Volume 49 — New York Reports

The action was brought for the specific performance of a contract alleged to have been executed March 26th, 1859, between William W. Young and defendant, and assigned by Young to plaintiff', March 29th, 1872. The court found, substantially, the following facts. That the defendant and Young purchased, in the year 1855, on joint account,, the property and premises described in the complaint.

<p>By the late civil war all commercial partnerships between citizens of the northern and of the southern or Confederate States were dissolved. A citizen, therefore, of the State of Hew York, a former member of such a partnership, doing business in Hew Orleans, is not liable upon a note indorsed- in the firm name after the commencement of the war. In an action upon a note thus indorsed, the fact that in a power of attorney, given to an agent of the film, executed by such citizen, he is described as of Hew Orleans, does not estop him from alleging a residence in Hew York, in the absence of proof that the party discounting the note had seen the power of attorney or believed he resided in Hew Orleans.</p>

The action is brought to recover twenty shares of the stock of the Bank of Commerce of the city of Hew York, or its value, claimed by plaintiff as a gift mortis causa by Federal Vanderburgh, defendant’s testator. The facts sufficiently appear in the opinion.

(Reported below, 2 Lansing, 35.) The action was to recover possession of a quantity of oats raised by plaintiff upon land of Charles W. Frink, for whom defendants were agents, of which land plaintiff had possession under a parol agreement to purchase. Plaintiff was non-suited upon the opening of his counsel to the jury. The allegations in the opening are set forth in the opinion. Exceptions were ordered to be heard at first instance at General Term.

<p>A transcript of the docket in the office of a county clerk of a judgment purporting to have been rendered by a justice of the peaee, with a certified copy of the transcript of the justice, are prima, facie evidence of the judgment, but not conclusive. It is competent to prove by the testimony and docket of the justice that no such judgment has in fact been rendered.</p> <p>In an action tried in justices’ court by a jury, after the rendition of the verdict and entry thereof in the docket of the justice, the only remaining judicial duty for him to perform is to determine the amount of costs to which the prevailing party is entitled, and add the same to the verdict; the law makes a judgment for this amount the only one that can be entered by him. (2 R. S., 247, § 124.) An entry of judgment for the party prevailing, preceding the statement of the amount, is in no respect the exercise of judicial power, but the performance of a mere ministerial act. An omission, therefore, to make such an entry will not render the entire proceedings a nullity. It may be made by the justice at any time, and will for the purpose of sustaining the proceedings be regarded as made.</p> <p>One D. made a verbal contract with defendant to cut upon lands in D.’s possession, manufacture and deliver upon the side of the railroad track, 1,000 railroad ties at twelve cents each, to be paid for as the work progressed, the same to be defendant’s as soon as cut from the stump; but the ties were to be inspected, and defendant was to take only such as were merchantable and suitable for the intended purpose. D. cut timber sufficient for about 800 ties and drew it upon the lands of O. It was not cut up into ties. Defendant paid upon the contract about the contract-price for 800 ties. After the timber was drawn out, D. pointed it out to defendant, saying “ here are your ties.” Defendant replied that he wanted them inspected. Subsequently the timber was levied upon and sold upon an execution against D. Held, that the defendant had acquired no title to the timber either under the original contract, as something remained to be done to identify the property embraced in it («. 6., the inspection) or by the subsequent transaction, as defendant did not then accept, but required an inspection; the title, therefore, remained in D„ and passed by the levy and sale. The cases of Van Hoozer v. Cory (34 Barb., 10), and Conderman v. Smith (41 Barb., 404), distinguished.</p>

The action is brought for damages to plaintiff in consequence of injuries sustained by his wife, Mrs. Helen M. Filer, while a passenger of defendant, at Fort Plain, on the night of the 4th of November, 1864. Mrs. Filer left Rochester for Fort Plain on the evening of the 4th of November, on a train which was to arrive at Fort Plain between three and four o’clock the following morning. As the cars approached the station, they moved very slow, but did not stop.

<p>The question of negligence is, ordinarily, one of mixed law and fact, and it is the duty of the court to submit the same to the jury with proper instructions as to the law. What is proper care is sometimes a question of law where there is no controversy about the facts. If, in an action to recover for injuries, the alleged result of defendant’s negligence, the question arises as to whether plaintiff, by his own fault, has contributed to the injury complained of, and the evidence is of such a character that a verdict for the plaintiff would be clearly against Jibé evidence, the question is one of law, and should be decided by the ccf&^t.' The question of concurrent negligence is to be determined, however, by the particular circumstances of the case.</p> <p>Where a passenger upon a railroad, by the wrongful act of the company, is put to an election between leaving the cars while they are moving slowly, or submitting to the inconvenience of being carried by the station where he desires to stop, the company is liable for the consequences ■ of the choice, provided it is not exercised wantonly or unreasonably. It is a proper question for a jury, whether the adoption of the former alternative is ordinary care and prudence, or a rash and reckless exposure to peril. Under such circumstances, where the decision is required to be made upon the instant, the passenger will not be held to the most rigid accountability for the highest degree of caution.</p> <p>Plaintiff, a passenger upon defendant’s road, had bought a ticket and desired to stop at Fort Plain, where the train was advertised to stop. It did not stop entirely, and, while it was moving very slowly by, plaintiff was directed by a brakeman to get off, and told that it would not stop or move more slowly. Another passenger got off safely; in attempting to follow him plaintiff was thrown down and injured. Held, that leaving the cars under such circumstances was not, as matter of law, negligence, but the question was a proper one for the jury.</p> <p>In an action brought by a married woman to recover damages for personal injuries caused by the wrongful act of another, unless she is carrying on a trade or business, or performing labor or services on her sole and separate account, she is not entitled to recover consequential damages resulting from her inability to labor. Her services and earnings belong to her husband, and for loss of such service he may have an action. This right is not affected by the act of 1862 (chap. 172, Laws of 1862), amending the act concerning the rights and liabilities of husband and wife. (Chap.' 90, Laws of 1860.)</p>

This action was brought to recover for an alleged conversion of warehouse receipts for 70,856 bushels of corn which were pledged by Simeon S. Losee as security for advances made by defendant. Plaintiff claimed that the agreement under which the advances were made was usurious. The action was originally commenced by Losee; subsequently he assigned to the present plaintiff all his right and interest in the claims in suit, and the latter was substituted as plaintiff.

The plaintiffs, who were tenants in common, each owning an undivided half of a grist-mill on the Schenevus creek, brought this action to recover damages for the overflowing of their lands and injury to their water-power by a dam erected by Amos H. Brown and continued by the defendant at his tannery on the stream below them.

<p>If A. has property upon which he has received advances from B., under an agreement that he will ship it to B. to be sold to pay the advances, or to pay any indebtedness; he may or may not comply with this contract. He may ship to 0. or to B. upon conditions, but if he ships to B. in pursuance of his contract the title vests in B. upon the shipment. The highest evidence that he has so shipped is the consignment and unconditional delivery to B. of the bill of lading ; but if A. retains the bill of lading, and notifies B. by letter that he has shipped the property for him in pursuance of the agreement, or if in any other manner the intent thus to ship is evinced, the title passes as effectually, as between them, as if the bill of lading had been delivered.</p> <p>Where, therefore, goods are so shipped, and the carrier receipts for the same, and agrees to transport safely and deliver to B., the former is chargeable with knowledge of the rights of the latter, and if by the subsequent direction of A. he delivers the goods to another person, he is liable to B. for a conversion thereof.</p>

<p>Appeal from order of the General Term of the Supreme Court in the second judicial department, affirming an order striking out the amended complaint.</p> <p>The original complaint was to compel the determination of conflicting claims to real property. Within the time prescribed by section 172- of the Code, plaintiff served an amended complaint which set forth a cause of action in ejectment. This was stricken out on motion, upon the ground that the cause of action embraced therein was a new and different one from that set forth in the original.</p> <p>The amendment was proper under section 172. (Beardsley v. Stover, 7 How., 294; T. and B. R. R. Co. v. Tibbets, 11 id., 168 ; Bedford v. Terhune, 30 N. Y., 454; Robinson v. Wheeler, 25 id., 232; Byxton v. Wood, 24 id., 607; 37 Barb., 270; Code R., N. S., 388 ; 1 Abb., 185 ; 13 How., 466.)</p> <p>A plaintiff cannot amend a complaint by substituting a new and different cause of action. (Hollister v. Livingston, 9 How. Pr., 140; Dows v. Green, 3 id., 377; Woodruff v. Dickie, 5 Robertson’s R., 619; Field v. Morse, 8 How. Pr., 47; McGrath v. Van Wyck, 2 Sandf., 651; Nosser v. Corwin, 36 How. Pr., 540.) What the court would not allow, cannot be done as of course. (Spaulding v. Spaulding, 3 How., 300.)</p>

The action was brought for absolute divorce. The defence was, no marriage. The action was referred to a referee to hear and to report the facts, with his opinion thereon. The referee made a report, with Ms opinion, in favor of the plaintiff, and thereupon the plaintiff made a motion that the court fix temporary alimony, and order the defendant to pay the plaintiff’s attor. ney the sum of §250 for referee’s fees, which motion was granted.

The action was brought to foreclose a mortgage of lands in Brooklyn, H. T. Defendant, Sarah Ann Bulmer, is a nonresident, residing in Hew Jersey. October 2, 1871, an order was made, directing service of the summons on said defendant by publication six weeks, and mailing copy summons and complaint. October 4, 1871, summons and complaint were served personally on said defendant in Hew Jersey. October 26, 1871, judgment, on failure to answer, was entered.

The substance of the indictment and the facts proved are set forth in the prevailing opinion. The questions as to the admission of evidence, discussed in the dissenting opinion, not having been passed upon by the court, are omitted. The procuring or the attempt to procure miscarriage of a child not quick is not a crime.

(Eeported below, 2 Lans. 106,) The action was brought for the foreclosure of two mortgages, originally in the name of James M. Cook; upon his death, the present plaintiff, his executor, was substituted. In May, 1866, Charles Gf. Kenyon, John P. Shumway, Peter Mumford and John S. Kenyon, residing at Baldwins-ville, Onondaga County, K. T., engaged, by parol, to enter into the business of manufacturing paper, under the firm name of “ C. Gf.

The action was brought upon a bond of which the following is a copy: “ Know all men by these presents that we, Charles Barker and Samuel P. Barker, of the city of Brooklyn, are held and firmly bound unto John J. Cocks of said city in the sum of $5,000, for which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals.

The action is brought to recover dower in premises situate in Queens county. Patrick Malloney (the husband of the plaintiff) being the owner of the premises on the 11th of November, 1864, executed a conveyance of them to his brother, Michael Malloney. The appellant united in this conveyance and released her dower. Michael Malloney, on the 28th of December, 1864, conveyed the premises to the appellant. Both conveyances were recorded in Queens county.

(Reported below, 2 Lans., 176.) Action to recover against defendants as common carriers for damage to a cargo of merchandise on board of defendant’s boat. The facts as to the contract between the parties are set forth in the opinion. The boat sank, and the injury happened by reason of a break in the canal at Whitesboro’. Defendant Campbell did not know of the contract.

<p>Under section 121 of the Code an action does not abate, although the sole plaintiff or defendant die, and there be no verdict or judgment, provided the cause of action survive in favor of or against the representatives of the deceased party. This section, however, was not intended to change the former practice, which confined the right of continuing the action to the complainant or his representatives, unless the defendant had acquired some rights in the litigation; where a counter-claim has been interposed and issue joined thereon and referred to a referee for trial, the defendant has acquired such an interest in prosecuting the action as entitles him or his representatives to have it continued, and this relief can be obtained upon motion in the action.</p>

the General Term of the Supreme Court in the first judicial department, affirming a judgment of the Court of Special Sessions in the city of Hew York, convicting the plaintiff in error of the crime of petit larceny.

Ebbob to the General Term of the Supreme Court in the third judicial department, to review judgment of that court, reversing a judgment of the Court of Oyer and Terminer in and for the county of Ulster, entered upon a conviction of defendant in error, of the crime of manslaughter in the second degree, and granting a new trial. The facts sufficiently appear in the opinion.

Appeal, by J. Watts De Peyster, from order of the General Term of the Supreme Court in the first judicial district, affirming order of Special Term, setting aside an order confirming the report of commissioners of estimate and assessment, in proceedings under chap. 890, Laws of 1869, and appointing new commissioners. The facts sufficiently appear in the opinion. (Reported below 42 How. Pr.

The action was brought to recover the amount of three promissory notes made by defendant, Shearman, and indorsed by defendant, Ballou, for the accommodation of Shearman. Ballou alone appeared in the action and pleaded the statute of limitations. Three payments of interest were made upon the note by Shearman within six years of the commencement of the action. He received a receipt stating, in substance, that plaintiff received the payment from Ballou by the hand of Shearman.

In March, 1867, and during the lifetime of the defendant, judgment was recovered in this action for $6,858.12. Ho execution was issued during defendant’s lifetime. After the death of defendant, one Hammond commenced an action against plaintiff, and caused a warrant of attachment to he issued against it as a foreign corporation. Under this attachment the judgment was levied upon and subsequently sold by the sheriff by order of the court.

(Reported below 2 Lans., 492.) The action was brought for the alleged wrongful conversion of ten barrels of spirits. Held: that a settlement having been made for a portion of the goods subsequent to the commencement of this action, it could not be sustained, and directed a verdict for defendants, and plaintiff excepted.

(Reported helow, 57 Barb., 642.) The facts appear sufficiently in the opinion. Plaintiff was nonsuited, and exceptions were ordered to be heard at first instance at'General Term. Plaintiff’s attempt to get on the train while in motion was an act of negligence, which, in fact, contributed to the injury; and he, for this reason, was not entitled to recover.

<p>. Appeal from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of plaintiff entered upon a verdict.</p> <p>Benjamin F. Weymouth, on the first day of July, I860, became the secretary of the New York and Pennsylvania Petroleum Mining and Manufacturing Co., a corporation organized under the general law of the State of New York. For his services as secretary, on the 5th day of March, 1868, he recovered a judgment against the company for $3,765.79. On the 2d day of May, 1868, Weymouth assigned his judgment against the company to plaintiff, who brought this action to recover the amount of such judgment of the defendants, trustees of the company, as liable, by reason of the omission in January, 1868, to make, file and publish the annual report. Other facts appear in the opinion. '</p> <p>The release of Bates released all the defendants. (Rowley v. Stoddard, 7 Johns., 207; Bank of Poughkeepsie v. Ibbotson, 5 Hill, 461; Catskill Bank v. Messenger, 9 Cow., 37; Farmers’ Bank, etc., v. Blair, 44 Barb., 641.) The release is not brought within the provisions of chap. 257, Laws of 1838. (Bank of Poughkeepsie v. Ibbotson, 5 Hill, 461; Hoffman v. Dunlop, 1 Barb., 185.) The judgment was merely cumulative, as collateral security for the debt; its assignment did not deprive W eymouth of all interest and the release by him was effectual. (McHarg v. Eastman, 35 How., 208; 3 Keyes, 562; Bailey v. Bancker, 3 Hill, 188 ; Jackson v. Shaffer, 11 Johns., 513, 517; Ontario Bank v. Hallett, 8 Cow., 192; Andrews v. Smith, 9 Wend., 53; Baker v. Martin, 3 Barb., 641; Broome’s Leg. Max., 4th ed., 470; Day & Penfield v. Leal, 14 Johns., 404; Battle v. Coit, 26 N. Y., 406, 408; Shaler Quarry Co. v. Bliss, 27 id., 297; Garrison v. Howe, 17 id., 458; Andrews v. Murray, 83 Barb., 355.) The court erred in directing verdict for plaintiff. (The People, etc., v. Board of Police, 35 Barb., 651; Bridgeport City Bank v. Empire Co., 30 id., 421.) Weymouth was guilty of contributory negligence, and this would prevent recovery by his assignee. (Andrews v. Murray, 33 Barb., 354, 356 ; Milton v. Hudson River Steamboat Co., 37 N. Y., 210.) It was a question for the jury whether his excuse for not-preparing the report was sufficient. (Moore v. Westervelt, 21 N. Y., 103; Wooden v. Austin, 51 Barb., 8.)</p> <p>Parol evidence of the contents of the release was incompetent. (Rogers v. Van Hoesen, 12 J., 221.) The corporation can only be dissolved upon petition, or by judgment upon information of the attorney-general. (Iron Works v. Smith, 4 Duer, 362; Bradt v. Benedict, 17 N. Y., 93; Galvey v. U. S. Sugar Ref. Co., 36 Barb., 256.) The liability of defendants was fixed before Weymouth sued and was reincurred each year. (Miller v. White, 8 Abb. [N. S.], 46; S. C., 10 Abb. [N. S.], 385.)</p>

(Reported below 58 Barb., 575; 44 How. Pr. R., 176.) This action was brought to recover damages for an alleged failure of defendant to deliver a package of United States treasury notes received by it for transportation. Facts found by the referee: That the defendant, the American Express Company, is a joint-stock company, consisting of more than seven members, and is engaged in the express business as common carriers, whose principal office is in the city of Hew York.

The action was brought to recover the value of nine TJ. S. 7.30 bonds of $1,000 each. Defendants, as brokers, had purchased the bonds for plaintiff and they were left with them. Plaintiff gave defendants written instructions not to delivér the bonds to any person except upon his written order.

<p>a common carrier of animals is not an insurer against injuries resulting from their nature and propensities, and which could not be prevented by foresight, diligence and care. Where they are transported under a special agreement, the liability of the carrier is to be determined by the agreement. He is only liable for the performance of the duty undertaken thereby, or for some wrongful act either willful or negligent.</p> <p>Defendant received from plaintiff five car-loads of cattle, to be transported from Erie to Buffalo under a written agreement, by the terms of which plaintiff assumed all risks of injuries “ from delays, or in consequence of heat, suffocation, or the ill effects of being crowded upon the cars; ” the agreement provided that plaintiff should load and unload the cattle at his own risk, the defendant furnishing assistance as required; an agent of the owner was to ride free and to take the care and charge of the stock; the cattle were in charge of such agent. At Dunkirk the train was detained by a snow storm three days. The cattle could have been unloaded by constructing a platform; this, defendant declined to do and they remained in the cars twenty-four hours, in consequence of which, three of the cattle died and others were injured. Held, that under the contract the duty of defendant had respect simply to the transportation and not to the care of the cattle while in iransitu; that the provision for loading and unloading had reference to the terminus of the transportation and not to an intermediate station, and defendant was not required to unload at Dunkirk or furnish facilities for so doing; that the injury was attributable to the negligence of plaintiff’s agent, and defendant was not liable. (Peokham, J. dissenting.)</p>

(Reported below, 5 Lans., 545.) Action upon a policy of insurance issued by defendant for $2,000, upon the life of Jonathan C. Smith, father of plaintiff. The material facts are set forth in the opinion. If the order of Supreme Court was correct it should have been only on payment of costs; this should be corrected here.

Action to recover certain unpaid calls upon stock (subscribed for by defendant) of the Glenville Woolen Company, a corporation organized under the joint stock laws of the State of Connecticut. On the 26th May, 1854, defendant subscribed for 400 shares of the stock of said company. In pursuance of calls he paid in fifty per cent.

The action was brought against defendant as a common carrier, to recover the value of a portion of a car-load of paper which was burned at defendant’s freight station in the city of New York. The paper was shipped to plaintiffs from Fulton, N. Y. The car containing the paper arrived at defendant’s freight station in New York at 7 a. m., May 23d. The plaintiffs received notice of its arrival at 9.40 a. m. on the 24th of May.

The action was brought to restrain proceedings instituted under the statute by defendant, as guardian of Franklin W. Lowerre, an infant, to remove plaintiff from premises of the infant, and to compel defendant to ratify a lease claimed to have been executed by one Pearsall Wright, who assumed to act as guardian for said infant. A preliminary injunction was obtained, which was vacated on motion.

The action is brought to recover damages for the alleged arrest and imprisonment of the plaintiff by the defendant in the year 1864. The defence is that the acts complained of were done during the late rebellion and while the defendant was major-general in the army of the United States and in command of the department of the east, the defendant acting in his official capacity by virtue of his authority as a military commander and under orders from his superiors.

The action was brought against defendants for an alleged wrongful assessment. ( Reported below, 3 Lan s, 484; 59 Barb., 169.) During the year 1868 defendants were assessors of the town of Canton, St. Lawrence county, and made the assessment roll for that year. In Hay and June, and down to the 6th day of July, 1868, plaintiff resided in the town of Canton, on a farm, the greater portion of which was in the town of Canton.

The action was brought to recover for the non-delivery of $5,000 delivered to the Adams Express Company for transportation from Boston to Few Orleans.

Also affirming order denying motion for new trial. The action was brought to recover damages for injuries resulting from the alleged negligence of defendants’ servant. Defendants, at the time stated in the complaint, were copartners in the lumber business, having a lumber yard in Hew York, located on Thirteenth street, east of Avenue C, which was in charge of Walter S. Brown, as the foreman and agent of the defendants.

The action was for the recovery of personal property. The complaint alleged that defendant had become possessed of and wrongfully detained from plaintiff a piano of the value of $400, and demanded a return thereof, etc. The answer denied the possession of any property belonging to plaintiff, and denied the wrongful detention and plaintiff’s ownership of the piano.

This action was brought to recover damages for injuries alleged to have been sustained by the negligence of defendant’s servants.

The action was to compel the determination of claims to certain real estate situate in the city of New York.

(Reported below, 3 Lans., 86.) The action is brought against defendant as notary public for alleged neglect in presenting, demanding… Held: in substance, that the instrument delivered to defendant by the Metropolitan Bank was a foreign bill of exchange ; that it must have been personally presented and demanded by defendant and protested by him; that the acts of Turney, as notary, did not amount to a valid protest by him, and that Turney’s presentment and demand of the…

An order was entered by stipulation referring this action to Hon. Robert Earl to hear and determine. A motion was made on behalf of defendant to vacate the order upon the ground that the referee being a commissioner of appeals could not act, which motion was denied. In construing a constitution, the intent of the framers must he sought for, and when discovered is to prevail over the literal meaning of the words. (People ex rel.

Action to compel a transfer of thirteen shares of the stock of the Knickerbocker Stage Company of Hew York. The facts sufficiently appear in the opinion. As the reversal was not upon questions of fact, the court will not look behind the findings. (Morse v. Liverpool Ins. Co., 35 N. Y., 664; Baldwin v. Van Duzer, 38 id., 487.) The title to stock was not vested in Finch. (Thatcher v. Candee, 33 How., 145.) Every presumption is in support of judgment.

The action was brought by plaintiffs, as brokers, upon an account for advances and commissions. They had been engaged in purchasing and selling stocks and gold for defendant under an agreement that the latter was to keep ten per cent margin in their hands and plaintiffs to advance the remainder.

The action was brought to recover the value of certain clothing, jewelry, etc., constituting the baggage of plaintiff, accompanying him while traveling, with his wife, alleged by him to have been converted by defendant. On the 11th of March, 1862, plaintiff, in company with his wife, presented the baggage in question at the passenger depot of defendant in Philadelphia, and desired to have the same checked from thence to Chicago.

This action was brought to recover moneys attached, in the hands of defendant. The New York Condensed Milk Company commenced suit and caused an attachment to be issued against Sherman W. Scott et al., composing the firm of Malarcher '& Co., which was delivered to plaintiff for execution.

The action was brought for an alleged breach of contract in the sale of a quantity of sumac.

(Eeported below 58 Barb., 498.) The action was brought to compel the specific performance of a contract for the sale of three lots on One Hundred and Twenty-first street in the city of Hew York. Defendants were husband and wife; the property belonged to the wife. By the contract, plaintiff was to pay $1,180 on the 24th day of January, 1868, and was to assume a mortgage upon the premises for the balance of the purchase-money.

This was a proceeding under the mechanics’ lien law. Defendants made a contract with John Appley to furnish materials and do all the carpenter work for the erection of two houses in the town of Bethlehem, county of Albany, upon lands of defendants. Appley purchased all the materials from plaintiff, who commenced furnishing them on or about February 18th, 1869, and finished on the 28th April, 1869.

<p>Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, in favor of defendants, entered upon an order affirming an order of Special Term sustaining demurrers to plaintiff’s complaint, and directing judgment for costs.</p> <p>The complaint is very voluminous, but its main allegations are, in substance, that on the 3d of December, 1856, the firm of Yose, Livingston & Co, of which the plaintiff was a member, entered into a contract with the La Crosse and Milwaukie Railroad Company for the sale to it of 11,000 tons of railroad iron, to be paid for in first mortgage bonds at eighty cents on the dollar, which bonds were to be made and signed by the company. That it was well understood between the parties, that to enable Yose, Livingston & Co. to perform their contract, it would be necessary for them to dispose of the bonds as received, and that, to prevent loss to them by the depreciation of their market value, it was agreed that the issue of 1857 should not exceed $2,500,000; that if the company should sell any of such issue of $2,500,000 of such bonds to be made during the year 1857 at a less rate than eighty cents on the dollar, they should pay to the firm such an additional amount of bonds as should, at the lowest rate at which any of them should be sold, pay Yose, Livingston & Co. the contract price of the iron; that the bonds were issued, and, during the year 1857, over $700,000 of them were delivered to Yose, Livingston & Co., in payment for iron delivered by them under their contract, but that during the same year the company disposed of other portions of the issue of $2,500,000 to other parties at rates not exceeding forty cents on the dollar, without making any allowance to Yose, Livingston & Co., and also made further issues of bonds beyond the $2,500,000, and sold them at thirty cents on the dollar.</p> <p>The losses thereby sustained by the firm, and the failure of the company to make satisfaction therefor, are fully set forth.</p> <p>The bonds were secured by a mortgage of the road of the company to Greene C. Bronson, James T. Smith and Shepherd Knapp, as trustees, and provided for an issue of .$10,000,000 of bonds. The total amount actually issued was $4,000,000.</p> <p>The plaintiff claims that, by reason of the premises, his firm became entitled to an additional amount of bonds, and also to damages. It is further alleged that the iron sold by Yose, Livingston & Co. was used in the construction of the road of the company from Portage City to La Crosse; that the company became insolvent, and has ever since remained so, and failed to keep up its organization; that Bronson, Smith and Knapp, the trustees, foreclosed the mortgage in 1859, and a decree of sale was obtained in 1862, whereby it was adjudged that the bonds numbered from 1 to 1991, inclusive (embracing those which had been issued to Yose, Livingston & Co.), be paid in full, and that on the residue of the $4,000,000 there was then' due only the sum of $803,600, making the total amount due on the mortgage $2,794,600.</p> <p>The complaint then sets forth an agreement made in 1861, between the creditors, for reorganizing the company, by purchasing its property under the foreclosure then pending. The plaintiff was a party to this agreement, having previously purchased the interest of his copartners in the claim of his firm. This agreement provided for the purchase of the road by such creditors as should join in the agreement, and for the formation of a new company by the purchasers, and the issue of new bonds and stock, to replace the first mortgage bonds and other specified liabilities of the old company. Of the first mortgage bonds, only the $4,000,000 actually issued were provided for by this agreement. It made no provision for the floating or unliquidated debts of the company. The $4,000,000 of bonds provided for were specified by their numbers. Those from 1 to 1991 were to be replaced by first mortgage bonds of the new company at par; those of higher numbers were provided for at reduced rates, in bonds and stock of the new company to be formed.</p> <p>Trustees were appointed to purchase the road, at the foreclosure sale, for the benefit of the creditors who should unite in this agreement, to audit the claims of such creditors and issue certificates therefor; and, on surrender of such certificates, to deliver to each holder his quota of the bonds or stock of the new company to which he should be entitled.</p> <p>Bondholders of the La Crosse and Milwaukie Railroad Company, to an amount exceeding $3,800,000, became parties to this agreement.</p> <p>The road was sold under the foreclosure in 1863, and bought in on behalf of the trustees for these creditors, under the agreement, for $2,675,000.</p> <p>This sale was confirmed by the Circuit Court of the United States for the district of Wisconsin; being the court by which the foreclosure and sale were decreed.</p> <p>A new company was organized under the name of the Milwaukie and St. Paul Railroad Company; and the purchasers at the foreclosure sale conveyed the road and its property to that company in pursuance of the agreement.</p> <p>■ Various communications between the plaintiff and the trustees under the agreement, on the subject of the claim of the plaintiff (who represented Vose, Livingston & Co.) against the La Crosse and Milwaukie Railroad Company, are set forth in the complaint. But no liquidation or allowance of the claim was made by the trustees. The plaintiff claims that he is entitled, as a creditor of the old company, to follow its properties which have come to the hands of the Milwaukie and St. Paul Railroad Company; and also that, under the agreement of December 3, 1856, made between the old company and Vose, Livingston & Co., they became entitled to an additional amount of first mortgage bonds; that such bonds ought to be issued to the plaintiff by the trustees under the first mortgage of the old company; and that such additional bonds, so to be delivered to them, should be redeemed in stock and bonds of the new company, pursuant to the agree. ment of 1861, under which the Milwaukie and St. Paul Bail road Company was organized, and acquired the properties of the old company.</p> <p>The trustees under the first mortgage of the La Crosse and Milwaukie Bailroad Company, the trustees under the agreement of 1861 for reorganization, and the Milwaukie and St. Paul Bailroad Company are made parties defendants.</p> <p>All the rights of Vose, Livingston & Co. have become vested in the plaintiff by assignments from his copartners.</p> <p>It does not appear that any of the stockholders of the La Crosse and Milwaukie Bailroad Company united in the new organization, or received any of the property of the old company, or of the bonds or stock of the new company. Neither is any fraud or collusion in the foreclosure or purchase thereunder alleged.</p> <p>Defendants demurred to the complaint, that it did mot state facts sufficient to constitiite a cause of action; also for misjoinder of parties and causes of action.</p> <p>All the claims made against the defendants are connected with the trusts, and arise from it; and in such an action it is proper to unite everything connected with the trust. (Bailey v. Inglee, 2 Paige Chan. R., 278; Story’s Eq. Pl., §§ 285, 185 a, 286, 286 a ; Bank of America v. Pollock, 4th ed., V. Chan. R., 215; Brinkerhoff v. Brown, 6 Johns. Chan., 139; Fellows v. Fellows, 4 Cowen, 682; Boyd v. Boyd, 5 Paige, 65; Blackett v. Laimbeer, 1 Sandf. Chan., 366; Lawrence v. Bank of the Republic, 35 N. Y., 324; Shields v. Thomas, 18 How., 253; Fitch v. Creighton, 24 id., 159; Mitford’s Pl., 181; Gilchrist v. Stevenson, 9 Barb., 9; Willard’s Eq. Jur., §§ 471, 472 ; Richtmeyer v. Richtmeyer, 50 Barb., 35.) Different parties interested in an account, and persons having distinct interests in the same security, although not in the same right, are properly joined. (Barbour on Parties, 356, 461, and cases cited; Richtmeyer v. Richtmeyer, 50 Barb., 60, and cases cited; also cases above cited.) Equity regards the property of a corporation to be held in trust for the payment of its debts, and creditors can pursue it, unless it has passed into the hands of a bona fide purchaser, and equity will charge a fund derived from a sale of its property with a trust in favor of creditors. (R. R. Co. v. Howard, 7 Wal., 392; Story’s Eq. Jur., 9th ed., § 1252 ; Mumma v. Potomac Co., 8 Pet., 286; Wood v. Dummer, 3 Mason, 308; Vose v. Grant, 15 Mass., 522; Spear v. Grant, 16 id., 14; Curran v. Arkansas, 15 How., 307.)</p> <p>Plaintiff is estopped by the decree in the foreclosure suit from claiming the security of the mortgage for his equitable claim. (Bruen v. Hone, 2 Barb., 592; Harris v. Harris, 36 id., 94; Castle v. Noyes, 14 N. Y., 329 ; Dwight v. St. John, 25 id., 203.) The Milwaukie and St. Paul Bailroad Company is not chargeable with the obligations of its predecessor. (Velas v. M. R. R. Co., 17 Wis., 497.) It is a bona fide purchaser. (M. Co. v. St. P. Co., 6 Wal., 745.) Plaintiff cannot impeach the sale. (Croushay v. Soutter, 6 Wal., 640.)</p>

The action was for an injunction restraining defendant from trespassing upon an alley called Howard’s 'court, in the city of Brooklyn. The premises were originally owned by Joshua Sands, who laid it out into lots and laid out the alley. The alley ran west from Main street; all the lots along it were bounded thereon, it being referred to in the deeds as “ an alley.” The alley ended at defendant’s lot, which was bounded thereon.

Appeals from judgments of the General Term of the Supreme Oonrt in the fourth judicial department, affirming judgments in favor of defendants entered upon decisions of the court upon trials at the Circuit. These were actions of trespass for an alleged illegal levy and sale of plaintiff’s property.

(Reported below, 59 Barb., 401.) Defendants were duly appointed commissioners under the twenty-second section of the general railroad act (chap. 140, Laws of 1850), upon the petitions of George Hartman and William Hartman, alleging that the proposed route needlessly injured their lands.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of defendants entered upon the decision of the court upon trial without a jury.</p> <p>The action was to enforce specific performance of a contract for the sale of land in the city of Hew York. It was brought by the vendee’s representatives against the vendor’s representatives. The contract was dated March 1, 1852. It provided for complete performance on both sides at the office of John F. Delaplaine, the vendor, on May 1, 1852, between the hours of ten a. at. and three p. m. He was to give “ a satisfactory title free of incumbrances.” The plaintiffs gaYe prima facie evidence that John E. Peters, the vendee, tendered complete performance on his part at the time and place specified, and that Mr. Delaplaine, then and there, failed to perform on his part.</p> <p>The action was commenced March 25, 1869. The contract was under seal. Mr. Delaplaine, the vendor, was a married man, and, at the time of refusing to perform, he assigned as a reason that his wife would not “sign the deed.” This lady died shortly after July 17, 1866, and the plaintiffs contended that their cause of action arose at that time.</p> <p>John F. Delaplaine, the vendor, died about June 3, 1854; John E. Peters, the vendee, died April 24, 1858.</p> <p>The contract price of the property agreed to be sold was $30,000. Its value had become enhanced to more than ten times that amount.</p> <p>The vendor, or his representatives, continued at all times in possession, and in receipt of the rents and profits, without recognizing any right in or claim of the vendee or his representatives. t.</p> <p>The court decided that the equitable remedy for specific performance, not having been sued for within ten years, was barred by the statute of limitations. The complaint was, therefore, dismissed, the plaintiffs excepting.</p> <p>This is an action on a sealed instrument, and is not barred by the statute until twenty years after the cause of action accrued. (Code of 1849, §§ 69, 73, 74, 90, 97, 120; 2 R. S., 291; Mayor, etc., v. Colgate, 12 N. Y., 140; Borst v. Corey, 15 id., 505; Balch v. Onion, 4 Cush., 559 ; Thayer v. Mann, 19 Pick., 535; Elkin v. Edwards, 8 Geo., 325; Heyer v. Pruyn, 7 Paige, 465.) The cause of action did not arise until after Mrs. Delaplaine’s death, as prior to that it could not have been maintained. (In the Matter of Hunter, 1 Ed. Ch., 6; Downs v. Collins, 6 Hare, 437; Mills v. Van Voorhis, 23 Barb., 125; Morss v. Elmendorf, 11 Paige, 277; Jones v. Gardner, 10 Johns., 267 ; Knowles v. McComly, 10 Paige, 342; 1 Sugd. Vend. & P., 330.)</p> <p>Ten years having elapsed after the alleged breach, the action was barred. (Bruce v. Tilson, 25 N. Y., 194; 30 Barb., 178; Peabody v. Roberts, 47 id., 103; 2 R. S., 301, §§ 51, 52; Roberts v. Sykes, 8 Abb., 350; 30 Barb., 178; Taylor v. Delancey, 2 Caine’s Cases, 151; Goodell v. Jackson, 20 John., 722; Howard v. Thompson, 21 Wend., 319 ; Douglass v. Howland, 24 Wend., 47; Theriah v. Hart, 2 Hill, 381.) The right of action accrued May 1, 1852. (Woodbury v. Luddy, 14 Allen, 2, 6, 7; Davis v. Parker, id., 98,104; Harsha v. Reid, 45 N. Y., 419.) Where such circumstances attend the case, and so long a period as seventeen years has elapsed without any steps being taken by vendor or vendee, no court of equity would enforce specific performance against either. (McWilliams v. Long, 32 Barb., 194; Bruce v. Tilson, 25 N. Y., 202, and authorities there cited; Olcott v. Wood, 4 Kern., 40; Story’s Eq. Jur., §§ 742, 776.)</p>

(Reported below, 3 Bans., 492.) The complaint alleges, in substance, that the plaintiff • indorsed the note of the defendants, Freeman & Son, for $6,000, for their accommodation, and to assist them in procuring a loan from defendant Belden; that he received, as security against loss or damage by reason of such indorsement, from Freeman & Son, an assignment of a lease and a chattel mortgage; that after being indorsed, said note was transferred to the defendant Belden on a…

The action was brought to recover damages, resulting to the plaintiffs from a collision on the Hudson river. On the 9th day of October, 1867, the plaintiffs’ barge “ L. P. Gardner,” was being towed by the steam-tug ■ “ Hew York,” on the Hudson river, from the city of Albany to the city of Hew York.

The action is brought to recover of the personal representatives of John La Farge, deceased, the amount of a joint promissory note executed by said La Farge and one L. E. Lahens. The facts sufficiently appear in the opinion. The action was barred by the statute of limitations. (Hallet v. Righton, 13 How.Pr.

■ The action was brought to recover a balance due upon a promissory note made by defendant.

The action was brought upon a promissory note; defence, a material alteration of the note. Defendant was applied to to become agent for “ George H. Palmer’s Bake and Tedder.” He consented, and it was agreed that he should sign a note for $200, with a contract in it that the note should be paid out of the profits of the machines when sold. A note was presented for $200 and interest, payable to George 1ST. Palmer, or bearer, one year from date.

The action was brought to recover possession of a horse. Defendants denied plaintiff’s title and claimed title in themselves. The facts are set forth in the opinion. As the order appealed from does not show that the judgment was reversed on questions of fact, the case presents nothing but questions of law.

Appeal by the Erie Railway Company from an order of the General Term of the Supreme Court in the eighth judicial district, reversing an order of the Special Term, entered on the report of a referee, made in a special proceeding.

(Reported below, 3 Lans., 453.) The action was brought to recover damages for injuries to plaintiff’s woodland, alleged to have been occasioned by-defendant’s negligence. Plaintiff was the owner of a farm in the town of Ellis-burgh, Jefferson county, upon which was about six acres of woodland, adjoining defendant’s road.

The action was brought to foreclose two mortgages by defendant Johnson to Richard F. Blydenburgh, upon certain real estate in the city of Brooklyn. The mortgages were assigned by Blydenburgh to Josiah Bowers, the original plaintiff. He having died, the said bonds and mortgages were assigned by his executor to the present plaintiff, who was thereupon substituted as plaintiff. The facts pertinent to the questions discussed appear sufficiently in the opinion.

<p>In order to constitute the crime of robbery in the first degree, as defined by the statute (2 Rev. Stat, 677, § 55), it is not necessary that the one from whose person or in whose presence the property is taken should be the actual owner thereof. As against the robber, he is the owner of all goods in his possession and custody, whereof he is robbed.</p>

This is an action to recover damages alleged to have been sustained by plaintiffs in consequence of defendant’s neglect to fulfill the obligations resting upon it as a common carrier. On the 15th day of October, 1866, the firm of T. 0.

The motion was granted. From this order defendants appealed to the General Term, where it was reversed. The appeals were heard together at General Term, which reversed so much of the first order as denied a stay of proceedings, reversed the other two orders, and vacated and set aside the judgment.

This action was brought under the “ act to prevent extortion by railroad companies” (chap. 185, Laws of 1857), for alleged taking of illegal fare by defendant. Plaintiff resided at Spuyten Duyvil and was a daily passenger on defendant’s road to and from New York. The distance was a fraction over ten miles. Plaintiff from May 10, 1865, to May 9, 1866, traveled over the road 526 times.

<p>' Appeal from judgment of the General Term of the Superior Court in the city of Buffalo, affirming a judgment in favor of plaintiff, entered upon a verdict.</p> <p>This action was instituted to recover a balance alleged to be due to the plaintiffs for plastering the defendant’s house. The work in question was done under a written contract, of which the following is a copy:</p> <p>“ Buffalo, 1ST. Y., January 18, 1869.</p> <p>“We hereby agree to do the plastering work of house now being built by George Bailey, on Main street, at the prices named below, viz.:</p> <p>“For one coat work, twenty-five cents per square yard.</p> <p>“For two coat work with hard finish, thirty-three cents per square yard.</p> <p>“ The prices to include all labor and cost of material, we paying said Bailey the invoice price for all laths purchased and supplied by him. All work to be done with the International Lime Company’s ’ lime; the laths to be securely nailed before plastering, and all work to be done in a good, workmanlike manner, and to the satisfaction of said Bailey.</p> <p>“ Plastering with hydraulic cement, forty-five cents per square yard, to be done in a good, workmanlike manner, and to the satisfaction of said Bailey.</p> <p>WALLS & LECK.”</p> <p>The plaintiffs claimed that in determining the number of square yards for which they are entitled to pay, under the agreement, the openings, including doors and windows, are to be measured as plastering. That in rooms plastered with two or three coat work, the part of the work behind the cornice and base-board is to be measured as though actually plastered with two or three coats, though the same was only plastered with one coat.</p> <p>This claim was based on the assumption that at the time the agreement was made it was the custom of plasterers in the city of Buffalo to measure and charge for openings; and for wall not plastered, where the same was covered by a cornice or base-board.</p> <p>The court allowed proof of such custom to be given on the trial under defendant’s objections. Defendant was called as a witness in his own behalf, and his counsel asked him this question: “ When you made the contract had you any knowledge of any custom in Buffalo of measuring openings in measuring plastering ? ” This was objected to and the court excluded, the testimony. The court charged that the contract was to be construed with reference to the custom of the place where made, that such custom must be reasonable and public, general and uniform, to which defendant excepted. The jury found a verdict for the full amount claimed by the plaintiffs.</p> <p>The work was done under a contract clear and unequivocal, which could not be varied by parol proof of a custom. (Gross v. Criss, 3 Grattan [Va.], 26; Sanford v. Rawlings, 43 Ill., 92; Cox v. Heisley, 19 Penn., 243; Barnard v. Kellogg, 10 Wallace, 383; Thompson v. Riggs, 4 id., 679 ; Markham v. Jaudon, 41 N. Y., 235; Simmons v. Law, 3 Keyes, 393; Spartale v. Bencke, 10 C. B., 222; Blacket v. The Royal Exchange Assurance Co., 2 Crompton & Jervis, 244; Lombard v. Case, 45 Barb., 95; Beirne v. Dord, 1 Seld., 155; Whitmore v. South Boston Iron Co., 2 Allen, 52; Barlow v. Lambert, 28 Alabama, 710; Oelricks v. Ford, 23 How. [S. C.], 49; Beals v. Terry, 1 Sand., 127; Thompson v. Ashton, 14 Johns., 317; Martin v. Maynard, 16 N. H., 165; Vail v. Adams, 1 Seld., 155; Dykers v. Allen, 7 Hill, 498; Wheeler v. Newbould, 16 N. Y., 393; Merchants’ Bank v. Woodruff, 6 Hill, 174; Mu. Safety Ins. Co. v. Home, 2 Coms., 235; Wescott v. Thompson, 18 N. Y., 363; Donnell v. Col. Ins. Co., 2 Sumner, 377; In re Reeside, 2 id., 567; 2 Barn. & A., 746 ; 7 J., 389; 6 Pick., 131; 1 Dal., 265; 3 Yeates, 318; 6 Bin., 417.) The custom is unreasonable, and courts have frequently refused to enforce such. (Thomas v. Graves, 1 Rep. Con. Ct., 310 ; Hinton v. Locke, 5 Hill., 437; Hill v. Portland, etc., R. R. Co., 55 Maine, 438; Dodd v. Furlow, 11 Allen, 426; Strong v. Grand Trunk R’y Co., 15 Mich., 206; Mussey v. Eagle Bank, 9 Met., 306; Stover v. Lessee, etc., 5 Binny, 416; Bolton v. Colder, 1 Watts, 360; Miller v. Pendleton, 8 Gray, 548; Yates v. Pyne, 6 Taunt, 445; Bowen v. Stoddart, 10 Met., 375; Jordon v. Meredith, 3 Yeates, 318; Cox v. Heisley, 19 Penn., 243.) Knowledge of the customs by the party sought to be charged must be shown, and the presumption of such knowledge may be rebutted. (Stevens v. Reeves, 9 Pick., 197; Kirchner v. Venus, 5 Jurist. [N. S.], 395; Berkshire Woolen Co. v. Proctor, 7 Cush., 429 ; Fisher v. Sargent, 10 id., 250; Wheeler v. Newbould, 5 Duer, 29; Caldwell v. Dawson, 4 Met. [Ky.], 121; Leonard v. People, 30 Ga., 61; Clayton v. Gregson, 5 Ad. & Ellis, 301.)</p> <p>The usage of plasterers in Buffalo was properly proven, and the contract is to be construed in reference to it. (2 Parsons on Con., 3d ed., 49; Sewall v. Gibbs, 1 Hall., 602; Bronson, J., in Hinton v. Locke, 5 Hill, 437; see also, opinion of Earl, C., in Bradley v. Wheeler, 34 N. Y. R., 495; Eaton v. Smith, 10 Pickering, 150; Avery v. Stewart, 2 Conn., 69; Stultz v. Dickey, 5 Binn., 287; Dalton v. Daniels, 2 Hilton, 472; Coit v. The Comm. Ins. Co., 7 Johns., 395; Astor v. The Union Ins. Co., 7 Cowen, 202; Spicer v. Hooper, 1 Q. B., 424; Chanrand v. Augerstein, Peake’s N. R. Cases, 43; Cochran v. Petburgh, 3 Esp., 121; Evans v. Pratt, 3 M. & Gr., 759; Smith v. Wilson, 3 B. & A., 728; Conner v. Robinson, 2 Hilt. [So. Car.], 354; Hinton v. Locke, 5 Hill., 437; Baker v. McKelvay, 2 N. J., 165; Soutier v. Kelleman, 18 Miss., 509.) Defendant was bound to know the custom of the trade with which he dealt. (Whitehouse v. Moore, 13 Abb. P. R., 142; Pollock v. Stables, 12 Q. B., 765; Parsons on Contract, 3d ed., vol. 2, p. 57; Clayton v. Gregson, 5 A. & El., 302; Hinton v. Locke, 5 Hill, 437.)</p>

The action was brought to recover possession of certain premises in the county of Kings. The facts are set forth in the opinion. Parties are hound to notice of judgments of courts of record. (Willard’s Eq. Jur., 251; 1 J. Ch., 577.) Recitals in a deed estop parties and privies. (Garner v. Jackson, 4 Pet. [U. S.], 83; Jackson v. Parkhurst, 9 Wend., 209.) Defendants, in order to claim under tax sale and city lease, must show valid and regular proceedings.

The action was brought for the specific performance of a contract. The substance of the contract and the facts are set forth in the opinion. The agreement was simply “ to sell,” and defendant was not hound to give a warranty deed, or one with covenant against incumbrances.

(Rep. below, 43 How. Pr.R., 317.) The action was brought to recover the value of a quantity of petroleum oil destroyed by fire while in possession of defendant as common carrier.

This action was brought to compel specific performance of a covenant in a lease, which plaintiff claimed entitled him to a renewal of the lease, and to restrain defendant from interfering with plaintiff’s possession. The lease was of certain premises in the town of Watervliet, Albany county, executed by Levinus A. Lansing, lessor, and Erastus S. Prosser, lessee, dated August 30th, 1853.

The action was brought by plaintiff against her husband to recover an alleged balance of moneys in his hands belonging to her separate estate and received by him as her agent. The defence was payment. Upon the trial defendant offered himself as a witness in his own behalf, and plaintiff’s counsel objected that he was incompetent. Objection overruled, and he was sworn and examined.

This action was brought to recover for injuries received by plaintiff while in defendant’s employ, through the alleged negligence of the latter. Plaintiff was a carpenter in the employ of defendant. The facts appear sufficiently in the opinion. A master is not liable to one servant for injuries occasioned by the negligence of another.

The action was for a false return. The defendant was, at the time of the occurrences alleged in the complaint, sheriff of the county of Albany. A judgment was rendered on the 27th February, 1867, in favor of the plaintiff, against John Murphy and Robert McDonald for $1,179.80.

The action was brought against defendant as a common carrier to recover for the loss of the contents of a trunk. On the 4th day of July, 1868, the wife of plaintiff was a passenger upon defendant’s road from the city of New York to Mount Vernon. She had with her a trunk containing, wearing apparel for herself and plaintiff, jewelry and other articles.

The action was brought to recover damages for the breach of a contract for the delivery of a quantity of brick. On the 19th day of August, 1867, by contract in writing, defendants agreed to furnish to plaintiff, delivered at the corner of Fifth avenue and Twelfth street, Brooklyn, within three months, 400,000 North river hard brick; price, delivered, $10.50 per M. Defendants delivered, under the contract, 213,500, and refused to deliver the balance.

<p>Appeal from order of the General Term of the Superior Court of the city of New York, reversing a judgment in favor of plaintiff, entered upon a verdict, and ordering a new trial.</p> <p>• This action was brought to recover for the loss of plaintiff’s steam-tug, May Queen, through the alleged negligence of defendant’s servant.</p> <p>Defendant owned the hark Antietam. In November, 1862, it being ashore at the Delaware breakwater, he telegraphed from Lewes, Delaware, to Metcalf & Duncan, New York, as follows:</p> <p>“ To Metcalf <& Dunca/n:</p> <p>“ Send me small tug-boat. * * * Make the best trade you can.</p> <p>“ W. A. FAENSWOBTH.”</p> <p>Duncan, one of the firm of Metcalf & Duncan, chartered plaintiff’s steam-tug May Queen at an agreed rate per hour, defendant to furnish coal, and to furnish or pay a pilot. Plaintiff found one Cutler, a coast pilot, and brought him to Duncan, who hired him. The vessel sailed on the 14th November. On the 17th, while Cutler was at the helm, the tug came in collision with the United States gunboat Wamsutta and the May Queen was sunk.</p> <p>As no motion was made for new trial on the merits, nothing was before the General Term" but the validity of the exceptions. (Code, § 265; Keyes v. Devlin, 3 E. D. Smith, 518 ; Benkard & Hutton v. Babcock, Ct. of App., decided January, 1870.) Defendant was responsible for the negligent acts of the pilot. (Story on Bailments, §§ 399, 400.)</p> <p>If any error was committed on trial, the order of General Term must be affirmed. Sanford v. Eighth Ave. R. R. Co., 23 N. Y., 343; Cook v. N. Y. C. R. R. Co., 3 Trans. App., 8; Macy v. Wheeler, 30 N. Y., 231; The People v. Lacoste, 27 id., 197.) Duncan had. no authority to bind defendant for the negligence of the pilot, or to hire one. (1 Par. on Con., 48; Dows v. Perrin, 16 N. Y., 330; Smith v. Tracy, 36 id., 86; Gibson v. Colt, 7 J., 393 ; Munn v. Com. Co., 15 id., 54; Davenport v. Buckland, Hill & D. Supplt., 75; Denning v. Smith, 3 Johns. Chanc., 332; Delafield v. The State of Illinois, 26 Wend., 527; Batty v. Carswell, 2 Johns., 48; Sandford v. Handy, 23 Wend., 268; The Fauquier, 11 Law R. [N. S.], p. 12; Hawtayne v. Browne, 7 M. & W., 595; The May Queen, 1 Newb., 472; The Schooner Freeman, 18 How. U. S. Sup. Ct., p. 182; Grant v. Norway, 2 Eng. L. and Eq., 337; Hubbersty v. Ward, 10 id., 551; Coleman v. Riches, 29 id., 323; McCready v. Woodhull, 34 Barb., 80; Beach v. Vandewater, 1 Sand., 276; Zachrisson v. Ahman, 2 id., 68; Wright v. The Central Railroad and Banking Co., 16 Geo., 38.) Plaintiff having found the pilot, cannot claim damages for his incompetency. (The Miletus, 5 Blatch., 335.)</p>

The action was brought by plaintiff, a real estate broker, to recover a commission for negotiating a sale of two blocks of land in the city of Hew York. The facts sufficiently appear in the opinion, To entitle a broker to recover commissions, he must show his authority to act, and that his agency was the procuring cause of the sale.

The action was for the conversion of fifty shares of the stock of the Eew York Central Railroad Company. Plaintiff owned and held the certificate for the stock. She executed a blank assignment and power of attorney to transfer indorsed thereon, and delivered the same to William 0. Porter to be used by him as a margin or security in stock transactions.

This action was brought to recover the amount of a judgment obtained against plaintiffs in the upper or superior Court of Appeals of the four free cities of Germany, in an action brought against them by the firm of J. C. Grundmun & Co., upon a contract made with that firm by plaintiffs, by which they agreed to accept and pay, as sureties for defendants, bills for the purchase price of a quantity of chickory, and chickory mixed with acorns, and which contract was broken by…

The action was brought to recover the value of twelve United States bonds of $1,000 each, deposited by plaintiff with defendant about May 12, 1865. The answer admitted the deposit, but alleged a return thereof to plaintiff. The facts pertinent to the questions decided sufficiently appear in the opinion. The deposition of the witness, Rewell, was improperly excluded.

<p>A motion to dismiss a complaint upon the ground that plaintiff has no cause of action should specify the defect, so that plaintiff may have an opportunity to supply it if in the evidence, or may move to amend the complaint. Where the defect is not specified and the motion is denied, an exception to the decision is not available, if any view of the evidence would sustain a cause of action, and not then unless it appears that the defect could pot be supplied.</p> <p>Where one sells promissory notes at less than their face, representing them to be business paper when in fact they are accommodation notes, and thus usurious and void in the hands of the vendee, the latter may rescind the contract and recover back the purchase-money although there be no fraud or warranty. It is no answer that the parties to the paper might waive the defence and pay them.</p>

The judgment of the Supreme Court appealed from was rendered upon the joint return of the respondents to two writs of certiorari, the one directed to Jesse P. Haines and two others, commissioners, etc., and the other to the board of supervisors. By an act of the legislature, passed in April, 1867, Haines and his two associates were appointed commissioners for draining certain low lands in Boyalton, Niagara county. (Sess.

Appeals from judgments of the General Term of the Supreme Court in the first judicial department, affirming judgments entered in favor of defendants upon the reports of a referee.

This action was brought to compel the specific performance of a contract made 10th of August, 1868, between plaintiff and defendant Dierkes, for the purchase and sale of a lot of land known as Ho. 25 Grand street, Hew York city, for the sum of $8,500. Dierkes refused to perform, upon the ground that the plaintiff had no power to convey. Prior to 1856 Eliza B. Holsman was the owner of the premises. In September of that year she married Bichard S. Howell.

<p>The right of set-off may be waived by the party entitled to it, and where he for a valuable consideration by an agreement deliberately made contracts to waive it, the agreement is binding, and he is estopped from thereafter asserting the right.</p> <p>G-. and Y., plaintiff’s assignors, were indebted to defendants, which debt they were unable to pay, they thereupon entered into an agreement with defendants by which the latter upon being secured against losses, agreed to make advances upon the purchase of produce by the former to the amount of its cost, which was to be consigned to them for sale on commission, they to have the usual commissions thereon, one-half of the net profits to be applied upon the debt, and the other half to be paid to the consignors; defendants expressly agreeing that they would retain but one-half, nor seek to set-off their debt against the other half. Under the agreement Gt. and Y. purchased and shipped to defendants a boat load of wheat which was sold at a profit. In an action to recover the one-half thereof defendants pleaded their debt as a set-off. Held, that the agreement was for a sufficient consideration, and that defendants were thereby estopped. (The cases bearing upon this question collated and discussed.)</p>

The action was brought to recover the amount of insurance paid by plaintiff upon a quantity of flour shipped at Milwaukie for Boston, and alleged to have been destroyed by fire at Ogdensburgh while in the possession of the defendants as common carriers. The flour was shipped upon one of the boats of the Northern Transportation Company, which company ran a line of propellers from Milwaukie to Ogdensburgh, where it connected with the Northern Central railroad for Boston.

The action was upon a promissory note made and executed by defendants, Daniel Ferguson, Benjamin C. Starbuck and Joseph Eussel, indorsed by the other defendants. The facts sufficiently appear in the opinion. The consent of Starbuck and Eussel to the delivery of the note did not bind Ferguson. (Blake v. Vanderhyden, 1 Paige, 385.) Plaintiff’s right to notes depended upon the performance of the conditions.

The first count of the complaint alleged in substance: That, on the 22d day of June, 1867, “ the Credit Foncier of America,” a corporation organized under the laws of the State of ¡Nebraska, and the owner and in possession of a hotel building situate in the city of Omaha, in said State, as party of the first part, and Edward Co'zzens and John M. Bettman as parties of the second part, made and executed a lease or indenture in writing, in and by which said corporation leased…

The action was brought to recover for the conversion of a quantity of tobacco, the warehouse receipts for which had been pledged with the defendant, by one Cornelius Oakley, as security for loans made to him by the defendant, which the complaint alleged to be usurious. The plaintiffs claimed the tobacco as purchasers from Oakley. The substance of the allegations of the complaint appears in the opinion.

The action was brought to recover an alleged balance in the hands of the defendant, the avails of the sale of certain stocks belonging to plaintiffs. A statement of facts was made as prescribed by subdivision 2, section 333 of the Code, in substance as follows: During the year 1867-8, the defendant, Cameron, was a shipping and commission merchant in blew York, having in his employ, as his principal and confidential clerk, one George B. Sampson.

Action for conversion of $500 in gold. The judgment below was for the value of the gold in currency at time of demand. Held: that the verdict should have been in gold dollars, not currency, on authority of Kellogg v. Sweeney (46 N. Y., 291).

This is an action of replevin brought by plaintiffs as assignees of Hosea Ball to recover a quantity of stock and farming utensils. The defendant justified as sheriff of West-Chester county, by virtue of certain judgments and executions against the assignor, claiming that the assignment was fraudulent and void as against creditors.

<p>Plaintiff agreed to manufacture and deliver to defendant two engravers’ stamping presses, and to warrant that they would do defendant’s work without breaking. The presses were manufactured and delivered under the contract, and were accepted and paid for by defendant. Subsequently they were broken while being used in defendant’s business.</p> <p>In an action to recover the purchase-price of other presses, defendant set up the breach of warranty as a counter-claim. Held, that the acceptance and retention of the presses by defendant did not bar him of the right to the counter-claim, and defendant was entitled to his damages, to wit, the difference in value between presses that would do defendant’s work and these broken ones.</p>

<p>A guardian will not be allowed an extra compensation for services, although noi strictly within the line of his duties; as where the guardian is an attorney and counselor-at-law, he cannot charge for professional services rendered in the affairs of his ward, but is restricted to the statutory allowance. Neither an order of a surrogate, before the services are rendered, directing the performance thereof, and fixing the extra compensation, nor an order ratifying and allowing it, will legalize the charge.</p> <p>Where annual rests in the accounts of an executor or other trustee are required by the special direction of a court, in order to charge the trustee with interest, or where required by a rule of court or by provision of statute, full commissions may be computed upon the amount, excluding re-investments of principal. H a guardian has made and filed his accounts annually, as required by statute (chap. 460, § 57, Laws of 1837), he may be allowed commissidns in full upon each account.</p>

Action to recover damages for injuries sustained by plaintiff while alighting from defendant’s car. The car started upon the usual signal from the conductor, while the plaintiff was in the act of alighting, and before she was entirely free, her feet having reached the ground, but her dress being caught, she was in consequence violently thrown down and received the injury complained of. A motion was made for a nonsuit, which was denied.