Volume 49 — Barbour's New York Supreme Court Reports

A WRIT of habeas corpus was issued, directed to the defendant, requiring him to have the body of Benjamin Brown, the relator, before Justice Gilbert, at the chambers of the Supreme Court, in the city of Brooklyn, on the 26th day of May, 1866. The defendant made return to the writ, that on the 10th day of May, 1866, by virtue of the warrant annexed to the return, he arrested the relator, and held him in custody, under and by virtue of said warrant.

Westcott’s Express Company is a joint stock company, of which the defendant Decker is treasurer. On the 2d of November, 1864, Miss Ellen Prentice; a daughter of the plaintiff, under age, delivered at the defendants’ office at the Hudson river railroad depot, in New York, for transportation from the depot to the plaintiff’s residence in Brooklyn, two trunks containitig clothing and jewelry pro-, vided for her use by her father.

Barrett, deceased. An affidavit of the relator was presented to a justice of this court, setting forth the following facts, viz : That he was the surviving partner of the firm of John F. Barrett and Francis H. Duff; that in .the latter part of March, 1865, he entered into partnership with the said J. F. Barrett, in the work to be done under the contract which said- Barrett had obtained from the city of Brooklyn, for repairing streets of • said city for the western district…

1ST the 19th day of January, 1860, James Cutwater made in due form of law his last will and testament, which has been duly admitted to probate by the surrogate of the county of Dutchess, as a will relating to both real and personal property. .

This action was brought in July, 1866, by Christopher Pullman, a member of the Common Council of the city of New York, against the Mayor and the Common Council of said city, and Charles G. Cornell, Street Commissioner, to restrain the de«fendants from proceeding under a resolution of the common council of the city of New York, passed on or about July 10, 1866, in the words following : “ MesoT/ved, That the Street Commissioner be and he is hereby authorized and directed to…

Motion to discharge purchaser at a judicial sale. The action was brought by Oyprian S. Barnard, Jr., against Jesse A. Heydrick and others, for the foreclosure of a mortgage ; and, after the judgment and sale, the purchaser objected to various alleged irregularities in the proceedings, and now moved to be discharged from his purchase. The facts are stated in the opinion.

<p>APPEAL by th,e defendant, Alfred H. Buncombe, from a judgment entered after a trial before a justice of the court, without a jury, a jury having been waived by consent. The action is upon a bond executed pursuant to an order of the court. On the 4th of October, 1861, the plaintiff herein, as receiver appointed in supplementary proceedings of the property of Francis E. Smith, a judgment debtor, commenced an action in this court against Francis E. Smith, Claiborne Ferris, Francis Ferris and Caroline C. Hatch, to set aside certain fraudulent transfers of property made by said Francis E. Smith, at various times, to them severally. The defendant Caroline C. Hatch, put in a demurrer, which, on motion, was stricken out as frivolous ; and she, on applying to the court for leave to put in an answer, was allowed to do so, provided that she executed a bond with two sureties, to the effect that if the plaintiff finally recovered judgment against her she would obey such judgment, and would pay the plaintiff the sum and all costs thereby directed to be paid. The bond was accordingly executed, a copy of which is set forth in the complaint. The plaintiff recovered judgment in said action against the defendant Hatch, for $11,003.63. The plaintiff also recovered judgment in the same action against the defendant Claiborne Ferris for the value of certain property which he fraudulently obtained from the judgment debtor, Francis E. Smith, for $2840.50. The case contains only so much of the evidence as to raise the exceptions taken by the defendant Buncombe, who alone appealed. ¡ The exceptions taken by the defendant were as follows : The defendant, Buncombe, objected to the judgment recovered by the plaintiff in the action in which the said Caroline C. Hatch, and others, were the defendants, on the ground that the same provided for the payment of other judgments than those on account of which the plaintiff was appointed receiver, and in reference to which said action was commenced- without notice to the defendant, Buncombe, and in reference to which the defendant, Buncombe, had not become surety; and also that the said plaintiff had not been appointed receiver in reference to said judgments until oafter the execution of the bond set forth in the complaint; which objection was overruled by the court; to which decision the counsel for the defendant, Buncombe,- excepted. The defendant also objected to the order of the court of common pleas granting leave to the plaintiff to commence this action, on the ground that it was granted without any notice to such defendant. The objection was overruled, and the defendant excepted. The defendant also objected to the order of Judge Hilton appointing the plaintiff receiver, on the ground that it was not shown to be an order made in the case, over which the court of common pleas had jurisdiction, either of the persons, or the subject matter; which objection was overruled by the court, and to which decision the counsel for the defendant, Duncombe, excepted.</p> <p>The counsel for the defendant, Duncombe, moved for a dismissal of the complaint, on the following grounds :</p> <p>1. That the original affidavit and order, (if any there was,) from the court of common pleas upon which the order for a receiver was based, has not been introduced, and no jurisdiction is shown in the court of common pleas, or a judge thereof, to make an order appointing a receiver.</p> <p>2. That the plaintiff has not shown any judgment, or judgments, which would form the basis of any order supplemental to the execution, prior to the execution of this bond.</p> <p>3. That by the judgment offered in evidence, there has been created a greater obligation than existed at .the time of the execution of the bond, to the prejudice of the bond.</p> <p>4. The bond is not given according to the order made in the action. It is not.approved by a justice of the Supreme Court, and has never been accepted by the court.</p> <p>5. Bo demand has been made upon the defendant, Mrs. Hatch, nor upon.the sureties.</p> <p>The court denied the motion, to which decision on each ground before stated, the counsel for the defendant, Duncombe, severally excepted.</p> <p>The counsel for the defendant, Duncombe, proceeded to maintain the issue on his part, and thereupon the counsel for the plaintiff admitted thát the said judgment against Claiborne Ferris was compromised for the sum of $2000, and the money received by him as attorney for the said receiver prior to the commencement of this action, under an order of the court.</p> <p>The counsel for the defendant, Duncombe, then rested the case on his part. Bo further testimony being offered on either side, the counsel for the defendant, Duncombe, urged upon the court two propositions of law, on the facts .proved. 1. That the defendant, Duncombe, with his co-surety had executed0the bond in this action, with special reference to the amount of the two judgments in favor of DeG-oer & Rifflard, set forth in the complaint, and in which the plaintiff was appointed receiver, and as such for the benefit of said judgments had commenced the action against Caroline C. Hatch, Claiborne Ferris, and others; and that the amount of recovery on said bond should be limited to the extent of the said judgments and interest, and the costs in said action, and should not be held for the benefit of the judgments in which proceedings supplementary to execution were subsequently taken, and the plaintiff appointed receiver subsequently to the commencement of said action. 2. That by the terms of said judgment against Caroline C. Hatch and Claiborne Ferris, and others, it was ordered that the amount collected from the said Claiborne Ferris, should be credited ón account of the said judgment against Caroline C. Hatch, and that the said sum of $2000 paid by said Ferris was, in effect, a payment by the said Caroline C. Hatch, and in the absence of any special application, enured to the benefit and relief of the defendant, Dunscombe, and his co-surety in said bond, to the extent of said amount, on account of any liability on said bond, if any.</p> <p>The action was submitted' to the court, who subsequently made a decision containing the-findings of fact and conclusions of law, as follows :</p> <p>1st. That the plaintiff was duly appointed and qualified as receiver at the time, and in manner and form and in proceedings on judgments, as alleged in the complaint.</p> <p>2d. That on or about the 4th of October, 1861, the plaintiff, as such receiver, commenced and continued an action, in this court, against Claiborne Ferris, Francis Ferris, Caroline C. Hatch and Francis E. Smith, and on the 3d day of November, 1864, judgment was rendered, in said action, in favor of said plaintiff against all the defendants therein, and against the said Claiborne Ferris for the sum of $2480.50, and against the said Caroline C. Hatch for the sum of $11,003.63. That' by the terms of the said judgment, it was ordered^ that the amount collected from the said Claiborne Ferris, should be credited on account of the judgments against the said Caroline C. Hatch. Said judgment roll therein was filed in the office of the clerk of the city and county of New York, and the same still remains of record, and the said judgment, and every part thereof, remains due, and owing, from the said Caroline C. Hatch, to the plaintiff.</p> <p>■ 3d. That on the 29th April, 1862, the defendants, Caroline C. Hatch, Alfred H. Duncomhe and Samuel M. Elliot, "executed to the plaintiff, as such receiver, in the action above mentioned, under and in pursuance of an order of this court, a bond in writing, under their hands and seals, and acknowledged, a copy of which bond and acknowledgments are set forth in the complaint in this action.</p> <p>4th. That at the time of the execution of the said bond by the said defendants, the plaintiff had been appointed and qualified as receiver in the two proceedings and judgments mentioned in the complaint in this action.</p> <p>5th. That before the commencement of this action, the plaintiff, as such receiver, under and in pursuance of an order of this court, received from- the said Claiborne Ferris the sum of $2000, in full payment for the said judgment recovered against him; and said judgment, as to him, was thereupon satisfied of record.</p> <p>And as conclusion of law, the judge found that the plaintiff was entitled to recover of the defendants the sum of $5000, being the amount of the bond above mentioned.</p> <p>To which findings and conclusions of law the defendant, Alfred H. Duncomhe, within the time prescribed by law, excepted.</p>

THIS is an appeal from a judgment entered upon the report of a referee in favor of the defendant, dismissing the complaint of the plaintiff, with costs. The action was brought by the plaintiff, among other things, to have the rights of the parties ascertained and declared, in regard to the premises described in the complaint, and in the deed therein mentioned, and to recover damages for wrongfully withholding such premises from the possession of the plaintiff.

THIS is an appeal from a judgment entered in favor of the plaintiff, against the defendants, for $311.12, damages and costs, upon a trial at the Albany circuit in February, 1866.

THIS is an appeal by the defendant from a judgment entered in favor of plaintiff for $1956.90, upon a report of a referee.

THIS is an appeal by the plaintiff from a judgment rendered in favor of the defendant for costs. The action was tried at the Columbia circuit, April 13, 1864.

ACTION brought on the following instrument, against all the makers: “ Six months after date, for value received, with use, we jointly and severally promise to pay W. J. Van Slyck, or bearer, the sums set opposite our names, for and .in consideration of the right to make, use and vend Hicks’ & Peck’s Stump Extractor, pat. Sept. 30th, 1862, for one undivided half of the town of Maryland, Otsego co. E. T. Maryland, Deer. 15, 1864. J. P. Burnside, $75 [TJ. S. Bev.

THIS action was for the recovery of damages against the defendant for an alleged criminal conversation with the plaintiff’s wife ; and the trial resulted in a verdict in the plaintiff’s favor for $10,000. On a case and exceptions and on affidavits, a motion was made for a new trial on the grounds : 1st. That the verdict was excessive. 2d. Of surprise. 3d. That the verdict was against the weight of evidence. 4th. Of newly discovered evidence.

APPEAL by the plaintiffs from a judgment ordered at the circuit, on a trial before the court, without a jury.

WBIT OF EBBOB, to the Westchester oyer and terminer. The plaintiff in error was indicted for murder. Held: at and against the said Ellen Hicks, then and there feloniously, willfully, and of his malice aforethought, did shoot off and discharge; and that the said Thomas Fitzgerald, with the leaden bullet aforesaid, by means of shooting off and discharging the said gun, so loaded, to and against the said Ellen Hicks, aforesaid, did then and…

THE plaintiff, now the wife of Hugh ft. Quin, was formerly the wife of Benjamin Bhead, of Yonkers, Westchester county.

BY a special act of the legislature, Main street, in the city of Brooklyn, was widened, and the county court of Kings county was authorized to appoint three commissioners to estimate the expense and assess the damages thereof. The laws in force, in relation to opening and widening streets in the city of Brooklyn, were made applicable to the proceedings of such commissioners.

THIS action was brought, before a justice of the peace, in July, 1865.- The plaintiff complained that on or about the 28th day of May, 1865, the defendant’s dog bit and worried, injured and damaged the plaintiff’s sheep, causing the death of two, within two days ; and the plaintiff claimed $50 damage. The defendant denied the complaint.

THIS action was commenced before a justice of the peace of Livingston county, to recover of the defendant the value of certain baggage belonging ■ to the plaintiff delivered to the defendant for transportation as a carrier, and claimed to have been lost, through its negligence.

The action was brought by the plaintiff, a judgment creditor of the defendant James H. Gregory, after the return of an execution issued upon such judgment unsatisfied, to set aside certain conveyances of real estate ; to have the lands sold, and the proceeds applied to the payment of the plaintiff’s judgment, &c..

<p>ACTION for assault and battery. Defense. 1. A general denial. 2. That at the - time of the alleged'assault, the defendant was the owner and in possession of certain real estate, consisting of a store and building in the town of Starkey, Yates county, and the alleged assault was committed in defense of his possession and to prevent great bodily harm being done him by the plaintiff, who, with the assistance of- divers persons armed with axes, &c. wrongfully entered to expel the defendant. 3. Son assault demesne.</p> <p>On the trial at the Yates circuit in March, 1866, the following facts were proved. The defendant, Harpending, was the owner of a.block of buildings in the village of Dundee, known as Harpending’s block. On the 7th of April, 1865, and for about two years next preceding that date, Sage, the plaintiff, was in possession of certain rooms in said block, as tenant of the defendant, under a lease. On the 7th of April, 1865, Harpending instituted summary proceedings before a justice of the peace, under the statute, to remove Sage, on the ground that he was holding over after the expiration of his term, without the permission of -his landlord, alleging that the term of the lease expired on the 1st of April, . 1865. Sage appeared in the proceedings, and made an affidavit, admitting his tenancy, and his occupation of the premises, but denying that his term had expired, and alleging that by the terms of the agreement between him and Harpending his term would not expire till the 1st of April, 1866. The issue thus joined was tried before the justice on the 13th of April, 1865, who on the same day gave judgment in favor of Harpending, for the immediate possession of the premises, and his costs. On the same day, and before a warrant was issued, Sage perfected an appeal from said judgment to the Yates county court, and on such appeal put in an undertaking executed by a sufficient surety, conditioned as required by law to make such appeal effectual, and conditioned that the tenant would pay all rent accruing or to accrue upon the premises described in the landlord’s affidavit in said proceedings subsequent to the application made by said landlord to the justice to remove said tenant. After the appeal was perfected and the undertaking was put in, and on the 15th of April, 1865, the justice, at the request of Harpending, issued his warrant of possession, against Sage. After the appeal, and before the issuing of the warrant, it had become a question of discussion between the counsel of the respective parties, in the presence of Harpending, whether the justice had any right to issue his warrant after the appeal was perfected and the undertaking was put in. On Saturday, the 15th of April, about five o’clock in the afternoon, while Sage was absent, the sheriff, with the warrant and without force or violence, put Harpending into possession of the premises, with the understanding that Sage’s personal property might remain there, undisturbed, until Monday morning at nine o’clock. As soon as Harpending got possession he fastened the building securely, so that no one could enter it without breaking in, and on Sunday he commenced taking down partitions erected by Sage. On that day Sage went to the building and called upon Harpending to open the door, but he refused. Sage then broke into the building, through a window sash. Other persons acted in concert with him, one of whom used an axe to effect an entrance. The testimony tended to show that vsdule Sage was on the outside Harpending showed him a pistol and told him he must not come in, and that as soon as Sage broke through the window, he went towards Harpending as fast as he could. When he was about five feet from Harpending, the latter fired upon him, with the pistol and shot him in his left breast. Sage was protected by his clothing and the contents of his vest pocket, so that the skin was not broken, but he received a bruise upon the breast. As soon as the pistol was fired, Sage sprang upon Harpending and took hold of him; Harpending struck Sage on the head with the pistol, and drew blood, but soon after, the pistol was taken from him, and, as the testimony tended to show, he was overpowered and compelled to surrender possession of the premises to Sage. The action was brought for the personal injury sustained by Sage, and he recovered a verdict for $300.</p> <p>On the trial, the judge ruled that unless the defendant could show that the warrant was legally issued, upon a proper judgment, and proceedings had for the purpose of dispossessing the plaintiff, the defendant was not justified in holding possession of the premises. He also ruled that the appeal removed the proceedings from the justice to the county court, and the justice had no right to issue the warrant after the notice of appeal was served on him, and that the warrant was void.</p> <p>He also charged the jury that the appeal and bond given, and the proceedings had by the plaintiff, operated as a stay of proceedings, so that the justice had no right to issue the warrant; that the warrant was void; and that the defendant was not rightfully in possession.</p> <p>He also charged that the defendant was a trespasser in talcing possession of the building, and the plaintiff had a legal right to break into the building, and the defendant was guilty of a wrong in resisting the plaintiff in getting in.</p> <p>The counsel for the defendant excepted to these several rulings, and requested the judge to charge the jury that if the defendant had possession in fact, he was justified in using violence if necessary to defend his possession. The court declined so to charge, hut charged that the defendant was a mere trespasser, who had hut recently entered, and the plaintiff had the right, if compelled to do so, to use force to eject the defendant.</p> <p>The defendant’s counsel also requested the court to charge that the judgment before the justice between the parties, was res judicata, and settled the rights of the parties, and that the plaintiff was holding over his term; hut the court declined, and charged that the judgment ceased to be res judicata, after the appeal was perfected, with the security.</p> <p>The defendant’s counsel also requested the court to charge that the plaintiff could not recover in this action, except on the ground that excessive violence was used by the defendant, in defending his possession; but the court declined, and charged that it was not so in this case.</p> <p>The defendant’s counsel also requested the court to' charge that from the undisputed facts of the case, the plaintiff was not entitled to recover against the defendant, for the reason that all the force he used, was insufficient to maintain his possession,' but he was overpowered and compelled to surrender the same ; but the court declined so to charge, or to charge on that point otherwise than he had already done.</p> <p>The counsel for the defendant excepted to. the several refusals to charge, and the several instructions above stated, and the court ordered a stay of proceedings on the verdict, and that the exceptions be heard at the general term in the . first instance.</p>

mHIS was an action for trespass on real estate described JL as a lot in the city of Eochester, on the south side of Champion street, thirty feet front and eight rods deep. The cause was tried at the Monroe circuit, in January, 1867, and a verdict was rendered in favor of the defendant, under the direction of the court.

The action was upon a promissory note made by the defendant and one Jacob Troutman, dated October 24, 1862, by which the makers promised to pay the plaintiff $100, three months after date, with interest. The defense set up, in the answer, was that the note was signed by the defendant without consideration, and as surety for J acob Troutman, the principal maker; of which the plaintiff had notice at the time of making the note.

THE plaintiff seeks to recover from the defendants damages for selling stock without notice, and without giving sufficient time to furnish the. requisite advance for a margin. There seems to he no dispute about the facts.

<p>The proper charges and expenses of converting a security into money, are first to be deducted from the gross proceeds ; and it is the balance, only, which is applicable to the discharge of the debts.</p> <p>This is especially so, when the creditor is also the factor of the goods; he having a lien for all those .charges, which cannot be divested without his consent. The factor is accountable- only for the balance, after deducting his charges and expenses.</p>

<p>On the trial of an indictment for murder, it appéared that the meeting of the accused and the deceased was casual, they having had no previous acquaintance ; that the accused, taking offense at some trifling remarks made by the deceased, in passing him in the street, near midnight, stabbed the deceased with a knife, which resulted in immediate death. Held, that the killing, though groundless, and probably without any intent to take life, was “ by an act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any design to effect the death of any particular individualand that the evidence would have justified a verdict of murder in the first degree'; but if that crime was not established, it was clearly manslaughter in the third or fourth degree. That if not one of these offenses, there was no crime committed, within the definitions of the statutes. Held, also, that the offense was not within the definition of murder in the second degree, and the jury ought not to have, been instructed that there was evidence upon which they could be permitted to find such a verdict.</p> <p>A party is not permitted to assert, or to present evidence to show, that one state of facts is true, and afterwards to assert or prove to the court that his prior evidence was untrue, or not to be relied on. But where a witness has. given evidence against the side for the support of which he has been called, and the court can perceive good grounds for apprehending that the witness has testified under a mistake of the facts, or intentionally falsely, and there is no bad faith on the part of the party producing the witness, he is allowed to give evidence explaining, or even contradicting, his own witness.</p>

Jacob G-. Conrad, a broker, at Chicago, Illinois, made a general assignment to the plaintiffs, in trust for the benefit of creditors, September 30th, 1864. Held: that the assignment to the plaintiffs was legal and valid, and the plaintiffs entitled to recover under it the $1500 in the hands of Myers & Company; but this valid assignment was held ineffectual to transfer the fund in the Importers and Traders’ Bank. The plaintiffs appealed.

APPEAL, by the defendant, from a judgment entered upon the report of a referee.

88. The action was brought to recover damages for the non-performance of a contract for the sale of goods by the plaintiffs, as commission brokers, to the defendants, made on the 11th of March, 1863. The facts appear in the opinion of the court.

<p>APPEAL from a judgment entered on the report of a referee.</p>

The action was brought to recover a balance due for the value of lumber sold by the plaintiff to the defendant ; and also a small demand for services rendered by one D. L. Aiken for the defendant, assigned to the plaintiff. The complaint alleges a general indebtedness. The answer contains a general denial and a • counter-claim.

THIS is an appeal from an order denying a motion for a peremptory mandamus, made for the purpose of compelling the Croton Aqueduct Board to award to the relators a certain contract for building a stone tower, engine house, or boiler house, at or near 173d street, near the high bridge.

APPEAL by the defendants, from a judgment entered upon the report of a referee. The action was for an accounting. The plaintiff claimed that the defendants had made a contract with him, whereby he had become a partner in their business from January 1,1861, to January 1, 1864 ; that he had put in over $8000 as capital ; and that he was to have 17¿ per cent of the profits, and bear a like proportion of the losses.

THIS was an appeal from a decree of the surrogate of the county of New York, refusing probate to certain paper writing propounded by Horatio Gr. Abbey as the will of Edwin B. Christy, deceased. The facts appear in the opinions of the court.

The action was brought to recover of the defendants, as carriers, under the name of “Westcott’s Express,” the sum of $300 for the loss of the plaintiff’s baggage. The defendants set up as a defense, a special contract, limiting their liability to $100, in case of loss. On the trial before the referee, Eobert F. Westcott being duly sworn as a witness on the part of the defendants, testified: “I am superintendent of Westcott’s Express, and have been since 1861.

THIS action was brought to recover the value of goods sold by the plaintiff to the defendants, through their agent, one Portong.. The action was tried before a justice of this court, without a jury, who found in favor of the plaintiff; and judgment being entered accordingly, the defendants appealed.

THIS is an appeal from an order of Justice Potter, made at special term, sustaining a demurrer to the plaintiff’s complaint in this action. The plaintiff brings this action to recover from the defendant, as a stockholder in the Pacific Coast Petroleum Company, of New York, (a corporation formed under the act of 1848,) the sum of $3791.61, being the amount of a certain judgment ' obtained by him against said company for services as a civil engineer and traveling agent.

MOTION to continue an injunction. On the 10th day of January, 1857, the defendants, as trustees of theWestern Vermont Railroad Company, a corporation then in existence, leased its road, situated in the state of Vermont, to the Troy and Boston Railroad Company, to he used and possessed by them for the term of ten years from the said tenth day of January, 1857 ; and the lease contained a covenant,- by which the lessees agreed to surrender the said road, at the expiration of…

PPEAL from an order of Justice Bacon, at special term, setting aside the defendant’s judgment for costs, in a suit originally commenced in a justice’s court, and dismissed there upon a plea of title by the defendant. The form of the pleadings, as well as the questions presented upon the appeal, are stated in the opinion of the court. The plaintiff, on a trial of the action in the Supreme Court, recovered less than fifty dollars.

THIS action was brought by the plaintiffs, liquor dealers in the city of New York, to recover the possession of twenty barrels of pure spirits, shipped upon the verbal order of Henry Olay Barnes after the 23d day of June, 1866, and taken from the storehouse by Barnes on the 2d day of J uly. The plaintiffs succeeded in finding eleven barrels, the residue having been disposed of by Barnes before the suit was commenced.

The action was brought by Cornelia E. Whitney against her husband, Hampden Whitney, and was founded upon facts which are stated in the opinions given below. The defendant demurred to the complaint, contending that a wife could not maintain such an action against her husband.

THE plaintiff recovered $5000 damages on the trial of this action at the Tioga circuit, in August, 1866. John 0. Faulkner, the intestate, was an oilman and brakeman in the employ of the defendants, and while running on the defendants’ road, was killed by the breaking down of a bridge of the defendants’ over the Conhocton river, and the consequent fall of the car on which he was riding.

CASE agreed upon. The plaintiff claims judgment for the penalty of $50, for the defendants asking and receiving a greater fare from him, on their railroad from Syracuse to Canastota, than they were authorized by law to demand and receive.

ACTION on two promissory motes. Defense, payment. The action was tried at the Otsego circuit in June, 1866, when the jury rendered a verdict in favor of the plaintiff for the full amount of the notes, $346.55. The defendant moved for a new trial on a case and exceptions.

The plaintiff and defendants, with seven others, were heirs of Samuel Brand and Mary Brand, late of Durham, Grreene county, deceased. Mary Brand survived her husband, Samuel Brand. And the sum of $766.66 was set apart, and the interest thereon was to be paid to the said Mary Brand annually, during her life, (which was called her dower-right,) and said principal sum, at her decease, was to be divided equally among said ten heirs.

The relator, Mary G. Bean, apprehending that she might be dispossessed from leased premises, as the result of summary proceedings instituted under the statute, before the relator, as City Judge of the city of New York, now applied for a writ of prohibition to restrain him from entertaining such proceedings.

Appeal by plaintiff from an order of the Broome special term, made in October, 1866, setting aside a judgment entered in favor of the plaintiff against the defendant, and the execution thereon. The judgment in question, which was in favor of Daniel Goodsell, the plaintiff, against Beuben H. Phillips, the defendant, was entered on an award of arbitrators for $176 79 besides interest and costs. The award was dated February 13, 1866.

| Motion for an injunction. ( Í This action was brought by John Bother Faber, the manufacturer of the article known as the “A. W. Faber” lead pencil, against John H. Faber, and his agent in this country, J. S. Frankenthal, for an injunction and damages for violation of the trade mark claimed by the plaintiff. The plaintiff resides and carries on the manufacture of pencils at Stein, and the defendant J. H. Faber, at Schweinaw; both of which places are near Nuremberg, Germany.

<p>APPEAL from an order overruling a demurrer to the complaint, with costs, &c.</p>

Action on a charter-party executed in duplicate by the plaintiff and defendants respectively, in the city of New York, dated the 15th of August, 1862, whereby the defendants chartered the French ship “Belle Anais,” of which the plaintiff was master, for a voyage from New York to Havre with a cargo of assorted merchandise, for the sum of 25,000 francs payable in cash in Havre on the arrival of the vessel at that port.

ACTION of ejectment to recover possession of a house and lot on southerly side of 48th street, in the city of New York.

THE plaintiffs seek to enjoin the defendants from disclosing or using a certain secret process or method of compounding and applying porcelain enamel to iron and other wares. The secret was, on the 22d day of October, 18611, agreed to be, and on the 22d day of November, 1861, was, transferred by the defendant Reese and wife to Josiah Foster, jr.; by Foster to J. B. Hubbard, April 28, 1864, and by Hubbard to two of the three plaintiffs, September 21, 1864.

THE complaint in this action alleges that the plaintiff employed the defendant to buy forty bonds of $500 each, in all $20,000, of the San Francisco Water Works Company. That the defendant, while employed as the plaintiff’s agent, bought the bonds for $23,000. That the plaintiff claimed and demanded the bonds of the defendant, but he refused to deliver them, and converted the bonds to his own use.

The action was brought against the defendants, composing the firm of J. B. Lippincott & Go. to recover moneys by the plaintiff paid, laid out, and expended for work, labor and materials necessary to the preparation of a work entitled “ Smith’s New Geography” for publication, and for divers maps, plates and drawings procured by the plaintiff in the preparation of said work, and' delivered to and used by the defendants.

In 1863 and 1864, the defendants were co-partners in business in New York, under the firm name of Geo. Savory & Co. and in Buenos Ayres, under the firm name of E. H. Fol-mar & Co. The plaintiff was in their employ as confidential clerk and book-keeper in the city of New York, down to about 24th May, 1864.

The complaint alleged that on June 17,1864, the plaintiff delivered to the defendants twenty-two cotton warps belonging to the plaintiff, to be sold for him on commission, the.proceeds to be accounted for by them to him; the commission to be 2| per cent for selling and guaranty—an alleged sale by the defendants—a demand of an account of sales and refusal; and the action was brought for the proceeds.

<p>THE object of the action was to compel the defendant, as the equitable lessee, to perform the covenants contained in a lease of thirty-three lots of land at the corner of Sixty-first street and Third avenue, in the city of New York, made by Myndert Van Schaick, the original plaintiff, to Henry Yan Schaick.</p> <p>The action was originally tried before the. special term held by Justice Davies, in the city of New York, on the 15th day of March, 1859, and resulted in a judgment for the plaintiff. An appeal was taken by the defendant to the general term, where a new trial was ordered. A second trial took place before Mr. Justice Mullir, in December term, 1863, when judgment was again given for the plaintiff. The appeal is from that judgment. The original plaintiff having died, the action was continued in the name of his executors.</p> <p>The facts shown in the case on the last trial were as follows:</p> <p>In January, 1853, the city of New York made a grant to thirteen persons of the right to construct and operate the Third Avenue Eailroad. ' Three stage companies, the Pearl street, Harlem and the Bullshead lines were then running on the Third avenue. The grant was obtained through their influence, with the understanding that their stage property was to be purchased by the grantees. The Pearl street line then had a lease for ten years of the property in question from Myndert Van Schaick, the original plaintiff. On the 4th of January, 1853, an unincorporated association was formed of the grantees, including the proprietors of the three stage lines, under the name of the Third Avenue Eailroad Company. The articles of partnership are set out at page 34. The proprietors of the three stage lines insisted upon having a definite contract with the association for the purchase of their lines, and on the 28th of April, 1853, a resolution was passed unanimously to purchase the property of each line. The resolution provided for the purchase, from Dewey, Dingledein & Co., the proprietors of the Pearl street line, of their lease of the thirty-three lots, with the buildings thereon. The next day, Dewey, Dingledein & Co. made a contract accordingly. Between that time and the 16th of August, 1853, the members of the association, at its meetings, had discussed the propriety of forming a corporation from the association, where the members of the association should have the same rights, and escape personal liability beyond the amount they held in it. And the propriety of having a lease, from Myndert Van Schaick, of the thirty three lots held under the lease to Dewy, Dingledein & Oo. was also discussed. He was willing to give such a lease. A resolution was thereupon offered in the association on that day, that it was expedient that a lease for fifteen years, from July 9,1853, be executed “ by Myndert Van Schaick to Henry Van Schaick, to be held by him for the benefit of this company, or such other company as may be formed to carry on the Third Avenue Railroad, shall, at anytime hereafter, have a right to demand of him;” and “ that this company, and such other company as may be hereafter so formed in its stead as above, will and do assume” the covenants, &c. This resolution, after lying over one day for consideration was, on the 17th of August, 1853, passed unanimously, every member of the association voting. Henry Van Schaick was not, at the time, a member of the association. It was in the discussion said that a corporation shoúld be formed under the general railroad act, and that the association should sell out to it, and that if the corporation were formed, “ this lease' was to be for the benefit of the corporation, and the corporation was to have it from Henry Van Schaick the same as the association..” Among the suggestions, it was said that it would “ be for the benefit of the partnership and the succeeding corporation, that the title should not be placed, in Dewey, Dingledein & Co., but in some person to hold as trustee ;” and Henry Van Schaickwas, therefore, selected as the trustee. In pursuance of the resolution, a new lease was made by Myndert Van Schaick to Henry Van Schaick of the lots above mentioned, bearing date April 16,1853, and acknowledged August 18, 1853. At the time of its execution, there was an agreement executed on behalf of the association, by its president, with Henry Van Schaick, in pursuance of the resolution of August 17, 1853. This agreement declares distinctly that the lease from Myndert Van Schaick to Henry Van Schaick, “ though absolute on its face, was made to the party of the first part, (Henry Van Schaick,) solely for the benefit of the said parties of the second part, and of such other company as may be thereafter formed to succeed them in their business,” &c.; and the company agreed to assume, and that it did assume, the performance of its covenants. It was always kept in an iron safe, belonging first to the association, and then to the corporation.</p> <p>On the 8 th day of October, 1853, the corporation was formed under the same name which the unincorporated association bore — the Third Avenue Eailroad Company. The corporation consisted, with one exception, of the members of the unincorporated association. The unincorporated association, by deed dated the same day, conveyed to the corporation all its property except a portion reserved to pay certain of its debts, but including the thirty-three lots in question. It was a sale from the association as an unincorporated association to a corporation consisting of the same persons. The assignment, in terms, conveyed to the corporation all the leases belonging to the association. It was a simple carrying out of the previous plan for converting the association into a corporation. The unincorporated association had been in the possession of the thirty-three lots from the time its road was completed, under the lease to Dewey, Dingledein'& Co., the Pearl street line. It continued in possession when the lease •was made from Myndert Van Schaick to Henry Van Schaick • as trustee for the association; and when the association became a corporation, the possession continued in the corporation, and the corporation went on paying the rent to Myndert Van Schaick. This possession continued until 1858, when the corporation assigned the lease to Searles, after the formation of the corporation, and on the 7 th of November, 1853 ; and it being in possession of the thirty-three lots of land, Henry Van Schaick assigned to it the lease he held as trustee from Myndert Van Schaick.</p> <p>Myndert Van Schaick had held in his own name leases of three other pieces of real estate for the association ; and on the same day that Henry Van Schaick made his assignment to the corporation, Myndert Van Schaick assigned to the corporation two of the leases ; the third he, at the request of the association, transferred to other persons to pay debts of the association.</p> <p>On the formation of ^the corporation, as above stated, all the persons interested in the association, except one, became and were corporators ; and the corporation succeeded to all the property, rights, duties and obligations of the association, and went on with its business without interruption, “ with the same drivers and same everything.”</p> <p>From the time of the execution of the assignment of the declaration of trust from Henry Van Schaick and the assignment of the lease to the corporation, those papers, respectively, were kept in the safe of the association, and then of the corporation.</p> <p>When the Central Park was opened, the corporation paid the assessment upon the lots, and when an award was made for part of the lots taken for widening Fourth avenue, Myndert Van Schaick paid to the corporation its proper proportion of the moneys.</p> <p>On the 1st of July, 1854, the corporation made a mortgage to J. Philips Phoenix and Cornelius W. Lawrence, for $150,000, and among the mortgaged property included the thirty-three lots leased, together with the depots, buildings, and improvements thereon. The mortgage recites an agreement to execute and deliver to the mortgagees’ trustees, as security for bonds to be issued, its railroad, “ with all and singular the leases, depots, stables and other buildings, cars, &c. property and appurtenances of the said railroad, as hereinafter mentioned," and then includes in the - description : “ A certain indenture of lease made by Myndert Van Schaick to Henry Van Schaick, dated the 16th August, 1853, duly recorded, with the demised premises therein mentioned, containing thirty-three lots of ground on Sixty-first street and on Fourth and Lexington avenues, together with the depots, buildings and improvements thereon erected, with the rights, privileges and appurtenances to said described premises belonging ; and also all the estate, right, title, interest, term of years yet to come, and unexpired property, possession, claim and demand whatsoever, as well in law as in equity, of the said Third Avenue Railroad Company, in and to the said demised premises.”</p> <p>January 13th, 1858, the corporation sold the lease to Samuel Searles for $5. The buildings then upon it had cost several thousand dollars. Searles was one of the car-drivers employed by the corporation at $1.50 per day. He sold the buildings for $300, and never paid any rent. He owned, at the time, very little property, and the president, who' made the sale to him, did not know that he had any property ; and he states that the sale was made to him to get rid of the liability for rent.</p> <p>There was no contradiction of any of the foregoing facts. . The conclusions of law of the justice before whom the action was tried, were as follows :</p> <p>“ That the defendants are subjected to the burthens of said lease, certainly to the extent of relieving and indemnifying Henry Van Schaick, to the extent of his liability to the plaintiff, and such right to indemnity of said Henry Van Schaick is the property of the plaintiff.</p> <p>That in equity the plaintiff is entitled to enforce against the defendants the duties and covenants in said lease contained, they having accepted the same as made for their benefit and advantage, and having used and occupied the premises under the said lease as lessees, and not otherwise.</p> <p>That the plaintiff is entitled to recover against the defendants the amount of unpaid rents, from the first day of February, 1858, quarterly, with interest thereon.</p> <p>That the defendants pay, discharge and satisfy all the unpaid taxes and assessments on the lands described in said lease.</p> <p>That said defendants pay the rent already due, and the rent to become due and payable upon said lease as the same shall become due and payable, and also pay and discharge seasonably all taxes and assessments which have been, or may hereafter be levied, assessed or charged upon said premises during the term in said lease expressed.”</p> <p>Judgment having been entered by the plaintiff on the said decision, the defendants appealed.</p>

MOTION by the plaintiff for judgment on a verdict rendered in his favor, subject to the opinion of the court at general term. ' The case proved is briefly this: In March, 1865, the defendant was the supervisor of the town of Sparta, in tfie county of Livingston, and as such was engaged in raising recruits to fill the quota of that town under the call for men for the army and navy of the United States, issued by the president on the 19th December, 1864, or the next call…

<p>Where a vessel is run hy the master, on shares, it is not a chartering, nor does the master become owner, for the time being; and parties dealing with him are justified in considering him clothed with the usual authority of a master; especially where one of the owners indorsed the action of the master, in dealing with such parties, before they gave him credit.</p> <p>Under such circumstances, the master can bind the vessel and her owners, for supplies and necessaries furnished.</p> <p>Where the master testifies that money advanced to him, and expended, by the plaintiffs, was for the account of the vessel; that the plaintiffs rendered him an account, and he certified it to be correct; the mere fact that he is unable to state, after the lapse of several years, what the money was expended for, will not weaken the force of such testimony.</p>

<p>APPEAL from a.judgment entered upon the report of. a referee. The action was brought to recover the value of certain personal property, consisting of railroad locomotive engines, cars, machinery and fixtures, claimed to belong to the plaintiffs,, and alleged to have been converted by the defendants, and of the value of $32,000.</p> <p>The defendants, by their answer, First, admitted that they were an incorporation, (under the general railway act, incorporated February, 1859,) but denied each and every other allegation in the complaint contained.</p> <p>Second. They alleged that they derive title to the property in the complaint set forth, under and by virtue of a purchase thereof made by them, for the full value of said property, in good faith, and without notice of the plaintiff’s title or claim herein, from Charles Congdon and Bobert B. Potter, in February, 1859, and that such purchase was made and the consideration therefor paid, with the knowledge and assent of the plaintiffs, and without any notice, suggestion, assertion or claim by them that the said Potter and Congdon had not perfect title to said property, or that the plaintiffs had any claim thereto, or interest therein, whatever.</p> <p>Third. • That in the year 1857, Shepherd Knapp and William H. Townsend, trustees, and Septimus Crooks, brought .their certain action in this court, against the Canandaigua and Elmira (formerly called Canandaigua and Corning) Bail-road. Company, and others, to foreclose a certain mortgage, dated July 2d, 1850, made by that company to the said Knapp and Townsend, trustees, and claiming, among other property, that claimed by the plaintiffs herein, in which action the plaintiffs herein were duly served with process and made parties defendant. That in said action such proceedings were thereupon duly had, that on the 18th day of May, 1858, the said court, among other things, duly ordered, adjudged and decreed that the defendants in that action, and each and every of them, and all persons claiming, or to claim, from, by, through or under them, or either or any of them, and all persons having a lien subsequent to said mortgage, dated the 2d day of July, 1850, whether by the subsequent mortgages set forth in the complaint in that action, or by judgment, decree or otherwise, upon the mortgaged premises and property claimed in that action, and all persons claiming, or who might claim, from or under the defendants in that action, or any or either of them, he, and they were thereby forever barred and foreclosed of and from all equity, and all manner of right of redemption and claim ofj in or to said mortgaged premises and property, and every part and parcel thereof, which said mortgaged property embraced the property claimed in this action.</p> <p>That under and by" virtue of such judgment, the property in the complaint mentioned was duly sold, and that the same was duly purchased on the 23d day of July, 1858, by parties from whom these defendants took title, and that such purchase was made, and the consideration therefor paid, with the knowledge and assent of the plaintiffs, and without any notice,, suggestion or claim made or asserted on their part, of any title to; or right in the said property in the complaint mentioned.</p> <p>Fourth. That on or about the 24th day of January, 1861, the defendants purchased, for a valuable consideration, the said property claimed in the complaint herein, of the Elmira, Canandaigua and Niagara Falls Eailroad Company and paid therefor. And that such purchase was made by the defendants in good faith, with the knowledge and assent of said plaintiffs, for a valuable consideration, and without any notice, suggestion or claim made or asserted on their part of any title to or right in the property in the complaint therein mentioned. And that the plaintiffs, or some of them, were interested in the consideration paid on such last mentioned sale for the property now claimed by them herein.</p> <p>Wherefore the defendants claimed and insisted that the plaintiffs of any claim or title they had to the said property in the complaint mentioned or any thereof, were wholly barred, foreclosed and estopped in law, equity and conscience from setting up or asserting the same herein. And they demanded judgment herein against the plaintiffs, with their costs, &c: The facts were as follows : The Canandaigua and Corning Railroad Company was incorporated in 1845, and its name changed in 1850 to Canandaigua and Elmira Railroad Company, by which latter name it will herein be designated. It was the first of three railroad companies which have possessed the line. This first company executed a mortgage dated July 2d, 1850, to secure §300,000 of bonds, which embraced the road, locomotives, cars, shop machinery, &c. of the company, acquired and to be acquired'. Each bond so issued had a cer-r tificate indorsed thereon, stating that such bond was included in the mortgage. Afterwards the company executed its second, third, fourth and fifth mortgages, each to secure further issues of bonds, and each subject in terms to the lien of the first mortgage. In June, 1855, the company executed'a chattel mortgage to its directors, (which included the plaintiffs,) to secure them for liabilities incurred on its behalf; and this mortgage was followed by a new mortgage in June, 1856, embracing the same and some additional property, which is the property mentioned in the complaint; .and the other directors subsequently transferred their interests to the plaintiffs and one James Harris. For-default made August 2, 1855, on the third- mortgage, suit was commenced, the company’s property sequestered, and a receiver appointed in September, 1856, and the road and mortgaged property sold to one Holmes, from whom it was transferred to the Elmira, Canandaigua and Niagara Falls Railroad Company,, the second railway company which possessed the line; of which company Mr. Diven was president—called therefore . frequently “ Diven’s Company.” Thereafter, for default on the first mortgage, suit was commenced' in July, .1857, and a receiver of the property appointed. This suit, was contested by the Diven company, on the ground, among others, that the first mortgage did not embrace and hold the rolling stock. The plaintiffs here were defendants' in that suit, but did not appear and defend. Judgment was ordered against them “ that they may be forever barred and foreclosed of and from all equity of redemption and claim of, in and to said mortgaged premises and property, and every part and parcel thereof.” Judgment having been rendered in favor of the holders of the first mortgage, the property was accordingly, in July 1858, sold. The sale embraced the rolling stock, shop machinery, &c. included in the plaintiffs’ chattel mortgage ; and they forbade it. All the property was bought by Congdon and Potter, and subsequently conveyed for value to the defendants, who are the third company which has possessed the line. Diven’s company appealed from the judgment in the first mortgage case, and that judgment was affirmed. That company then moved for a new trial, which was denied, and then in June, 1860, made a settlement with the first mortgage holders and their assignees, the defendants here, by which it was arranged that the property should be appraised, and three fourths in value set off to the defendants here, and one fourth to Diven’s company, and the litigation thus settled. The property was accordingly appraised, the division made, and releases executed. By this division, the mortgaged engines and cars were set off to the defendants here, and valued and set off as if free of the present plaintiffs' chattel mortgage. The defendants claimed that the plaintiffs knew of the division, and some of them were interested in it, but they made no objection to it, and asserted no claim under their mortgage. In April, 1859, these defendants had leased the railroad to the Erie company, with the privilege of taking the rolling stock with the road, on certain conditions to be complied with ; meantime it remained in the shops at Canandaigua. In July, 1861, the plaintiffs demanded the rolling stock from Bathbun, a director of the defendants at Elmira, who referred them to a superintendent, of whom also, they demanded it, who declared that he had no control over it and referred them to’ certain officers of the company '; whereupon they brought suit.</p> <p>The referee found as conclusions of law : First. That the said mortgage of the Canandaigua and Elmira Railroad Company embraced and was a valid and subsisting lien on the property mentioned in the complaint in this action prior and superior to the lien created by the mortgages to the plaintiffs herein, and that under the judgment and proceedings in the action to foreclose that mortgage, such property (excepting only the particular articles in the findings and facts therein twenty-seventhly mentioned) was duly sold and became the property of the purchasers at such sale, and those claiming under them.</p> <p>Second. That the said third mortgage of the said Canandaigua and Elmira company also embraced and was a valid and subsisting lien on the property claimed by the plaintiffs herein, prior and superior to the lien created by the mortgages to the plaintiffs in this action, and that under the judgment and proceedings in that action, the same was duly sold and became the property of the said George B. Holmes, and on the sale by him the property of the said Elmira, Canandaigua and Niagara Falls Company subject to the lien of such first mortgage.</p> <p>Third. That the plaintiffs herein were duly made defendants to the said action brought by Knapp and Townsend, trustees, to enforce said first mortgage, and that by the foreclosure therein, they became and are barred and estopped from contesting the validity of said mortgage, and the superiority of the lien thereof, and of the title acquired thereunder, over their title or right to the property mentioned in the complaint in this action.</p> <p>Fourth. That the said mortgages to the plaintiffs having been given in contemplation of the insolvency of the said company, were void as against the creditors of that company and those claiming under them.</p> <p>Fifth. That the plaintiffs herein, and their associates, were not as against the prior mortgages of the Canandaigua and Elmira company, and those claiming under them, bona fide mortgagees for the value of the property embraced in the mortgages to them (said plaintiffs herein.)</p> <p>Sixth. That the property in the complaint mentioned was not the property of, the plaintiffs herein, as alleged, nor were they entitled to the possession thereof, nor has the same been wrongfully converted by the defendants herein.</p> <p>Seventh. That the defendants were entitled to judgment in this action. ■</p> <p>Judgment being entered accordingly, the plaintiffs appealed.</p>

<p>The defendants, by an entry upon their records, declared that the premises of the plaintiff, and the business pursuit therein conducted, in their opinion, and in fact, were in a condition dangerous to life and health; and a public nuisance, and ordered that the business of slaughtering animals on the said premises be abated and discontinued, &c. The order was directed to be served as required by law, and executed by' the Board of Metropolitan Police. The defendants subsequently passed another ordinance, declaring that the slaughtering of animals should not be permitted or conducted after the 15th of June, 1867, at any place in the city of New York south of 42d street; nor at any place north of that street, nor in the city of Brooklyn, without a special written permit.</p> <p>The evidence showed that the plaintiff’s premises were well sewered, and the business of slaughtering was conducted there by the plaintiff with the greatest care and cleanliness it was capable of, and that it was not, in this case, in fact a nuisance; and nearly all of the neighbors of the plaintiff, for a considerable distance, united in declaring, in writing, that the premises were not offensive, annoying or prejudicial to health, and in requesting the defendants not to interfere with the plaintiff in the prosecution of his business. The evidénce also proved, as a fact, that the slaughtering of animals could be so regulated and conducted as not to be in any case a nuisance, or prejudicial to the public health.</p> <p>Sold that the defendants were clearly exceeding any authority conferred upon them by the laws, in attempting to declare any thing to be a nuisance which is not such by the common law. And that they should be restrained by injunction from enforcing the said ordinance against the plaintiff as the proprietor of a nuisance, and, until the hearing and disposition of the case, from interfering with his business, except for police inspection and regulation.</p> <p>While the inspection and regulation of pursuits in a large city, which are liable to become injurious to the public health and safety, are within the police powers lawfully delegated to, and exercised by, local and municipal corpo- • rations, the power to suppress such pursuits, when they have been immemorially exercised, is wholly beyond and above the police powers, and extends into the domain of legislative function. Fer Leonard, J.</p> <p>The Metropolitan Board of Health, holding office by the appointment of the governor, and not being elected by the people of the city of New York, nor appointed by any power so elected, are not officers holding from a source permitting the exercise of local legislation to be conferred on them.</p> <p>The decision in The Feople v. The Foard of Metropolitan Folice, (33 Sow. Fr. 52; 48 Bari. 524,) approved.</p>

<p>MOTTOH to confirm report of commissioners, which was signed by two of the number only. •</p>

The complaint alleged that the defendant had become possessed of, and wrongfully detained from the plaintiff, the following goods and chattels of the plaintiff, that is to say: Securities (partially written and partially printed) known as “ scrip of the Great Western Insurance Company,” in and of the city of New York ; one portion of said securities being of the value and amount of the sum of thirteen hundred and ten dollars of said scrip, issued by the said company in the…

THIS is an action against the defendants for wrongfully and unlawfully selling 100 shares of Erie Railroad stock, and 200 shares of Cleveland and Pittsburgh Railroad stock. The plaintiff had deposited upwards of $1900 as security with the defendants, and they advanced, this money and • bought these stocks for him. This purchase was made April 26th, 1865. On the 27th of May the market price of the stocks had fallen.

<p>Where an answer alleged that it was agreed between her and the plaintiffs upon her purchasing goods of them, “ that she was to make payments, fi’om time to time, as she could, out of her business, and from the proceeds of the sales” of the goods; Meld, that it was erroneous for the judge, at the trial, to construe the answer as meaning that the defendant was to make payments, from time to time, as she conveniently could.</p> <p>Meld, also, that it was erroneous for the judge to charge the jury that if they believed that the defendant purchased the goods with the understanding that she should pay for them when convenient, and that it had not been convenient for her to pay, before the action, they should find for the defendant.</p> <p>Upon such an answer, the burden of proof is with the defendant.</p>

THE defendants insured the plaintiffs, in the sum of $8000, upon eight-tenths of their brig, E. F. Newton, after-wards called the Antonio Mathe, against marine risks, in the xisual form ; the brig being, valued at $10,000.

<p>THIS was an action for trespass on land, and was tried by the court, at the Chautauqua circuit, in January, 1867.</p>

This money was the award of damages to be paid by that company for land taken by it for its railway purposes, in the city of • Buffalo ; and the money is claimed by the New York and Erie Railway Company, and also by the Buffalo and New York and Erie Railroad Company.

<p>An action will not lie against a town, to recover a claim arising upon contract.</p> <p>Parties who contract to render services for either town or county do it with a knowledge that their remedy, to'procure payment is through the action of the board of supervisors. Where that body neglect or refuse to discharge a duty fairly imposed by law, performance Will be compelled by mandamus.</p>

<p>Where the plaintiffs loaned to the defendants $10,000 in gold, and the latter agreed to repay the loan in gold, and repeatedly, afterwards, promised to return gold to that amount; Sold that the act of congress, commonly called the legal tender act, did not apply to the transaction; and that the plaintiffs Were entitled to damages for a breach of the contract in not returning the $10,000 in gold. (Welles, J. dissented.)</p> <p>Sdd, also, that the plaintiffs had not released the defendants from the obliga- • tion of the contract, by receiving from the latter their check'for $10,000, on which they received the money in legal tender notes, crediting the check to the defendants in their general account; where it appeared that the check was received as a deposit, like any other deposit, and that the plaintiffs did not intend, by receiving it, to satisfy or discharge the defendants’ obligation under the contract.</p> <p>Where a person, since the passage of the legal tender act, promises, for any valid consideration to return gold or silver, instead of the national currency, he is bound to return those specific things, precisely as he would be bound to return a specific quantity and quality of cotton, if he had, for a valid consideration, promised to do so. Per Clerke, J.</p>

<p>APPEAL by the defendant from an order made at a special term, granting a new trial. The facts appear in the opinion of the Court.</p>

The material facts are stated in the opinions. When the plaintiff rested, and again, at the close of the case, the defendants’ counsel moved to dismiss the complaint upon the grounds : “ That the plaintiff has failed to prove a cause of action. That no negligence on the part of the defendants or any of their agents or servants has been shown. That the evidence shows that the boy by his own negligence contributed to the injury.

<p>THIS action was brought by George H. Benton, as trustee for the benefit of the creditors of- Andrew Campbell, against John Kelly, sheriff of the county of New York, to recover éight thousand dollars damages, being the value of certain machinery, tools, &c. wrongfully levied upon and sold by the defendant under an execution against the property of said Campbell, in favor of the Elizabethport Manufacturing Company. Andrew Campbell was a maker of ¡minting presses, at the corner of Pearl and Elm street, New York, and there owned stock, machinery, tools, fixtures, &c. &c. necessary for such business. In 1859 he became much embarrassed, and John J. Merritt loaned and advanced him in cash, $20,000, or thereabouts. To secure these advances, Campbell executed to Merritt a chattel mortgage for $18,896, payable on demand, on his said machinery, tools, and office furniture, being a portion of his property at the corner of Pearl and Elm streets. This mortgage was dated and acknowledged April 4th, 1860, and filed April 5th, 1860, in the register’s office, King’s county ; Campbell then residing at Brooklyn. On the 4th May, 1860, Merritt demanded payment of the money secured by the mortgage. Campbell did not pay; whereupon Merritt at once took possession of the mortgaged property under the mortgage, and kept possession, and, under an agreement between him (Merritt) and Campbell, dated 5th May, 1860, carried on the business in his (Merritt’s) name until the 24th May, 1860, when he (Merritt) delivered the said property to the plaintiff, (Benton,) who took and retained exclusive possession until divested by the defendant. On the 24th May, 1860, Merritt, Campbell, and the plaintiff, (Benton,) made articles of agreement tripartite, whereby Merritt and Campbell conveyed their interest in certain other property they had at the corner of Pearl and Elm streets to the plaintiff in trust, upon certain terms and conditions therein named, subject to the liens by way of mortgage, held by Merritt. This agreement also contained full directions as to the management and disposition of the property in question in this suit, (viz. the machinery, tools, office furniture, &c. in daily use in the business,) and for the disposition of the proceeds of the same, this property having been delivered as aforesaid by the owner, Merritt, to the plaintiff the same day, 24th May, 1860. The trusts of this deed were as follows : To take possession, subject to the mortgage liens, collect the moneys owing and choses in action, and apply them, in the trustee’s discretion, to finish up work in process of manufacture, and to continue and carry on the business for a period not to exceed eighteen months, underlet room and power, employ workmen, furnish materials, sell oh 'Credit or otherwise, and apply the property which was not subject to mortgage in continuing and carrying on the business, and to the payment of debts in a certain order, and from time to time divide among the creditors in the ratio of two thirds to Merritt and one third to all the.other creditors, until the indebtedness was fully paid, allowing for this a period of eighteen months. Then follows a proviso, that at the end, or earlier closing of the business, he should' dispose of the property at public or private sale, on credit, or otherwise, and make dividends among such of the creditors as shall not have been paid. Certain collaterals which Merritt held for his indebtedness are mentioned in schedule D. which he was to retain and apply to his indebtedness as realized ; the dividends to be made by the trustee to Merritt on the full amount of his indebtedness without any other deduction than such sum as he should at the time of the dividend have received from the collaterals. Next follows a provision that the trustee should employ Campbell, during the trust, at a salary of $2000 per annum, and all expenses were to be paid by the trustee, including Campbell’s bills to the lawyers. Merritt and Campbell could require the trust to be closed before the expiration of the eighteen months, when Campbell could be allowed to resume the business in his own name and on his own account and behalf, with the property then remaining in the hands of the trustee, on terms to be agreed upon between them, having in view the interest of Campbell’s creditors, when the trust should cease. All the creditors of Campbell who should consent to take a dividend under the trust should be deemed to accept the provisions of the agreement in full of their claims, and release Campbell therefrom, and any creditor who should not signify in writing his assent to the agreement, should, at the option of the parties to it, be excluded from its benefits. After the trust was fulfilled, the property remaining was to be reassigned and returned to Campbell.</p> <p>Benton, the plaintiff, having taken possession of the property under this trust, Campbell continued to work as provided in the agreement, and continued in possession of it subject to' the lien of Merritt's mortgage, (which remained unimpaired, and could be enforced at any time he saw fit to enforce his lien,) and proceeded to use the property in conjunction with Campbell.</p> <p>On the 3d September, 1861, the defendant levied upon and subsequently sold the property in question in this suit, under an execution upon a judgment for $2,328.27, in the suit of theElizabethport Manufacturing Company against said Campbell ; whereupon this suit was brought.</p> <p>. At the close of the case, the defendant’s counsel moved to dismiss the complaint, on the ground that Mr. Benton, the plaintiff, as against the sheriff, had no title to this property.</p> <p>The court held that the plaintiff had not shown any title to the property in question ; that no such delivery of the property to the plaintiff by Mr. Merritt as was necessary to pass the title had been shown ; that the deed of 24th of May, 1860, did not convey to the plaintiff any interest in or title . to the property; that the evidence established that on the 24th of May, 1860, the title to the property covered by the mortgage had become absolute in Merritt, the mortgagee, who was then in possession thereof, but that no transfer or delivery of the. property, or of the possession of the same from Merritt to the plaintiff, had. been proven ; that the assign*ment under which the plaintiff claimed title to the property was void, as against the sheriff, acting under his process.</p> <p>The motion was granted by the court, and the plaintiff’s counsel excepted.</p> <p>From the judgment of dismissal the plaintiff appealed.</p>

THIS was an action upon a note dated February 20,1865, made hy the defendant, payable to Henry Church, or order, three months after date, for $300, and indorsed hy Church, and delivered to the plaintiff. The defendant in his answer does not deny the note, but avers that the note was an accommodation note, loaned to Church.

APPEAL by the defendant from a judgment entered on the verdict of a jury. The action was brought against the defendant, as sheriff, for the conversion of property. Prior to February 1, 1860, one Samuel Baldwin, who had long carried on the business of jewelry, &c. in the city of New York, had owned the property in question. On that day he sold out the stock to his son, W. S. Baldwin, and his clerk, H. G-.

<p>A covenant, on the part of the lessees, in a lease, “ to keep the buildings and fences in good repair, except natural wear and tear,” binds them to rebuild in case of accidental destruction by fire or otherwise.</p> <p>Where a lease contained seven distinct independent covenants, the third of which was to keep the buildings and fences in repair, and the seventh, to build, during the continuance of the lease, 125 rods of fence; Held, that a former action by the lessor, upon th'e last covenant, for not building the fence, was not a bar to an action subsequently brought upon the covenantto repair; the two covenants being distinct, and having no connection with each other, except that they were contained in, ,and evidenced by, the same instrument.</p> <p>The former action must have been to recover for the same identical cause of action, or for some part thereof, as the plaintiff seeks to recover in the second, in order to be a bar-.</p> <p>The rule upon this subject, laid down in Phillips v. Berick, (16 John. 140,) approved.</p>

THIS is an action to recover damages, arising from a personal injury, which resulted in the death of Andrew J. Warner, the plaintiff’s intestate, one of the defendants’ employees. The deceased was a baggageman, and, when killed, was in the discharge of his duty, as such, on a train of cars going from Hornellsville east, on the defendants’ railroad. One of the defendants’ bridges, over the Conhocton river, fell as the train of cars was passing over it.

<p>In case of a village Or city, where the trustees, or common council, are made commissioners of highways, the corporation is liable for their negligence in not repairing the highways within the corporate limits.</p> <p>Where a street in a city was in'an unsafe condition, so that a person knowing its condition would have been guilty of negligence in attempting to use it by driving through it, but the danger was concealed by a snow that had recently fallen; it was held that a traveler was not bound to know that water crossing the street had congealed into ice, which was covered by the snow; and he was not, therefore, chargeable with negligence in attempting to pass along the street, with his horse and buggy.</p> <p>And the referee having found that the plaintiff had sustained damages by a fall, caused by the dangerous condition of the street, and the negligence of the city in not putting and keeping the street in proper repair, and that he was free from negligence or fault; a judgment in favor of the plaintiff, against the city, was affirmed.</p>

The action was brought to recover damages for a personal injury sustained by the plaintiff, as claimed, by being run against .and knocked down by the defendants’ locomotive, through the negligence of the defendants’ servants, while the plaintiff was crossing the railroad track, in the city of Buffalo.

THE plaintiffs, in this action, are manufacturers of cement, or water lime, at the village of Akron, in the county of Erie. And the defendants are engaged in the same business at Syracuse, in the state of New York. Two of the plaintiffs have carried on the business at Akron, for about thirteen years preceding the trial of this action, and they, together with the other two plaintiffs, have carried on the same business for three years preceding such trial.

THE complaint in this case alleged that on the 22d day of December, 1858, the defendants were copartners together, doing business at West Troy, in the state of New York.

APPEAL by the defendant, from a judgment entered upon the report of a referee. • The action was brought by the plaintiffs against the defendant and Samuel E. Bear, as copartners in business, to recover of them damages for their breach of a contract to buy of the plaintiffs a quantity of barley? It was begun by the publication of summons and by attachment, the defendants being non-residents of this state, • and the defendants appeared in the action by attorney.

One Eichard Dey, for many years prior to October 1,1845, owned a farm in the town of Fayette, Seneca county, upon which was a “ cemetery ” entirely surrounded by his land. In this “ cemetery” his relatives, friends and neighbors had been accustomed to bury their dead for over forty years before this suit was commenced. On the 1st day of October, 1845, the said Eichard Dey, conveyed said farm to James E. Dey and Jacob 0. Dey, in trust for certain purposes.

THE plaintiffs’ testator, Allen Ayrault, deceased, was the owner of a certain farm, in the county of Livingston, and the defendant is in occupation of another, owned hy one Moss, who holds the fee thereof, subject to the right of the testator, to convey water from said farm occupied by the defendant.