Volume 5 — Lansing's New York Reports

The defendant, was appointed county judge of Niagara county, November 17th, 1868, to fill a vacancy caused by the resignation of George D. Lamont, whose term of office would have expired December 31st, 1869. The defendant qualified and discharged the duties of the office. At the general election in November, 1869, the defendant was elected county judge for the term of four years. He took the oath of office and continued to discharge the duties of the office.

This was an appeal from that portion of the decree of the surrogate of Ontario county, rendered on a final accounting of the respondent as executor of the estate of David Wilson, deceased, which refused to charge the respondent with the sum of $3,000 and interest, which the appellant claimed to be due from him for money borrowed from the testator. The facts are stated in the opinion

This was a certiorari to the common council of the city of Rochester to review proceedings taken by it in reference to constructing a sewer in Savannah street in that city. It is provided in the charter of the city, in regard to public improvements of this character as follows, viz.: “ Section 164.

This was an appeal by the defendants, James Fisk and others, from a judgment entered upon the decision of Mr. Justice E. Daewin Smith, rendered after trial before the court at Special Term. A statement of the pleadings will be found in the report of the case at Special Term (1 Lans., 308), and the findings of fact also appear there in the opinion of Mr. Justice E. Dabwht Smith.

This was an appeal by the plaintiff from a judgment against him entered upon the report of a referee.

<p>By section 8 of title III of the charter of the village of Penn Van (Laws 1864, p. 601), its trustees have power to compel the owners or occupants of the adjacent lots, upon notice, to make the repairs to sidewalks within a time named, and, on default, to cause the repairs to be made, and the expense to be assessed upon, and collected from such owners or occupants. The trustees are also (§ 10, id.) made commissioners of highways, with the power of such commissioners in towns, and to repair streets and sidewalks. By a provision of title 5 of the charter (Laws 1864, 609, § 11), the trustees are to determine the sum to be raised for the year’s expense of highways, &c., sidewalks not being expressly specified, and “all other expenses in relation to streets and highways;” and it is afterward declared in the same title (Id., p. 610, § 13), that this fund shall not be “ applied or appropriated to any purpose whatever, except such as is specified in this title;” also (Id., § 15) that the trustees shall have power to cause sidewalks, &c., to he repaired, and to determine what portion of the expense shall be paid out of the highway fund, and what by persons benefited; and provision is made for enforcing payment by the latter. Held, that the trustees, without first having determined that part of the expense of repairing sidewalks should be paid from moneys raised for highway purposes, might not apply those moneys to such repairs.</p> <p>Held, further, that the duty of the trustees, under the charter, to make and repair sidewalks is not imperative in the first instance.</p> <p>An ordinance requiring the repairs, &c., and notice to the owner are admissions of a necessity for the work, and upon lapse of the time provided, after notice, on default of the owner, the duty to repair,' &c., becomes imperative on the trustees, and the village is liable for injuries happening from their neglect.</p> <p>It seems, an individual, if chargeable with liability for the injuries, is liable over to the corporation in case of a recovery against the latter.</p> <p>In an action to recover damages for injury on the ground of negligence of the defendant, no rule of pleading requires the plaintiff to allege his own freedom from negligence.</p>

On the 1st day of December, 1846, James W. Sawyer and Alfred Hubbell were owners in fee of the lands described in the complaint, situated in the city of Rochester. On that day they gave the defendant a bond for $7,000, payable in five years with interest semi-annually. And to secure the payment of that sum they, with their wives, gave defendant a mortgage on the said lands mentioned, which was duly recorded.

This was an appeal by the defendant from an order of the Special Term granting a new trial. The complaint was for conversion of the plaintiff’s property. The defence was that the defendant was sole trustee of the school district in which the property was taken, and that it was taken and sold for a tax levied against the plaintiff and others for school purposes, by a collector, pursuant to a warrant issued by the defendant to such collector.

This was an appeal by the defendant from a judgment entered upon the verdict of a jury after trial in the Onondaga County Court, and also from an order refusing a new trial in that court. The case came on appeal to the County Court from the court of a justice of the peace, where the defendant had a verdict for costs.

This was an appeal by the defendant from an order of the Cayuga County Court overruling a demurrer to the complaint. The action was commenced in the Cayuga County Court to recover damages for the conversion of a cow alleged to be the property of the plaintiff.

This was an action brought to recover, for loss of labor, by reason of injuries arising from an accident. The defendant, on the 2d September, 1869, was a duly incorporated insurance company, by and under the laws of the State of Connecticut. William D. French was its duly authorized agent at Auburn, in this State.

This was an appeal from a judgment for the appellant, entered upon the report of a referee. The action was in the nature of replevin to recover possession of certain personal property.

This was an appeal by the defendant from a judgment entered against him upon the report of a referee. The action was brought by the plaintiff as assignee of a judgment to recover money collected by the defendant upon two executions.

The complaint claimed damages for alleged assault and battery and false imprisonment of the plaintiff. The plaintiff was nonsuited upon his own evidence, the court holding that the arrest was authorized by law. The facts, as they appeared in evidence, are set forth in the opinion of the court.

This was a writ of certiorari to the county judge of Cayuga county, bringing up for review his proceedings upon application of certain tax-payers of the town of Ledyard in that county, for the purpose of bonding that town in aid ot the Cayuga Lake Railroad Company.

This was an appeal by the defendant from a judgment in favor of the plaintiff, upon trial by the court without a jury. The facts are stated in the opinion.

This case came before the court, upon a case made and exceptions ordered to be heard at General Term in the first instance. The action was brought to recover damages for false imprisonment. The defendant justified under an order of arrest granted, in an action pending in the Supreme Court, by a justice thereof.

<p>Section 15 of the new judiciary article (article 6) of the Constitution, in providing that the salaries of county judges “ shall be established by law,” confines the power of fixing such salaries to the legislature.</p> <p>And held, that the statute conferring power on boards of supervisors to establish such salaries is unconstitutional and void.</p> <p>Power to legislate as to the salary of county judges is not, within the meaning of section 17, article 3, of the Constitution, a power of local legislation.</p> <p>The meaning of the terms “ local legislation ” considered. The People v. O'Brien (38 H. Y., 193), and other cases upon this head considered. (Per Mtjllin, P. J.)</p> <p>The true criterion by which to determine whether an act is local or general, is to inquire whether under it the people of the State may be affected ; if not, it is local; if they can be, it is general. (Per Mtjllin, P. J.)</p> <p>If an agent of a town has on hand money which has been appropriated by proper authority to pay a sum not legally chargeable on the town, an action will lie or a mandamus will issue against such agent. (Per Mtjllin, P. J.)</p> <p>Otherwise where the agent has not received the money, and it is sought to compel him to apply to some other officer to pay it over to him, or where the act of appropriation has been annulled or rescinded.</p>

<p>In ascertaining whether a majority of the persons whose names are upon the tax-roll have consented to bonding a town for railroad purposes, on application under the statute (Laws 1869, chap. 907, p. 3808, etc.), joint owners of property are to be counted separately.</p> <p>A partnership is to be counted as one tax-payer, under the amendment of 1871 (chap. 935) to chap. 907 of 1869; it was otherwise under the law of 1869 before the amendment.</p> <p>Whether a partner has authority to bind the copartnership by signing the petition, or each partner must sign individually—Quere.</p> <p>A person assessed individually, and also as guardian or trustee, is to be counted but once.</p> <p>Assessments against persons as representing the estates of deceased persons, must be excluded from the count.</p> <p>One whose name appears on the roll and who has signed the petition, must be counted as a petitioner, although, after assessment of the tax and before signing the petition, he has parted with his interest, or, it seems, removed from the town.</p> <p>It seems the consent of the tax-payer is in the nature of the vote of an elector.</p> <p>Signatures to the petition, of tax-payers appearing on the proper roll, induced by payments in the nature of a bribe, are nevertheless valid.</p> <p>It is otherwise where the tax-payer has been induced to sign by misrepresentation as to the nature of the instrument signed, or as to the company to be benefited by the bond, and has had no opportunity to inform himself of the contents of the petition.</p> <p>But the signers must exercise due care and caution in this respect, as where the petitioner signed under the inducement of false representations, but had in his possession the means of information as to the truth, the consent was held valid.</p> <p>The petition must designate the railroad company in view, and it must be an existing incorporated company, and it seems a petition signed before incorporation of the company is void.</p> <p>Petitioners cannot withdraw their consent before presentation of the petition. PerMuLLiN.P. J., and see The People, <£c.,v. P«;7i(4Lans., 538).</p>

The defendant in this action appealed from the judgment of the County Court, which affirmed a judgment of a justice the peace rendered in favor of the plaintiff. The facts are stated in the opinion.

This was a motion by the plaintiff for a new trial, on a case with exceptions ordered to be heard in the first instance at General Term. The action was brought to recover nine equal undivided thirtieths of an hundred acres of land in Middlesex, Yates county.

This was a certiora/ri to the common council of the city of Rochester, brought to review proceedings taken by it with reference to the erection of a bridge over the Genesee river in that city, and payment of the expense thereof. The petitioners were owners of property assessed for the expenses of the bridge, and tax-payers in the city, and they petitioned for the writ on their own behalf, and that of all other similarly assessed tax-payers of the city.

This was an appeal by the defendant from a judgment tv dered against him at Special Term, after trial by the court. The action was brought to restrain the defendant from enforcing certain judgments against property which the plain tiff had purchased at foreclosure sale in Rochester. It appeared that on the 11th day of February, 1856, and prior thereto, Urbana 0. Edgarton owned in fee certain premises on Sophia street, in the city of Rochester.

' This was an appeal by the defendant from a judgment for the plaintiff, entered in favor of the latter upon the verdict of a jury. The plaintiff sued to recover for the conversion of a canal boat, and the defendant sought to justify under a judgment and execution out of the Marine Court of New York city.

This was an appeal from a judgment rendered on appeal in the Onondaga County Court in favor of the plaintiff.

The testator, John Robison, died on the 24th day of December, 1855. His will was admitted to probate March 25, 1856. The appellant, his widow, was appointed executrix. The validity of the “ second” clause of the will was in question upon this appeal. It read as follows: “ Second.

This is an appeal from a judgment of the County Court of Fulton county. ■ The action was commenced in a Justices’ Court in November, 1868, where the plaintiff complained “ that the defendants agreed with this plaintiff, in the year 1867, to build a school-house in school district No. 4, in the town of Bleecker, for the above named trustees, and plaintiff claims that he has built said school-house according to the agreement made with said trustees, &c., and that said trustees…

This was a proceeding by the plaintiff under the mechanics’ lien law, commenced by serving complaint and notice in June, 1869. The cause was referred and tried before a referee.

The action was brought in a justices’ court. The complaint alleged that, on or about the first day of March, 1866, the plaintiff was the owner of two cows, worth $200; that he hired the defendant to keep said cows for him at Preston for six shillings per week; that the defendant, on demand, refused to deliver said cows to plaintiff, “whereby the defendant became liable to pay plaintiff $200, the value of said cows, the plaintiff hereby expressly waiving said tort and…

The action was brought to set aside an assignment of a bond and mortgage as fraudulent,-and tried at Special Term in Saratoga county before Justice Bockes, without a jury, in January, 1871.

This ease came up upon a writ of error issued in behalf of the defendant to the Court of Oyer and Terminer of Schenectady comity. The indictment was for perjury, at a Court of Oyer and Terminer held in and for the county of Schenectady in November, A. D. 1870.

This action was brought to recover damages by reason of a breach of the covenant of warranty in a deed from defendant to plaintiff. The breach complained of was in this, that a private-right of way previously conveyed by defendant to one IsaacW. Allen, existed upon the premises and was used as such. The case was tried at a Circuit Court in Clinton county by the court without a jury.

This is an appeal from a judgment entered upon a nonsuit it the Saratoga May circuit, 1870, held by Mr. Justice James. The action was brought upon a policy of insurance issued by the defendant upon a paper mill. The execution of the policy and the loss were admitted by the insurer as well as proven on the trial. The point presented by the appeal is sufficiently stated in the opinion.

<p>Motion for new trial upon exceptions ordered to be heard in the first instance at General Term. The action was commenced in March, 1870. The facts appear in the opinion.</p>

Motion by plaintiff for new trial on exceptions ordered to be heard in the first instance at General Term. The action was brought to recover damages from the defendants, inspectors of election, for improperly refusing to receive the plaintiff’s vote. The court granted a nonsuit on motion of defendants. The facts appear in the opinion.

<p>Appeal from judgment rendered for plaintiff upon trial by the court without jury. The facts are stated in the opinion.</p>

<p>Evidence of the circumstances under which the contract was made, of the relations of the parties and of the usage of the trade, is admissible to show the meaning of the words “ his crop of flax,” in a contract for the sale of flax between dealers in that article, •</p> <p>Accordingly held that the amount of the current year’s production which the party contracting to deliver had on hand at the time of the making of the contract, by purchase as well as by production was, in view of extrinsic evidence intended by these words in such a contract.</p> <p>The rule which excludes evidence, of extrinsic circumstances in explanation of the terms of a written contract discussed and explained per Parker, J.</p>

<p>The fact that the whole capital provided for by articles of copartnership has been lost, is sufficient ground for a refusal by one of the partners to further continue the business, although the time limited by the articles for the continuation of the copartnership has not expired.</p> <p>In a suit brought to recover damages for the breach of a contract to continue a partnership, the court was requested to charge the j ury, that “ if they found that the defendant wrongfully dissolved and broke up the partnership, they were not confined, in estimating damages, to the rate of profits at the time of the dissolution, but might consider and give damages for profits that would probably have been made by the higher prices, and might consider the present and probable future rate during the balance of the partnership.” To which the court said: “ Yes, I think that is a sound proposition; it requires some care. You are not to guess about this matter. If you can rationally see through-this, that the profits would have been greater in the future, and are greater at the present time than at the time of the dissolution, and you believe that the present increased profits, if such there would be, are likely to continue and increase, and you can satisfy yourselves of this in your own minds, then you have a right to look through the remainder of the time of the part-, nership, making a very careful estimate in regal'd to what the profits might probably be.” Subsequently the defendant’s counsel requested the court to charge, “ that the profits which might have been made are too speculative, vague and contingent, depending upon the many circumstances of fluctuation in prices, bad debts, &c., to form a basis of damages.” The court responded: “I cannot charge that; you must judge for yourselves, applying those rules which I have enjoined, and that deliberation which the case requires.”</p> <p>Held, that the rule of damages established by the rulings was erroneous, being of too speculative and conjectural a character, and leaving the jury to make an estimate of the profits which would accrue during the stipulated term of partnership remaining, subsequent to the trial, from what, in their view, was probable on the subject, and without any data from which to make the estimate.</p>

<p>Appeal from, judgment entered in favor of defendant upon • the report of a referee. The facts appear in the opinion.</p>

<p>A general resolution of a corporation provided that certificates of its stock should be signed by its president and treasurer.</p> <p>Held, that the company was liable for money advanced to the treasurer, upon certificates of shares of stock of the company, signed in conformity with such resolutions, issued to the treasurer himself, although the shares were, in fact, spurious and fraudulently issued; it appearing that they were taken by the plaintiff in good faith.</p>

Appeal by defendant from a judgment rendered for the plaintiff upon the verdict of a jury. The facts are stated in the opinion.

The prisoner was tried upon an indictmént and convicted of murder in the first degree, at the Broome county Oyer and Terminer, and brought error to this court.

Exceptions ordered to be first heard at General Term. The action was brought to recover the sum of $540, and the interest thereon from the 24th day of November, 1865, and was tried at the Cortland County Circuit, before Mr. Justice Boardman and a jury in April, 1870.

The action was on two policies of insurance; one was upon a house and the other upon personal property. The land, upon which the building insured was erected, was held under a contract upon which a small payment had been made. J. H. Price, an agent of defendant, came to plaintiff and solicited and obtained the insurance. The blank for application used was one furnished by the defendant.

This action was brought by Miranda 1. Allen against O. C. Underwood, and H. W. Brown, the sheriff of Otsego county, for the purpose of obtaining a perpetual injunction restraining the defendants from interfering with her possession of certain land in Otsego county, and to prevent the execution of a writ of assistance in a judgment of foreclosure. The cause was tried before Hon. Wm.

<p>This action was brought to recover a store account. Two actions were consolidated, by order of the court. The suits were commenced in June and July, 1869, and answers served the same month. In September, 1869, the actions were referred to a referee, to try and decide. The referee, on the 27th of June, 1870, made his report, and judgment was entered June 30, 1870, for $1,848.58.</p> <p>The plaintiffs claimed that the defendants agreed with them ;o furnish goods to one O’Brien on the defendants’account; the account at the end of each month to be made out in items and certified by O’Brien, or an order given for its footings, and to be paid on the 15th of the following month. Plaintiffs were merchants at Guilford, Hew York, on the line of the Midland road, and defendants were builders of the road, and O’Brien had a sub-contract, and, having become largely indebted to plaintiffs, they refused to trust him further. It was claimed, also, that defendants then agreed to pay O’Brien’s orders and trade for supplies for the men in his employ, and for materials furnished for the work. The real contest .in this case was, whether any such agreement was made. Plaintiff Gilbert testified to the agreement and its terms. Sage denied it. The books of both parties'were kept as though the contract was as plaintiffs claimed. The accounts were rendered pur suant to it. One Brown swore that he heard defendant Williams tell of it, and Williams contradicted Brown. Defendants paid a portion of the account. The testimony was conflicting upon the material facts. The referee found in favor of the plaintiffs. The exceptions on the tidal and to the report are fully discussed in the opinion.</p> <p>Judgment was entered in favor of the plaintiffs, and the defendants appealed.</p>

This is an appeal from a judgment rendered on the verdict of a jury at the Schenectady Circuit, in May, 1870. The action was brought to recover the value of horses killed by the falling of a highway bridge over the Erie canal in Schenectady. The defendant entered into a contract with the people of the State to keep superintendent section Ho. 2 of the Erie canal in good repair, including the bridges thereon, for three years from March 1, 1869.

This is an appeal by Richard Deyo, the owner of the real estate described in the petition in this matter, from the appraisal and report of commissioners appointed by the court to ascertain, appraise and determine the compensation which ought justly to be made to the owners and parties interested-in real estate taken by the Rondout and Oswego Railroad Company.

Tub action was originally brought in a Justice’s Court, where a judgment was rendered in favor of the plaintiff. The defendant appealed to the County Court, and the cause was referred. The complaint was for wrongfully taking and carrying away certain goods, furniture, &c., of the plaintiff.

<p>In an action to recover for breach of warranty in the sale of a chattel,— Held, that the price for which the purchaser resold the chattel was inadmissible as evidence of value.</p> <p>An objection to such evidence, as immaterial and improper, is sufficient. No exception to a decision is necessary in a Justice’s Court; it >a enough that objection is made and overruled.</p>

The action was brought to recover the purchase price of a quantity of goods alleged to have been sold and delivered by the plaintiff to the defendant.

This is an appeal from a judgment against defendant, entered upon the report of a referee, for $500, and interest from the 31st day of August, 1864.

The action was brought in the Supreme Court to recover damages for a refusal to accept and pay for a quantity of hops. The action was tried at the Broome county circuit in January, 1871, before one of the justices of this court and a jury- It appeared upon the trial that the defendant, in October, 1868, purchased the crop of hops raised by the plaintiff that year, being about 3,600 pounds, at the price of eighteen cents per pound, to be paid on delivery.

This action was brought by the commissioner of highways of the town of Baldwin, in Chemung county, against the defendant, before a justice of the peace, for obstructing a highway. The defendant, upon plea of title, ousted the justice of jurisdiction. The plaintiff then brought the action in the Supreme Court.

This action is brought to recover $500, and the interest on $1,000 from February 28,1867, the balance remaining due on two promissory notes made by the defendants to the plaintiff, of the date aforesaid, of $500 each ; one payable in one year and the other in two years. There was paid on the first note, March 31, 1868, $200, and October 7,1868, $300. The case was tried at the Chemung circuit in October, 1870, before Justice Balcom: and a jury.

This was an appeal from a judgment for the defendant, rendered before a justice of the peace. The facts are stated in the opinion of the court.

The prisoner was indicted at the Ulster Oyer and Terminer for April, 1871, for an assault with intent to commit rape. The indictment was sent to the sessions and he was • tried upon said indictment and convicted of an assault and battery at the June term thereof. On the trial, the prisoner offered himself as a witness in his own behalf. It was admitted that he had served out a term in the State prison, having been sent there on a conviction for a felony.

<p>The action was originally brought by plaintiff in a Justice’s Court, to recover upon an agreement made by plaintiff with defendant for working his farm on shares, alleging in plaintiff’s complaint, among other things, that plaintiff appropriated and used more than his half and share of milk and butter, and omitted to pay his half of school tax.</p> <p>Plaintiff also claimed to recover for a large quantity of corn, oats and potatoes used by defendant, as well as for work done, beef sold, and money loaned.</p> <p>The defendant’s answer was a denial and set-off. The cause was tried by jury; verdict rendered in favor of the plaintiff for forty-five dollars, upon which the justice rendered judgment for that amount and costs, fifty dollars. The defendant appealed to the Montgomery County Court, where the judgment was affirmed, and the defendant appealed to this court.</p>

This action was brought by the mother of a minor son, whose father was dead, and for whom no guardian had been appointed, to recover for his services while in the employ of the defendant for the period of about six months, or 161 days in all, at one dollar per day, and amounting to $161. The cause was tried before a justice of the peace of the county of Cortland and a jury.

<p>Certiorari to the Otsego sessions. The facts are sufficiently stated in the opinion of the court.</p>

Exceptions ordered to be first heard at General Term. The defendant was a contractor to keep in repair section Ho. 1 of the Erie canal, including a bridge across Canal street, and on Spring street, in the village of West Troy, and the action was for negligence in not keeping said bridge in repair, in consequence of which it broke down and one Michael Conroy was killed.

<p>A writ of certiorari will not be sustained to review the proceedings of a highway commissioner in laying out a road, where it appears that the relator was not a party to the proceedings for laying out such road,"and has no direct interest in the road, either as owner of property over which it passes, or otherwise; the only interest which he claims in the proceeding being that his business as a tavern-keeper will be injured by the highway to be laid out, by the diversion of travel from the road on which his tavern is located.</p> <p>It seems one whose lands are not interfered with, and having no interest except as inhabitant, taxpayer or officer of the town, is not entitled to a certiorari to review the action of highway commissioners of the town in laying out a highway.</p>

<p>An agreement, having the effect to prevent competition at an auction sale of property, is void in law, as against public policy.</p> <p>No subsequent acts of the parties under such a contract will have the effect of ratifying or confirming it, or estop the parties from asserting its invalidity.</p> <p>Accordingly, where plaintiff and defendant agreed in writing that on a partition sale of certain real estate, of three-sevenths of which the defendant wss the owner as trustee for infants, the defendant would not bid, and that if the plaintiff should become the purchaser, plaintiff should pay four-sevenths and defendant three-sevenths of the purchase-money, and that the property should be divided between them by a line agreed upon,—Held, in an action of ejectment, brought to recover from defendant the piece to which he became entitled under such agreement^ he being in possession thereof, the plaintiff having purchased at the sale and taken a conveyance, that such agreement being void as against public policy, plaintiff was not estopped from claiming that the , contract was illegal, although he had received from the defendant his share of the purchase-price or a portion thereof, and had made no offer to refund it, and that being the legal owner of the premises he could recover the portion claimed by him.</p>

The action was brought to rescind a contract executed between plaintiff and defendant for exchange of plaintiff’s property at Dexter, Jefferson county, for land of defendant in Michigan, and the deeds executed thereunder, on the ground of fraud.

Appeal by the plaintiff from a judgment of the Herkimer County Court, rendered on appeal from the judgment of the Justice’s Court. The facts are stated in the opinion.

<p>Appeal from a judgment reforming a mortgage, and for the foreclosure thereof, entered upon the report of a referee. .The facts appear in the opinion.</p>

<p>Appeal from a judgment for the plaintiff, recovered at Special Term in Oswego county, upon trial by court without a jury. The facts sufficiently appear in the opinion.</p>

The nonsuit was granted on motion of the defendant’s counsel at the close of the opening of counsel for the plaintiffs.

<p>Where a referee’s findings do not expressly negative an allegation of fraud in the complaint, and an inference that he has found upon it affirmatively would contradict and destroy the whole theory upon which he has determined the case, such an inference cannot he made.</p> <p>A mortgage void between the parties may he removed, in equity, as an obstruction to the collection of a judgment recovered after execution of the mortgage, but for debt incurred prior to such execution.</p> <p>But in such case it must appear that the mortgage is entirely void, and, as between the parties, constitutes no claim either in law or equity.</p> <p>Pursuant to an unwritten agreement for sale of oil lands in Pennsylvania, the vendor made and delivered to the vendee a written instrument, supposed and intended by both to convey the title, but imperfect and inoperative in not containing the grantee’s name; and the latter thereupon executed a mortgage for the price upon land in this State,—Held, that the grantee had a right in equity to compel the execution of a proper conveyance, and that the mortgage was valid as against judgment creditors of the mortgagor.</p> <p>jBeld, further, that the contract was not executory, resting in paroi, but executed.</p> <p>Nor will equity, in such case, consider whether the bargain out of which the mortgage arose was advantageous to the mortgagor or otherwise.</p> <p>And it seems, that the mortgage, though based upon a contract void by the statute of frauds, could not be avoided by the mortgagor if the mortgagee was willing to perform.</p>

Appeal by defendant from a judgment entered in favor of plaintiff upon the report of a referee. The action was brought to recover certain moneys had and received by defendant of the plaintiff. The answer set up a denial and counter-claim. The fact that the defendant received the moneys as the agent of the plaintiff, appeared by the evidence.

The action was brought to recover the amount of an overpayment upon contract for sale of real estate, and for a deed in accordance with the true description and contents of property described in the contract.

The action was brought for the purpose of enjoining the defendants from closing a certain basin, known as Child’s basin, situated in the city of Buffalo, and communicating with the waters of the Erie canah The plaintiffs were proprietors of mill seat lots, situated upon the basin, and alleged, among other things, that for more than forty years the basin had been used in common by the proprietors of lots adjacent thereto, under claim of right, without payment of rent or…

This action was brought under the statute for negligently causing the death of the plaintiff’s intestate, at a railroad crossing in the city of Buffalo, and tried before the court and a jury at the Erie county circuit, in January, 1868.

<p>It is sufficient to confer jurisdiction of the defendant upon a justice of the peace, in the case of a summons served by copy only, if the plaintiff appears in person on the return of the summons, and the defendant, by attorney, who does not prove his authority to appear, and issue is joined, and the case adjourned by consent without the plaintiff’s requiring proof of the attorney’s authority, or objecting to the absence of it. (Potter, J., dissenting.)</p> <p>The statute (2 R. S., 283, § 45) does not make any distinction, between the proof required to be made of authority to appear in the case of a summons personally served, and of one served by leaving copy only. In either case, such authority is admitted where the opposite party appears and joins issue without objection to the absence of proof of it.</p> <p>Where the summons is served by copy, and the defendant appeals from the judgment upon errors of fact, to be established by affidavits and other proofs (Code, § 866), and relies on want of authority to appear for him below, he must show the fact by affidavits or testimony.</p>

This is an appeal from a judgment entered upon the findings and decision of one of the justices of this court, in an action tried before him at Special Term, without a jury.

This action was tried at the Albany Circuit, in November, 1871, where the jury rendered a verdict in favor of the plaintiff for $3,000 damages, upon a complaint that the defendant had caused the death of Thomas Hammond, the plaintiff’s intestate, by wrongful act, neglect or default.

Oase agreed upon under section 372 of the Code. The question presented is the construction of the will of James Kelly, deceased, who died on the 20th of December, 1852, leaving a last will and testament, which was admitted to probate on the 29th of December, 1852, by the surrogate of Albany county. The property devised consisted of a house and lot situated in the city of Albany. The first provision of the will is for the payment of his debts.

<p>Prior to the amendment to section 101 of the Code in 1870, the statute of limitations, in cases other than those excepted by that section, began to run against a married woman, continuing the coverture, only after five years.</p> <p>And if she died before the expiration of five years,her representatives had the full time limited by statute, in which to bring an action upon a claim which survived to them.</p>

This action was brought by the plaintiff, as mother, to recover damages sustained by reason of defendant’s having “ debauched and carnally known ” her daughter and servant. The answer denies most of the material allegations of the complaint, alleges that the daughter was_ not the servant of plaintiff, and that she became pregnant, if at all, by some person other than the defendant, and with the privity and consent of plaintiff.

The plaintiff appeals from a judgment in favor of the defendant denying the plaintiff the relief sought. The judgment was entered under the direction of Mr. Justice Hogeboom, after a trial before him without a jury at the Albany Circuit, in November, 1870.

This matter comes up to this court upon certiorari to the Hon. William L. Learned (see ante, vol. 3, page, 408), a justice of the Supreme Court, upon an order made by him upon habeas corpus, by which order one Watson was released from imprisonment in the county jail of Rensselaer county for an alleged contempt in disobeying a decree of the surrogate of the county of Rensselaer, which directed Watson, as sole surviving executor of James Scudder, deceased, to pay to the…

<p>Appeal by the defendant from a judgment of the Otsego County Court, affirming a judgment rendered in Justice’s Court.</p> <p>In December, 1866, the defendant operated a railroad with its eastern terminus at Albany. One Race was its agent at Otego. He had no power or authority from the defendant, or any of its officers or agents, to make a contract to carry freight beyond the line of its road.</p> <p>The evidence, however, authorized the court to find that, assuming to act for defendant, he agreed with the plaintiff and his assignee to carry a quantity of butter from defendant’s station at Otego to the city of Hew York for sixty-one cents per hundred.</p> <p>On the 19th of December, 1866, plaintiff delivered 130 packages of butter at defendant’s station at Otego, for which Race gave plaintiff an agreement on behalf of the defendant, that the same had been received, and “which we agree to deliver at our freight station at Albany.”</p> <p>The written part of the agreement Race had power to make, and was as follows:</p> <p>“ Albany and Susquehanna Railroad, ) Otego Station, December 19, 1866. j</p> <p>“ Received from D. Wait, in apparent good order, the following articles: 130 packages of butter, marked £B. W. Nelson, N. Y.,’ which we agree to deliver at our freight station in Albany.</p> <p>“ÍI. M. RACE, AgeniG</p> <p>The verbal part of the agreement raised the question of the agent’s power and the defendant’s liability.</p> <p>The butter was received in New York. The freight exceeded sixty-one cents per hundred, which plaintiff paid. The justice rendered judgment for plaintiff for less than this sum.</p> <p>The defendant appealed to the County Court, where the judgment was affirmed, and it appealed to this court.</p>

This was an appeal by the plaintiff from a judgment for the defendant, entered upon the report of a referee. The action was brought to recover an amount paid by the plaintiff for insurance upon a quantity of flour, which had been destroyed by fire at Ogdensburgh, while awaiting transportation from that place to Boston.

Appeal by defendant from an order of the County Court, affirming a judgment below in favor of the plaintiff. The plaintiff, Avery, obtained a judgment against the defendant, Woodbeck, before G. W. Garrison, Esq., a justice of the pea.ee of Greene county,, for thirty-five dollars. There was no appearance by defendant, Woodbeck, in the case Refere the justice. ?

This action was tried at a Special Term in Otsego county, where the complaint was dismissed with costs.

<p>The Supreme Court may allow an amendment to a notice of appeal to the Court of Appeals from an order granting a new trial, where the time for appealing has expired, by inserting therein, nunc pro time, an assent that “ if the order be affirmed judgment absolute may be rendered against the appellant” (Code, § 11, sub. 2), where the notice has been given in good faith and the omission was through mistake.</p>

This action was brought to recover the value of a quantity of law blanks, legal forms, printed blanks, paper, stationery, etc., which the plaintiffs alleged that they owned, and that the defendants received them unlawfully and converted them to their own use. The defendants denied the material allegations in the plaintiffs’ complaint. The action was tried at the Albany Circuit, in November, 1871. The jury rendered a verdict, in favor of the plaintiffs, for $2,210 damages.

The action was brought by the people of the State, pursuant to authority given by chapter 642, of the Laws of 1869 (Sess.

This was an appeal by the defendants from a judgment in favor of the plaintiff', entered upon a referee’s report. The facts appear in the opinion.

<p>In an action on an agreement to pay a royalty on sales of patented impie ments, and to account for sales made or implements disposed of,—Held, that the manufacture and shipment of the implements from the defendants’ factory was prima facie evidence of their sale.</p> <p>The defendant proved a supplemental agreement, not mentioned in the pleadings, which upon proof of other facts would have reduced the recovery, no pretence of having been misled or injured being made.—Held-that a nonsuit on the ground of variance was error.</p>

This was an appeal from a judgment entered upon the decision of a referee in favor of the plaintiff. The plaintiff sued to recover the amount of an insurance upon the life of Jonathan 0.