this State providing for the incorporation and regulation of telegraph companies, a dispatch or…

The action was brought against defendant as sheriff of the county of Monroe, for an alleged liability growing out of the facts set forth fully in the prevailing opinion of Lott, Oh. C.

The action was brought to recover the sum of $675, which plaintiff alleged he had been compelled to pay as surety upon an appeal bond executed for the benefit of defendant. The facts are as follows: John Adams built a steam-tug, called the L. L. Britton, and owned and managed her as master. Becoming embarrassed financially, he induced the defendant to take the title to her, and had her enrolled and licensed in his name. Defendant did not pay or agree to pay anything for her.

The action was brought against the defendant, as sheriff of the county of St. Lawrence, to recover damages for not returning certain executions, and not paying over moneys collected thereon. The judge before whom the cause was tried found the following facts: From January 1, 1859, to December 31, 1861, the defendant was sheriff of the county of St. Lawrence, and Joel Houghton was one of his deputies.

The action was to recover for the alleged wrongful conversion of a wagon by the defendants. The defendants denied the allegations of the complaint, and alleged the recovery of a judgment in the Supreme Court, in favor of Van Olinda against James H. Smith and George Smith, in 1862'; an execution issued thereon, and delivered to the defendant Davis, as a deputy sheriff, under which the wagon was levied on and sold as the property of James H. Smith.

The action was brought to remove a cloud upon plaintiff’s title to certain real estate in the county of Livingston. It is reported below, in 46 Barb., 109.

77 for damages sustained by said W olcott by reason of the seizure and sale by Hunger, on execution, of a horse belonging to Wolcott, which was, by law, exempt from seizure and sale on execution. The order was made by the County Court or< an affidavit setting forth the recovery of a judgment in a Justices’ Court by Wolcott v. Munger for the amount and for the cause above mentioned.

Appeals from orders of the General Term of the Supreme Court, in the seventh judicial district, reversing judgments in favor of plaintiffs entered upon reports of a referee. The actions were brought to foreclose certain bonds and mortgages executed by defendants to Jonathan Wadhams, and by him assigned to the respective plaintiffs above named.

<p>A person upon whose lands a tree wholly stands is the owner of the whole thereof, and is entitled to all its fruit, notwithstanding some of its branches overhang the lands of another.</p>

This is an action to recover a balance due on a contract for the delivery of hides. The hides were delivered at various dates, from February, 1863, until the latter part of August in the same year. Payments were made to the plaintiff’s agent weekly, and receipts given by him. Fifteen of these receipts, between May and February, were expressed to be in full.

(Reported below, 46 Bar., 222.) This action, brought to recover damages sustained by the plaintiff while a passenger on the defendant’s steam vessel, Isaac Newton, from New York to Albany, was tried at the Rensselaer Circuit, in May, 1865. On the trial it appeared that in December, 1863, while the plaintiff was such passenger, an explosion of one of the boilers of the vessel occurred, and that the plaintiff was thereby greatly injured.

The action was brought to recover the alleged valúe of two trunks containing clothing and jewelry to the amount of $3,847, and lost on the railroad of the defendants in September, 1864.

second judicial district, reversing an order denying a new trial and setting aside a verdict in favor of defendant, and granting a new trial. This is an action of ejectment to recover two pieces of land in the town of Middletown, Orange county. As to the first one, termed the Armstrong lot, no questions are here presented. The controversy arises upon the lot called the Yail lot.

This action was to recover damages for breach, of, a contract made May 13, 1864, whereby the defendants agreed to.deliver to the plaintiffs, at sellers’ option, on or before the 31st day of July, 1864, exchange for 10,000 louis d’or thalers, lawful money of Bremen, at sixty days’ sight, for the price of one dollar and thirty cents,, lawful money of the United States, for each louis d’or thaler, and the plaintiffs claimed damages to the amount of $6,400, admitting $3,500 had…

This action was brought to recover of the defendants a balance claimed to be due from them to the plaintiff for the rent of certain premises known as 326 Greenwich street in the city of New York.

It appeared that in January, 1849, five several mortgages were, for a valuable consideration, duly executed, acknowledged and delivered by Aaron D. Patchen and wife to Aaron D. Patchen as president of the Patchen Bank of Buffalo, upon certain lands in Erie county, to secure the payment of several sums of money amounting in the aggregate to something over $7,300, each of which was duly recorded in the office of the clerk of the county of Erie, and afterward in the same month…

This action is brought to recover a balance claimed to be due upon a contract by which defendant assumed to pay the debt of a third person. The defence is, that the agreement is void under the statute of frauds, found among other things as follows : On the 31st day of January, 1861, one L. H. Mattison was indebted to the plaintiff in the sum of $1,580.07, which indebtedness the said Mattison was unable to pay.

(Reported below, 47 Barb., 439.) Action upon an implied covenant in a deed executed to defendant.

This action was brought in March, 1862, to recover of the defendant rent for certain premises in the county of Rensselaer.

Action for the recovery of personal property. The referee found the following facts: On the 17th of June, 1856, a written contract was made between George and Isaiah Weaver of the one part, and Russell, Allen & Martin of the other, by which the latter agreed to sell the former certain standing timber, the former to pay twenty-five dollars down, and twenty-five dollars October first, then next, and the remainder for the timber manufactured on or before April first, next;…

The action was brought to recover possession of a steam-engine, boilers, gearing, shafting, planing machines, saw benches, turning lathe, etc., alleged to have been wrongfully severed from the freehold and removed by defendants from certain buildings in the town of Coeymans, called the Kimmey mills.

The action is for the foreclosure, of a mortgage made by Franklin K. Sherwood to the plaintiff, in April, 1855, to secure the payment of $1,200, with interest, on the undivided share of the mortgagor in land situated in Buffalo. The principal contest is between the defendants, Henry Roop and William C. Sherwood, who are the owners of the equity of redemption. These defendants answered the complaint by separate answers, and the other defendants suffered judgment by default.

(Reported below, 47 Barb., 411.) This was an action to recover the sum of $610, for a quantity of butter sold by the plaintiff’s assignor in August, 1857. Harvey Kilmer carried on the produce business in Hew York, under the name of C. Kilmer, which name represented York, under the name of C. Kilmer, which name represented the defendant.

(Reported below, 50 Barb., 9.) The action was brought to recover of the defendant damages alleged to have been sustained by the plaintiff, by reason of the neglect or misconduct of the defendant as cashier of the plaintiff’s bank. The facts pertinent to the questions discussed appear in the opinion. The referee decided that plaintiff was not entitled to recover, and directed judgment for defendant, which was entered accordingly.

(Reported below, 47 Barb., 501.) This action is upon a bond given by the defendants, in order to obtain the discharge of a vessel which had been seized under a warrant of attachment, issued by the county judge of Ulster county, to enforce an alleged lien of the plaintiff thereon, according to the provisions of chapter 482, Laws of 1862. The answer contains a general denial and alleges a release of the lien.

This is an action against the heir of a vendor, to compel the specific conveyance of land. The executors of the deceased vendor are not made parties. The litigation at the trial was chiefly upon the claim of the defendant that he could repudiate the contract because the payments were not made at the time specified in the contract.

Abpeal from judgment of the General Term of the Supreme Court, in the eighth judicial district, affirming a judgment of foreclosure, etc., entered on a report of a referee. The action of the Cambridge Valley Bank was brought to foreclose a mortgage. The action of Sarah C. Worrell was brought to relieve the mortgaged premises, and charge the mortgage debt primarily on other lands.

The action was brought to compel the specific performance of an agreement to sell a lot in the city of Yew York.

The action was brought by the plaintiff to recover the possession of twenty-two war loan bonds, issued by the county of Oneida, of the estimated value of $20,000, and damages for the unlawful detention thereof from him.

This was an action to recover the balance due upon a sale of iron. On the 6th of February, 1864, the plaintiff contracted to sell and deliver to the defendants “ 800 gross tons Poughkeepsie foundry pig iron, at forty-five dollars per ton for Ho. 1, and forty-four dollars per ton for Ho. 2; cash on delivery at wharf at Poughkeepsie.” Plaintiff was the manufacturer of iron known in the market as Ho. 1 and Ho. 2 Poughkeepsie foundry pig iron.

The action was brought by the plaintiff to restrain the defendants by injunction, among other things, from using the number “ 303 ” on steel pens manufactured by them, and on small paper boxes in which they are put up, on the allegation in his complaint that he had for sixteen years and upwards kept on sale and sold a particular kind and style of pen, made by him, and put up in boxes imitated by the defendants, having the said number “ 303 ” impressed on the said pen, and…

Defendant issued to plaintiff a policy of insurance, dated May 21st, 1863, by which it insured him against loss or damage by fire, to the amount of $2,000, on his stock of books, * * paper stock, stereotype plates stored, but not in use, and on the store fixtures, all contained in the first story of the five-story brick building situated at No. 39 Centre street, in the city of New York.

The action was brought to recover damages for the alleged conversion of two bonds of the town of Wolcott, Wayne county. It is reported below (46 Barb., 507). The following facts appeared upon the trial.

The return of the defendants to the writ shows that their predecessors in office made the assessment complained of, and it contains all the proceedings had before the board of trustees, and their action thereon. The leading features of the return and other facts appear sufficiently in the opinion.

The action is to recover the possession of 194 tons of coal, alleged to be the property of the plaintiff, wrongfully detained by the defendants, and of the value of $597.05. The defendants deny the allegations of the complaint, and claim that the coal was purchased by Linneman of the plaintiff on a credit, and afterward sold for value to the defendant Broking.

This action was brought to establish and enforce an equitable lien upon the property of John Carpenter. On the 14th of July, 1865, John Carpenter was indebted to certain banks in $5,000, secured by the indorsements of defendants, Benjamin Carpenter, Benson Smith, Rice Tompkins and I). J. Sunderlin. He was indebted to plaintiff $450, and was also indebted upon two notes indorsed by Sunderlin $1,000.

<p>Defendant agreed to run plaintiff’s boat from Oswego to Martinsburgh; “ risk of navigation assumed” by plaintiff. Defendant was prevented from performing by the fact that the boat was too large to pass through the locks on the Black River canal. Held, that the term “ risks of navigation,” as used in this agreement, had a broader signification than “ perils of navigation,” and that plaintiff assumed all the risks attendant upon the navigation through the canal which were beyond the control of defendant, including the risk in question.</p> <p>Defendant alleged, in his answer, that by the verbal agreement between the parties, in pursuance of which the written contract was intended to be drawn, it was understood that the risk, as to the practicability of the boat passing through the locks, was to be, and it was understood by them was, assumed by the plaintiff, and asked to have the written contract reformed to correspond with the agreement, should such correction become necessary. The court below decided that the words in the contract did not include this risk. Held, that, with this construction, the answer sufficiently showed a mutual mistake, and that defendant was entitled under it to introduce evidence as to the original agreement.</p> <p>Where parties, to carry out then1 contract, agree to use an instrument which, by their mistake of the law, will not effectuate their intention, equity will not reform the instrument or substitute another; but where parties intending to reduce a parol agreement to writing, and because they are ignorant of the force of language, and misunderstand the meaning of the terms used, make a contract different from that designed, equity will grant relief by reforming the instrument and compelling the parties to execute and perform their agreement as they made it. It matters not whether such a mistake be called one of law or of fact.</p> <p>An equitable defence of this nature can be litigated upon a jury trial.</p>

<p>The salary allowed to an officer of a corporation is presumed to be for services to be performed by Mm as such. Where, therefore, with the assent and co-operation of such officer, all the property, business and franchises of the corporation are sold, so that he has no further duty to perform, there is no basis in law or equity for a claim, upon his part, that the salary continues, and the contract, as to salary, will he deemed to be canceled, although the corporation itself is not dissolved.</p>

The action is brought to recover damages to which plaintiffs claim themselves entitled from the following facts: On the 24th of January, 1863, one Edwin L. Patrick, by agreement in writing, contracted to sell and convey to William H. McEachron, plaintiffs’ testator, certain premises in Washington county, the deed to be delivered April 1st, and purchase-money paid April 3d, then next: On the 10th of February, 1863, McEachron contracted to sell and convey the premises to…

<p>Appeal from order of the General Term of the Supreme Court in the first judicial district reversing a judgment in favor of plaintiff, and also an order denying a new trial, and granting a new trial. The facts presenting the points decided sufficiently appear in the opinion. The case is reported below, 49 Barb., 547.</p>

This is an action of ejectment. The evidence tended to prove the following facts: In April, 1850, James Bryson was the owner of premises in Queens county, of a lot in Livingston street, a lot in Nassau street and of three lots in Wyckoff street, Brooklyn. On the 16th April, 1850, he conveyed all the foregoing premises by a trust deed to William Culbert. On the 28th December, 1850, Ann Morrison, administratrix, recovered a judgment against James Bryson for $315.65.

This action is for the recovery of one-half of the expense of taking down a wall standing wholly on the plaintiff’s land, and rebuilding it, to be used as a party wall between the building of the plaintiff on the east and the defendant on the west, under a written contract for that purpose.

The action was upon a promissory note alleged to have been executed by defendant John Loughlin; defendant denied the making of the note. The facts are sufficiently stated in the opinion.

This action was brought to recover damages for an alleged breach of an agreement to transmit a package of currency from Chicago to the Bank of Dalton, Georgia, for redemption, and to return the proceeds.

The action was for an alleged libel published in the ¡New York Herald, contained in a letter addressed to the editor of that paper by Mrs. Kimball, widow of Lieut.-Col. Kimball, deceased. The writer, after referring to certain matters relating to her deceased husband, says: “Among the papers referred to as returned to me are my own private letters, scattered indiscriminately among the others, and returned to me after having been in the hands of a prostitute.

The action is to recover for the conversion of five promissory notes, amounting to about $800.

This action was commenced to declare void and to vacate the lien of a sale and certificate of sale of a lot of land in the city of Brooklyn for the non-payment of an assessment for flagging a sidewalk in front of said lot. Proceedings to lay the assessment commenced July 23,1860, and the assessment was confirmed April 8, 1861. The assessment remaining unpaid, the lot was sold to the defendant for non-payment thereof, June 4, 1863.

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial district, affirming a judgment in favor of the plaintiff, entered upon the decision of the court at circuit, upon trial without a jury.</p> <p>The complaint alleges the wrongful conversion of three drafts or bills of exchange drawn by Jaycox & Green upon the defendant, each payable one month after date to their own order, and indorsed by them, and dated, respectively, September 16, November 6 and November 22, 1865, amounting together to $1,012, which were delivered by Jaycox & Green to the plaintiff, discounted by the bank, and sent to the defendant for acceptance and payment, and to be returned if not accepted A demand and refusal were also averred.</p> <p>At the trial it was proven, on the part of the plaintiff, that the bills were drawn at the different dates, as alleged, and' delivered to the bank for collection; that they were drawn for goods sold to the defendant; that they were discounted for the drawers by the bank soon after they were so received, and sent to the defendant for acceptance and payment. That the plaintiff sent an agent to the defendant at the village of Farmer, where he resided, who, by their authority, demanded the said bills of him. The defendant, in answer to the demand, claimed, at first, as testified by the .agent, that he had returned the bills, but, afterward, made an unsuccessful search for them, and finally said that they might have been burned up among some papers of no value.</p> <p>The defendant testified, in his own behalf, that when the demand was made he went to another room and searched for the bills, but was unable to find them; that he did not say that he had burned them, but said that they might have got into his waste-basket and thus have been lost or destroyed ; that he had since looked for but could not find them; that he had never destroyed or negotiated the bills, and that he was insolvent.</p> <p>The judge found, among other things, that the plaintiff demanded the bills of the defendant, who refused to deliver them; said bills having been lost, mislaid or destroyed through the negligence of the defendant, and converted the same; and, as a conclusion of law, that the plaintiff was entitled to recover the amount of the bills, with interest from the demand, amounting together to $1,071.</p> <p>The defendant duly excepted.</p>

This action was submitted to the court on the trial thereof upon a statement of facts containing the following: Defendant was, at the time mentioned in the complaint, and for a long time previous thereto, accustomed to refuse to receive or carry, at its ordinary tariff rates, large mirrors and other articles too bulky to be carried in covered cars, and for that reason liable to extra hazards, unless the shippers would execute and deliver to them a release of liability in…

<p>Trustees, in whom is the title to a trust fund, are the proper parties plaintiff in an action to maintain and defend the fund against wrongful attack or injury, tending to impair its safety or amount. Neither the cestuis que trust nor beneficiaries can maintain such action against a third person, except in case the trustees refuse to perform their duty, and then the trusteés should he made parties defendant.</p> <p>Assessors are quasi judicial officers; their assessments are in the nature of judgments. They are not subject to an action to review, modify or reverse their judgments, nor to hold them to personal liability, when acting within their jurisdiction. Their judgments can be reversed by action for fraud, mistake or other cause, giving jurisdiction to courts of equity; but it is the parties affected by the judgment who must be brought into court to litigate, not the judges.</p> <p>It is ministerial, not judicial officers, whom the court has power to restrain when proceeding illegally under a claim of right. The process of injunction, in a proper case for staying a judgment, goes against the parties, not the tribunal or its judges.</p> <p>The rule denying the right to interfere by injunction to restrain the collection of a tax, is one of public policy, and it is equally applicable to the case of an assessment.</p> <p>The remedy by certiorari is the proper one to review an assessment.</p>

The action was brought to recover the amount of a promissory note, made by the defendant, payable one month after date, at the Hanover Hational Bank of the city of Hew York, to the order of D. Bussel, and by him indorsed to the plaintiff. The judge, on the trial, after the testimony was closed, directed the jury-to find a verdict for the plaintiff for the amount of the note and interest, to which direction an excep-’ tion was taken by the defendant.

(Reported below, 52 Barb., 138.) This was an action for trespass, in taking from plaintiff’s possession currency to the amount of $119.27. Defendant justified as collector of the village of Sandy Hill, under a warrant issued to him by the trustees of said village. The warrant commanded him to collect from the several persons therein named the sums assessed against them respectively. Plaintiff’s shareholders were assessed for their stock.

This action was brought in June, 1862, against the defendants, who, as the complaint alleged, were severally stockholders in the ¡Newtownand ¡North Hempstead Plank-road Company, organized in 1854 under “ An act to provide for the incorporation of companies to construct plank-roads, and companies to construct turnpike roads,” passed Hay 7th, 1847, which company, as the complaint also alleged, became in January, 1855, indebted to the plaintiff, “ to the amount of several…

The action is upon a covenant in a lease of premises in the city of Hew York, by the plaintiffs to the defendant, whereby the defendant covenanted, among other things, to “ bear, pay and discharge all such duties, taxes, assessments and payments, of what nature or kind soever, as should, during the term aforesaid, be imposed on, or grow due or payable out of, or for, or by reason of the said devised premises, or any part or parcel thereof.” The term was twenty-one years,…

In March, 1865, the defendant was supervisor of the town of Sparta, in the county of Livingston, and, as such, for the purpose of filling the quota of that town, under the call for men for the army and navy of the United States, issued by the president on December 19, 1864, or the next call thereafter, he entered into an agreement in writing with the plaintiff, wherein he, the defendant, authorized the plaintiff to recruit and furnish for him, the defendant, and for his said…

The action was brought to recover the amount of a bill of exchange drawn by Angus McDonald, one of the defendants, at Hamilton, Canada West, in his own name, on W. H. Newman, New York, to the order of plaintiff, for $4,000 in gold, at thirty days. The name of defendant, John D. Hennessey, does not appear upon the draft. The action was defended by Hennessey.

<p>Appeal from judgment of the General Term of the Supreme Court of the fifth judicial district, entered upon an order denying motion for new trial and directing judgment in favor of defendant.</p> <p>The action was brought to recover the sum of $66.13 secured by a chattel mortgage in the usual form, made by one John Markle upon his undivided one-half interest in nine acres of wheat and fourteen acres of oats, growing on the land of Oliver Glass, at the date of the mortgage, May 3d, 1866, which interest was levied on and sold on the 30th of June following, under a judgment and execution in favor of defend.ant against said Markle, defendant having become the purchaser of said interest at such sale. The constable, on putting up the property, with the consent of the defendant, and in his presence and hearing, announced to the bidders that the wheat and oats would be sold subject to said mortgage, and that the purchaser would have to comply with the conditions and demands of the mortgage. The defendant harvested the wheat and oats and threshed .them. The grain was of the value of over $100. The plaintiff then offered to prove that the defendant sold the interest of Maride in said wheat and oats for a sum more than sufficient to pay the amount of the said mortgage, and received the money therefor, and that the plaintiff demanded of the defendant payment of his mortgage, after it became due, and that the defendant refused to pay it.</p> <p>The counsel for the defendant objected to the evidence as irrelevant and immaterial, and the court sustained the objection. The case was here rested for the plaintiff. The counsel for the defendant moved to dismiss the complaint on the ground that the facts proven showed no cause of action. The counsel for the plaintiff claimed that the case should be submitted to the jury. The court thereupon' dismissed the complaint. The counsel for the plaintiff duly excepted to each of the said rulings.</p> <p>The court ordered the exceptions to be heard at the General Term in the first instance.</p>

This is an action of slander. The complaint contains two counts, in each of which it is alleged that the defendant, in 1862, charged the plaintiff with being a public prostitute, and with having had illicit intercourse with divers men. The only allegation of damage in the second count is that the slanderous statement greatly injured the plaintiff in her good name, and caused her relatives and friends to slight and shun her.

This action was brought to recover damages for the breach of a parol contract.

Appeals from judgments of the General Term of the Superior Court of the city of Mew York, entered upon orders denying motions for new trial and directing judgment upon verdicts in favor of plaintiff. The actions were brought to recover the amount insured on the propeller J. F. Barnard, afterward called the Morro, under two several policies issued by the defendants respectively.

Appeal by the defendant Henry Wells from judgment of the General Term of the Supreme Court in the fifth judicial district, affirming a judgment of Special Term in favor of the plaintiffs.

The alleged cause of action arises out of the following facts : On the nineteenth day of April, 1861, Charles W. Grannis, James Calkins, Gustavus A. Scroggs and Eollin Ger-main formed a copartnership, under the name of Germain & Co. On the twenty-fourth day of May, 1862, Eollin Germain made two promissory notes, bearing date on that day, payable to the order of Germain & Co., one for $304.90, and the other for $101.

The action-is upon a policy of marine insurance. Plaintiffs were copartners under the firm name of Snow & Burgess On the 9th day of September, 1864, in consideration of the premium of $660, the defendant made and delivered to the plaintiffs its policy of insurance, by which the defendant insured the plaintiffs for $6,000 upon the schooner Caspian, then owned by the plaintiffs and lying in the port of Boston, Massachusetts, from the 8th day of September, 1864, at noon, until…

On the trial it appeared that, shortly prior to June 22, 1860, one Charles E. Birdsall applied to the defendant for a loan of $500, which the defendant declined to make, hut on that day addressed to the wife of Birdsall a note, in which he stated that if she or her husband would bring him the plaintiff’s note for that sum, he would get it discounted for her husband’s benefit from time to time till her husband was able to meet it; upon the strength of this promise by the…

An action was originally commenced before a justice of the peace, for trespasses alleged to have been committed by the defendant upon two different parcels of lands of the plaintiff, in Greene county, one called the tavern-stand premises, first described in the complaint, and the other the 100-acre lot secondly described therein.

<p>Question as to the construction of the- language of a policy.</p>

<p>One H. worked plaintiff’s farm under a contract, in and by which plaintiff agreed to let the farm to H. to work on shares upon certain conditions, among others, that plaintiff was to account and pay to H., in consideration of the premises and for his performance, the value of one-half of all the grain, etc., produced from the farm. Held, that the parties were not tenants in common of the crops, but that plaintiff had exclusive title thereto.</p>

Action upon- a subscription paper made payable to the “ treasurer of a board of trustees which may be elected by the Wayne County Baptist Association at a convention to meet at Marion, on. Held: that this was a good defence under the authority of the case Same Plamtíff v. La/oinney (Court of Appeals, December term, 1869), and the evidence was erroneously excluded.

Action to recover possession of a canal boat, with damages for the taking and detention. Held: error, upon authority of case Matthews v. Matthews (2 N. Y., 514.)

Dependants were jointly indebted to the plaintiff in the sum of §100; plaintiff was indebted to Edward Brand, one of the defendants, in an equal or greater amount. Held: that the agreement was not one. of sale or transfer, and was not within the provisions of the statute of frauds. (Gray and Leonard, CC., dissenting.)

Action for the conversion of certain farm stock. Defendant leased to plaintiff his farm. The lease contained a provi sion that defendant was to have certain stock, consisting of cows, sheep, etc.; he was to pay as rent one-half of the products of the farm and stock. When any of said property was sold or fit for market, the avails were to be equally divided. Said plaintiff was to leave as much worth of stock on the premises as he took.