Volume 5 — Thompson & Cook's New York Supreme Court Reports

<p> Evidence—wife competent witness in action against husband,—personal transaction with deceased person. </p> <p>In an action by the executors of a mortgagee to foreclose a mortgage where the defense was usury; held, (1) that the wife of the mortgagor who signed the mortgage was a competent witness for defendant, but (3) her inchoate right of dower rendered her interested in the event of the suit, so as to disqualify her under the Code, § 399, from testifying to a personal transaction with the testator.</p>

Appeal by Frederick Knothe from a decree of the surrogate of Erie county, charging appellant, who was general guardian of Mary Kaiser, with one-sixth part of the sum of $1,283.50 which he should have received for the rent of premises in addition to what he did receive for such rent.

Memoir by plaintiff for a new trial, after a nonsuit at the circuit, upon exceptions ordered to be heard in the first instance at the general term. ' The action was brought in Cattaraugus county by Lucius N. Bishop against Francis Barton to recover damages received by plaintiff by reason of the falling of a highway bridge. The defendant was at the time such bridge fell commissioner of highways of the town of South Valley, in said county.

Appeal by defendant from a judgment in favor of plaintiff entered upon the verdict of a jury. The action was brought in Orleans county by Joseph Pratt against Luther T. Norton to recover for apples alleged to be sold and delivered to defendant by plaintiff ’s assignors, four in number.

Yale, administrator, with the will annexed, etc., of Henry H. Van Burén, deceased, for a re-settlement of the accounts of his predecessors Jeremiah S. Baker, executor, and George R. Sanford and Sarah A. Van Burén, former administrator and administratrix with the will annexed of said testator. The testator died in 1868. His will, in which the above-named executor was appointed, was duly proved and letters testamentary issued.

Appeal by defendant from a judgment, in favor of plaintiff, of the Cattaraugus county court entered upon the verdict of a jury, and from an order denying a new trial. The action was brought in a justice’s court by Alonzo France to recover damages for an injury sustained by the plaintiff’s horse at a highway crossing over defendant’s railway. The injury was in consequence of a defect in the planking between the rails, causing the horse to stumble.

Appeal by defendant from a judgment in favor of plaintiff entered upon the report of a referee. . The action was brought in Allegany county by Herman Rice and another against Wilbur J. Manley to recover damages for the failure of one Stebbins to deliver cheese under a verbal agreement to that effect, which failure was caused by the false representations of defendant made to said Stebbins. The circumstances were these.

Appeal by defendant from a judgment of the county court of Niagara county in favor of plaintiff entered upon the verdict ox a jury- The action was brought in a justice’s court by John J. Erazer against Christian Kimler to recover the value of plaintiff’s horse, which was run into and injured so that he died by defendant’s runaway horse. The material facts appear in the opinion.

Appeal by plaintiff from a judgment dismissing the complaint entered upon the report of a referee. The action was brought in Monroe county by Patrick Sands against Elmer D. Benedict, to recover damages for an alleged false imprisonment. The facts fully appear in the opinion.

<p>Appeal by defendant from a judgment in favor of plaintiffs, entered upon the report of a referee.</p> <p>The action was brought in Onondaga county by Alexander J. Vroman and others, constituting the firm of Vroman, Bowers & Co., against the defendant above named, a common carrier, to recover damages for the negligent delay of defendant in delivering goods placed in its charge for transportation. The circumstances were these: In 1871, plaintiffs, who do business in Syracuse, N. Y., entered into a contract with one Wehe, a merchant of Chicago, 111., to deliver to him on or about the 10th of December, at his store, in Chicago, a quantity of ladies’ shoes. At that time, eight days was a reasonable time within which to transport such goods by express from plaintiffs’ place of business in Syracuse, to that of Wehe in Chicago. For the purpose of carrying out their agreement, on the 2d of December, plaintiffs delivered to defendant at Syracuse, the goods contracted for directed to Wehe, and defendant undertook to transport them to Chicago and deliver them to Wehe. At the time of receiving the goods, defendant’s agent gave to plaintiffs a receipt therefor, containing among other stipulations and conditions, designed to exonerate defendant from its ordinary liability as common carrier, the following:</p> <p>“ Nor shall this company be liable for any loss or damage of any box, package, or thing, for over $50, unless the just and true value thereof is herein stated; nor upon any property or thing unless properly packed and secured for transportation, nor upon any fragile fabrics, unless so marked upon the package containing the same, nor upon any fabrics consisting of or contained in' glass. This company shall not be liable for any loss or damage unless the claim therefor shall be made in writing within thirty days from the accruing of the cause of action, in a statement to which this receipt shall be annexed. The party accepting this receipt hereby agrees to the conditions herein contained. For the company, Perkins, agent.” The value of the goods was not stated in the receipt.</p> <p>The defendant did not offer to deliver the goods to Wehe until the 19th day of December, when Wehe refused to receive them in consequence of their late arrival, and to pay the. price agreed to be paid by him to plaintiffs therefor. The goods were returned to plaintiffs, who paid the charges for transportation thereupon.</p> <p>During the time the goods were delayed in Chicago and being returned plaintiffs had various interviews with the agent of defendant at Syracuse for the purpose of obtaining a settlement of their loss, and negotiations were pending for a settlement over two months, but no written notice of loss with the receipt attached was ever presented.</p> <p>At the time of the offer to deliver the goods to Wehe in Chicago there was no demand for such goods in that market. The price agreed to be paid by Wehe for all the goods sent was §723, and expenses of transportation. The best price plaintiffs could obtain for the goods after their return to Syracuse was $510. The difference between the two amounts added to the sums paid by the plaintiffs for transportation was awarded by the referee as damages.</p>

Appeal by defendant from a judgment in favor of plaintiff, entered upon the verdict of a jury. The action was brought in Onondaga county by Thomas D. Green against Calista Skeel as maker and Albert Skeel and Charles W. Skeel as indorsers of a promissory note reading as follows : “ Summit Station, April 21, 1873. “ Four months after date, I promise to pay to the order of Albert Skeel, three hundred dollars at the Syracuse National Bank, value received with interest. “$300.00.

Appeal by plaintiff from a judgment in favor of defendants, in an action tried by the court without a jury. The action was brought in Oswego county, by Linus P. Marsden against Thomas Cornell and John Costello, to obtain the possession of a canal-boat which plaintiff claimed as mortgagee. The mortgage was given by one L. Garvey, who purchased the boat of plaintiff, and a copy was filed in the office of the auditor of the canal department, September 22, 1870.

Appeal by defendant from a judgment in favor of plaintiff entered upon the verdict of a jury. The action was brought in Onondaga county by Daniel Tripp against German W. Pulver to recover for the alleged wrongful conversion of a horse. The necessary facts fully appear in the opinion.

The plaintiff in error was jointly indicted with one Taylor for a burglary committed in April, 1873. The prisoners demanded separate trials. Taylor was first tried and convicted. On the trial of' plaintiff in error witnesses were called on behalf of the people to identify certain tools found in the place where the burglary was committed and to testify to the fact that Taylor ordered the tools at their establishment. Such other facts as are material appear in the opinion.

Appeal by plaintiff from a judgment dismissing the complaint in an action tried by the court without a jury. The action was brought in Cattaraugus county, by Truman R, Colman against Edwin R. Shattuck and others, to set aside a deed from the comptroller, given after a sale for unpaid taxes, of certain lands to which plaintiff claimed title, as a cloud upon such title. All the necessary facts will be found in the opinion of Mr. Justice Lamost.

Appeal by defendant from a judgment in favor of plaintiff, entered upon the report of a referee.

The action was brought in Chautauqua county by Mary L. Hay-croft, to recover for injuries received by being run into by one of defendants’ locomotives at a point where defendants’ tracks crossed Elk street, in the village of Dunkirk. The necessary facts appear fully in the opinion.

Appeal by defendant from a judgment of the Niagara county court affirming a judgment réndered in a justice’s court in favor of plaintiff. The action was brought by James A. Tice, Jr., against Ruel Gallop, to recover damages for a breach of warranty in the sale of a horse. The horse was .sold to plaintiff by one Anson Burgo, the agent of the defendant for that purpose. Burgo had authority to sell the horse, the only restriction being that he should not sell for less than $60.

Appeal by defendants from an order at the special term disallowing the taxation of a trial fee. The action was brought in Onondaga county by the plaintiff above named against Alexander McKinstry and others. The trial of the same was commenced at the circuit, a jury impaneled, a witness was sworn and examined, when the court of its own motion ordered the cause referred to Cyrus Sweet, Esq., to hear and determine the same, the costs to abide the event.

Appeal by defendants Shults, Shaver and Snell, from a judgment in favor of plaintiff, entered upon the verdict of a jury and from an order denying a new trial. The action was brought in Steuben county by Phebe Benjamin against Lyman Arnold and others, upon a promissory note reading as follows: “ $1,000.

Appeal by defendant from an order at the special term overruling a demurrer to the complaint. The action was brought in Erie county by Ann Eliza Hammond against Mary T. Cockle and others to set aside a deed, and for other relief. The necessary facts appear in the opinion.

Appeal by defendant from a judgment in favor of plaintiff entered upon the report of a referee. The action was brought in Seneca county by James F. Dalrymple against Joseph Hillenbrand, upon a promissory note purporting to be inade by the firm of Altenbrand Brothers, payable to the order of themselves, and which was indorsed by the makers and defendant. Sufficient facts appear in the opinion.

Appeal by defendant from a judgment in favor of plaintiff, entered upon the report of a referee. The action was brought in Cattaraugus county by Charles P. Adams against William M. Farr, to recover for the wrongful and unlawful entering a mill and injuring the machinery, etc. The acts complained of were the removal from such mill of a shingle machine, shafting and pulleys, etc. . Sufficient facts appear in the opinion.

The proceeding was instituted upon the relation of Alfred A. Howlett and others against the Mayor and Common Council of the city of Syracuse. The circumstances were these: In March, 1870, certain owners of land in block 111 in said city, petitioned the common council to extend a public alley from its then terminus northerly through said block. The common council accordingly took steps to appropriate the land necessary for said improvement.

Appeal by plaintiff from a judgment in favor of defendant, entered upon a verdict directed by the court, and from an order denying a new trial. The action was brought in Lewis county by George R. Mills against Robert Porter, to recover damages for the failure of title to a note.

Monos by defendants for a new trial upon case and exceptions, under section 268 of the Code. The action was brought in Monroe county, by Henry Ten Eyck against John Craig and another, for an accounting and to redeem from a mortgage. During the pendency of the action, John Craig died, and Oscar Craig and Daniel W. Powers, his executors, and Helen M. Powers, his sole heir at law, were substituted as defendants.

Appeal by defendant from a judgment in favor of plaintiff, entered upon the verdict of a jury. The action was brought in Cattaraugus county by Francis H. Beard and another against Lo.renzo Yates to recover damages for the diversion of water from plaintiff’s grist-mill and other alleged injuries to plaintiff’s property. The complaint alleged the conveyance by one Thomas of certain lands, through which ran a certain stream, to one Dedrick, who conveyed the same to plaintiff.

Appeal by John H. Hazard from a decree of the surrogate of Erie county, admitting to probate the last will and testament of Maria B. Hazard, deceased. The appellant was a son of the testatrix. The respondents were Edward E. Hazard, another son, Morris Hazard, the minor son of Edward E., a beneficiary under such will, and Robert R. Hefford and Robert P. Wilson, the executors thereof.

Appeal by-plaintiff from a judgment in favor cf defendant, entered upon the verdict of a jury. The action was brought by James E. Bruce against John C. Wright, as indorser of a promissory note. The facts sufficiently appear in the opinion.

Appeal by the New York Central and Hudson River Railroad Company from an order at the special term denying writ to put appeHant in possession of lands taken from Abner A. Armstrong for appeHant’s railroad. The opinion states the only point in controversy.

Appeal by Gilbert J. Stevens, administrator of the estate of Eliza J. Stevens, from a decree of the surrogate of Cayuga county. Eliza J. Stevens, the wife of the appellant, received for her interest in her father’s estate two promissory notes, amounting to the sum of 84,019.

<p>Constitutional law—legislature may pass act changing the burden of proof as U title —Evidence — admission of will to probate is, of competency of testator— Pulteney estate — title to, valid.</p> <p>By Laws of 1821, chap. 19, entitled “ An act to perpetuate certain testimony respecting the title to the Pulteney estate, in this State,” it is provided (§ 3) that copies of the depositions taken in accordance therewith, duly certified shall be prima facie evidence of the facts in all suits in which the title to the Pulteney estate may, in anywise, be drawn into question. Held, that the legislature had power to pass the act, notwithstanding (1) it changed the burden of proof from those asserting to those denying the title ; and (2) no provision was made for notice of the taking of the deposition to those interested in rebutting the testimony ; and (3) the chancellor was, by the act (§ 2), made the exclusive judge of the weight of the evidence.</p> <p>A will was admitted to probate in this State at a time when it was required that the testator should be of a specified age, and it was then proved that testator was oí full age. Held, sufficient evidence that testator was of the age required by the laws of this State notwithstanding he resided in Scotland, where, by law, a younger person might make a will.</p> <p>The title to the Pulteney estate held valid. People v. Snyder, 41 N. Y. 397.</p>

Appeal by defendant from a judgment of the Tioga county court reversing a judgment of a justice of the peace. The action was brought by Kathan Bighttiaire against Anson M. Kimball to recover $7 paid by plaintiff and received by defendant under the following .circumstances: A judgment was recovered before the defendant as a justice of the peace against one James L. Bightmire for $11.40 damages and $5.55 costs.

Appeal by defendant from an order of the Otsego county court, fHRim'ssirig the appeal by defendant from a judgment rendered by a justice of the peace. The action was brought by Henry L. Burrows against Eslíe R. Norton, and judgment rendered for plaintiff. Defendant’s appeal therefrom was dismissed upon the ground that neither the defendant nor his attorney signed the notice of appeal at the bottom thereof.

Appeal by Daniel Hartnett and others from an order of the surrogate of Albany county, refusing to revoke letters testamentary issued by him to the respondent, Stephen S. Wandell, under the will of Andrew Alexander, deceased. By said will, in the second clause, all the rest of the testator’s property, real and personal, was given to his wife, Mary E. Alexander, absolutely.

<p>Excise — civil damage lam—Constitutional law.</p> <p>The civil damage act (Laws 1873, chap. 646) held (1) to be part of the excise law, and binding upon those taking licenses thereunder, and (2) not so far as it affects the one selling intoxicating liquors, in contravention of the constitutional provision forbidding laws impairing the obligation of contracts.</p>

Appeal by defendant from a judgment in favor of plaintiff in an action tried by the court.

Appeal by plaintiffs from a judgment entered on the report of a referee in favor of defendant, except as against plaintiff, Prudence Mattoon. The action was brought in St. Lawrence county by Harvey Mattoon against John N. Young to recover possession of thirty-five acres of land. Harvey claimed by deed from his father, John Mattoon. Subsequently the other heirs of John Mattoon, and his widow, Prudence Mattoon, were made parties plaintiff.

Appeal by plaintiff from a judgment in favor of defendant in an action tried by the court without a jury. The action was brought in Broome county by George Germond to recover upon a policy of insurance for a loss by fire. Sufficient facts appear in the opinion.

Appeal by defendant from a judgment in favor of plaintiff, entered upon the verdict of a jury and ffrom an order denying a new trial. The action was brought in Rensselaer county by Ami De Witt Mitchell, administrator, etc., of Elizabeth M. Mitchell, deceased, to recover damages for the negligent killing of said Elizabeth M. Mitchell, on the 37th of October, 1870, while crossing a public highway in the village of Greenbush.

Appeal by The Manufacturers’ National Bank of Troy and others, from a judgment entered upon the report of a referee, upon a disputed claim against the estate of David B. Cox, deceased, of which the respondent, Mary E. Cox, was administratrix. The case was referred, under the statute. The appellants are the assignees of the claim, from the surviving partners.

Motion by plaintiff for a new trial after a nonsuit upon exceptions ordered to be heard in the first instance at the general term. The action was brought by Riley Bush against Charles H. Knox to recover the possession of a gold watch and chain. The defendant plead general denial, and in addition that the question sought to be litigated in this action had been once litigated and decided adversely to plaintiff, and that plaintiff was estopped thereby.

Appeal by defendants from a judgment in favor of plaintiffs entered upon the report of a referee. The action was brought in Schuyler county by Green Bennett against' Charles Cook, to redeem from defendant certain lands held by him under the following circumstances: In December, 1848, one Alva Nash owned a contract for the lands in question, executed between himself and one Samuel Watkins. Nash was insolvent.

<p>Execution — redemption from sale—right to redeem of judgment creditor of fraudulent grantor—redemption on last day of time at place other than sheriff’s office-</p> <p>0. conveyed lands in fraud of Ms creditors. Ifihe lands were sold under execution upon a judgment docketed prior to the conveyance. Subsequently M. obtained judgment against O. upon a debt contracted prior to the convey-i anee. Held, that M. was entitled to redeem from the sale under execution.</p> <p>M., on the last day of the fifteenth month after the sale, gave the sheriff the proper papers and paid the amount required to redeem at a place other than the sheriff’s office. Held, invalid to redeem under Laws of 1847, chapter 410, § 3.</p>

Appeal by defendant from a judgment in favor of plaintiff entered upon the report of a referee. The action was brought in Chemung county by John Amot, Jr., against The Pittston and Elmira Coal Company to recover the value of certain coal sold and delivered to defendant by plaintiff’s assignor, the Butler Colliery Company. Said assignor and defendant were both corporations, organized under the laws of the State of Pennsylvania, for the business of mining and vending coal.

Appeal by defendant from a judgment in favor of plaintiff, in an action tried by the court without a jury. The action was brought in Hlster county by Jesse Fiero, administrator, etc., of Sarah C. Turpin, deceased, against Eliza Jane Fiero, to recover the possession of a savings bank book and other personal property, belonging to the deceased. The defendant claimed to own the book by virtue of a gift of the same to her by the deceased in her last illness.

Cebtiobabi to the board of assessors of the city of Albany upon the relation of Chauncey P. Williams and others, to correct an assessment made by the board of assessors of the city of Albany. The case came before the court upon the return of the defendants to such writ of certiorari, and upon a motion of. the defendants to quash or supersede the writ.

<p>Appeal by defendant from a judgment in favor of plaintiff entered upon the verdict of a jury and from an order denying a new trial.</p> <p>The action was brought in Suffolk county by John Wagner, to recover damages for injury done to plaintiff’s premises and property thereon by reason of the alleged negligent construction of an embankment on defendant’s railroad. Plaintiff was the owner of a lot of land in the town of Southampton, in said county, and the defendant was the owner of land adjoining, which it had purchased from plaintiff. Plaintiff’s dwelling-house, which was situated on this lot, was nearly at the bottom of a valley, and before the railroad was built the highways crossing this valley were on a level with the surrounding land, and the surface water from the land above defendant’s premises, which gathered at every rain and from the snow in winter, ran 'freely by said premises, along and across the highways, and was discharged into what is known as the Shinecock Bay. The defendant built an embankment fifteen feet high across this valley and placed no culvert therein, and raised the highways. The complaint alleged that by reason of these obstructions the water accumulated in large quantities and ran into plaintiff’s house and caused the damage complained of. Other facts sufficiently appear in the opinion.</p>

Certiorari issued upon the relation of George W. Hallock, to review a judgment recovered before Brinley D. Sleight, a justice of the peace of the town of East Hampton, Suffolk county. The judgment in question was recovered against the relator, under the name of Richard Roe, by one Nathaniel Dominy, for a penalty.

. Motioít by plaintiff for a new trial upon an exception ordered to be heard in the first instance at the general term. The action was brought in Kings county by John Dickinson against Ellen Vanderpoel and another to recover for damages done to goods belonging to plaintiff by the heat of a steam boiler erected and maintained by defendants. The complaint alleged that the goods were the property of plaintiff. This was not denied by the answer.

Appeal by defendant from an order at the special term granting leave to plaintiff to serve a supplemental complaint. The action was brought in Westchester county by Charles L. Tiffany against Henry A. Bowerman, Thomas H. Stout and another, to have a conveyance made to defendant Bowerman and another adjudged to be for the benefit of the plaintiff, and other relief. The material facts fully appear in the opinion.

Appeal by defendant from a judgment in favor of plaintiffs in an action tried by the court without a jury. The action was-brought in Orange county by John S. Taylor and Isaac Taylor against Thomas Hepper, to compel defendant to remove a barn. The circumstances were these: In the early part of 1868 the defendant was the owner of certain lands situated in the village of Walden, in said county.

Appear by defendant from a judgment in favor of plaintiff upon a trial by the court. > The action was brought in Kings county by Stephen Haynes against Horatio G-. Onderdonk, to determine a claim by defendant to certain real property belonging to, and in possession of plaintiff.

Appeal by defendant from a judgment in favor of plaintiff in an action tried by the court without a jury. The action was brought ih Kings county by Ann J. Boylston against Andrew S. Wheeler to determine an alleged claim by defendant to certain real estate owned by and in possession of plaintiff.

Appeal by defendant from a judgment in favor of plaintiff entered upon the verdict of a jury. The action was brought in Kings county by Lewis W. James against Henry Hamilton, upon a promissory note for $4,750. The note was given by defendant to plaintiff in payment of certain shares of railroad stock sold by plaintiff to defendant.

Appeal by plaintiffs from a judgment in favor of defendants entered upon the verdict of a jury. The action was brought in Dutchess county by Pomeroy P. Dickinson and others against the Water Commissioners of the city of Poughkeepsie to recover for work, labor and services under a contract for excavating. The opinion states sufficiently the only material point in the case.

Appeal by defendants from an order at the special term ordering a reference.

Appeal by the commissioners of Prospect Park and The City of Brooklyn from an order at special term, vacating the report and assessment of the commissioners named, assessing property for the expense of Prospect Park, so far as it relates to property not within the territorial limits of. Brooklyn. The assessment in question was imposed by the commissioners mentioned who were appointed under Laws of 1863, chapter 314.

Appeal by defendant from a judgment in favor of plaintiff entered upon the verdict of a jury and from an order denying a new trial. The action was brought in Kings county byEmelie Leslie against the Knickerbocker Life Insurance Company to recover upon an insurance policy issued by defendant upon the life of James Y. Leslie. Sufficient facts appear in the opinion.

Appeal by plaintiffs from a judgment in favor of defendant, entered upon the report of a referee. The action was brought in Kings county by James C. Holden and others against John W. Burnham and others to set aside as fraudulent a conveyance of real estate made by said John W. Burnham through Ashburton S. Lewis to the wife of said grantor. Lewis and the wife were also made defendants. The facts sufficiently appear in the opinion.

Appeal by plaintiff from a judgment in favor of defendant, entered upon the report of a referee. The action was brought in Kings County by Henry S. Chandler against John T. Hoag and others, to recover the amount of a debt due from a corporation, formed under the general act and known as the Star Publishing Company, of which the defendants were trustees. The action was before trial discontinued as to the defendants other than Hoag. Other material facts appear in the opinion.

Appeal by defendants from a judgment in favor of plaintiff entered upon the report of a referee. The action was brought by Benjamin F. Jervis against Jessie Hoyt and others, to recover a balance of account between plaintiff and defendants. The action was brought in Madison county, and the place of trial was subsequently changed to Kings county.

Motion by defendant for leave to go the Court of Appeals after an affirmance by the general term of a judgment in favor of plaintiff. The action was brought by Julia Woodward against Henry Bugsbee, administrator, etc., of Isaac Bugsbee, deceased, to recover for services. The decision, from which an appeal was sought by this motion, is reported in 4 N. Y. Sup., at page 393, where the facts are fully given.

Appeal by Annetta Wing from an order at special term denying a motion to vacate an order in relation to the person and estate of a lunatic, and also denying a motion for leave to sue the committee of such lunatic. • The motion was made by the appellant to bring an action against Samuel H. Crook, committee óf the estate and person of George E. Wing, a lunatic, the husband of the appellant, to set aside a deed, and for other relief.

Cebtiobabi upon the relation of John Mann, directed to Jacob Mott, and others, commissioners of highways and town clerk of the town of Greenburgh, Westchester county, to review the proceedings had upon the assessment of relator’s damages for laying out a highway in said town. The highway mentioned was laid out by proceedings duly taken for that purpose by the commissioners of highways.

Motiost by plaintiff for judgment on a verdict directed at the circuit, subject to the opinion of the court at general term. The action was brought in Suffolk county by George Alexander against the Germania Eire Insurance Company, to recover for the loss by fire of a dwelling house, upon which defendant had issued a policy. The house mentioned was situated in Bay Shore, in said county, and was, in the month of May, 1872, unoccupied and uninsured.

Appeal by defendant from a judgment in favor of plaintiff, entered upon the report of a referee appointed in pursuance of the statute to determine a claim against -executors. The claim was made by William E. Robinson, against Charles H. Kalbfleisch and others, executors under the last will and testament of Martin Kalbfleisch, deceased, principally for services rendered and money loaned to and expended on behalf of said testator. The facts sufficiently appear from the opinion.

Appeal by defendant from a judgment in favor of plaintiff, entered upon the verdict of a jury, and from an order denying a new trial. The action was brought in Kings county by William J. Minshull against Edward GL Arthur, to recover for a conversion of stock by the firm of Aldrich,. Sharpe & Co., of which defendant was a member. The facts appear sufficiently in the opinion.

Arpe al by defendants from a judgment in favor of plaintiff, entered upon the verdict of a jury, and from an order denying a new trial. The action was brought in Kings county by Cyrus 0.

Appeal by Albion K. P. Dennett, and others, from an order at special term confirming the report of commissioners of appraisal in proceedings to acquire title to the lands of the appellants.

Motion by plaintiff for judgment upon a verdict for plaintiff, directed by the court, under exceptions ordered to be heard in the first instance at general term. The action was brought by James C. Miller against the Mayor, Aldermen and Commonalty of the City of New York, to recover for work, labor, and services performed, and materials furnished. The facts fully ajipear in the opinion.

<p>Parties—stockholders of corporation — Fraudulent acts of corporate directors— Cause of action —facts constituting — Demurrer —: Agency — ratification.</p> <p>In an action by certain stockholders of the N. company, a corporation, against the N. company, its directors and the 0. company, a corporation, the complaint alleged that the N. company was doing a prosperous business; that the directors, for the purpose of personal gain and to defraud plaintiffs, sold and transferred the property of the N. company to the O. coinpany for a sum far less than its value, receiving in pay therefor stock in the 0. company ; that the 0 company had knowledge that the directors had no author- ■ ity to make the sale; that the same was made under a fraudulent agreement between the directors and the 0. company; that the directors were requested and refused to take action to recover back the property, and the plaintiffs asked in behalf of plaintiffs and others interested with them, among other kinds of relief, that the sale be set aside and the property restored. Held, upon demurrer to the complaint, (1) that the plaintiffs were entitled to maintain the action (Code, £ 119); (2) that the facts alleged constituted a cause of action against the N. company and its directors (and this would not be affected by the circumstance that the complaint might not justify all the relief prayed for); (3) that the action could be maintained against the 0. company on the allegations of the complaint, and it was not necessary that the plaintiff should restore to that company what it had parted with to acquire the property.</p> <p>The complaint showed that the stock of the 0. company had not come into the treasury of the N. company. Held, that the rule that a principal who adopts' the fraud of an agent by taking the fruits, has no standing to maintain an action, did not apply.</p>

Appeal by defendant, John Trenor, from an order at special term, denying a motion by said defendant to set aside a judgment of foreclosure and sale. The action on which the judgment was rendered was brought by Hollis L. Powers against John Trenor and others, to foreclose a mortgage executed by said Trenor. At the time of the commencement of the action, said defendant was traveling in the State of California. Other material facts sufficiently appear in the opinion.

Appeal by defendant Nichols from'a judgment in favor of plaintiff entered upon the verdict of a jury, and from an order denying a new trial. The action was brought by Oliver B. Hinman against Jason M. Bowen and Charles M. Nichols upon a promissory note made by defendant Bowen. The necessary facts appear in the opinion.

Appeal by James Gill from a decree of the surrogate of New York county confirming the report of an auditor upon a final accounting. The accounting was made by appellant, who was, during her lifetime, general guardian of Catherine McGlowan, deceased, upon the petition of John McGlowan, administrator, etc., of said Catherine Sufficient facts appear in the opinion.

<p> Attorney—lien of upon judgment—readies surplus moneys upon which judgment is lien—Damages—value of legal services. </p> <p>In a reference to determine upon the distribution of surplus moneys upon a mortgage foreclosure, H., who had a judgment which he alleged to be a lien upon the surplus, filed notice of claim thereto. F., the attorney of H., also filed notice of claim to the surplus moneys for his services in recovering the judgment. The referee was ordered to ascertain and report the amount due to H. “ and any other person which is a lien and the privities of the several liens." H. made no objection to the investigation of the claim of J. by the referee founded on the standing of J. Held, (1) that the order authorized an investigation as to the amount of the claim of J., and if that authority was irregular it could only be corrected by an appeal from the order; (2) that the attorney’s lien of J. on the judgment extended to the surplus moneys; and, (3) that H. not objecting to the examination of the account of J. by the referee the proceeding was good as an arbitration, if not good as a reference.</p> <p>H. had a judgment against S. for $41,951, recovered by J. as attorney. The title to the mortgaged premises was in M. J., as attorney for H., obtained a judgment declaring the title to be in S., and the first-named judgment a lien thereon. Held, that an allowance to J. for services, of $2,713.03, was reasonable.</p>

Appeal by Simeon E. Church from an order at special term’ requiring the appellant to comply with certain terms of sale subscribed by him as purchaser at a sale under foreclosure of a mortgage. The action was brought by James Watson against Simeon E. Church and others. The facts fully appear in the opinion.

<p>Appeal by defendant, Christina K. Martling, from an order at the special term, vacating order confirming referee’s report as to the disposition of the surplus moneys in the above-entitled case, so far as it affected the parties to the motion, and referring the matter back to the same referee to take further proofs, etc'.</p> <p>The action was brought against Maria D. S. Salem, Morris Leipziger, Christina K. Martling, and others, to foreclose a mortgage executed by defendant Salem and another. Upon the sale a surplus resulted, which, both Leipziger and Martling claimed. The referee decided in favor of defendant Martling, and excluded the other claim. Afterward, upon the ground of newly-discovered evidence, the court sent the proceedings back to the referee, with directions to take further evidence, from which order this appeal was taken.</p>

Submission of a controversy without action, pursuant to section 372 of the Code of Procedure. The controversy was between Harry S. House and another, surviving executors of and trustees under the last will and testament of Benjamin Raymond, deceased, against Sidney Raymond and another, children of said testator and devisees and legatees under said will, for a construction thereof.

Appeal by the defendant, Smith, from an order at the special term giving plaintiff judgment on account of the frivolousness of the demurrer to the complaint. The action was brought by Sylvanus Judd and others against Ohauncy A. Smith and Walter Murray upon a check drawn by Smith and indorsed by Murray. The opinion states the necessary facts.

Appeal by plaintiff from an order at the special term sustaining a demurrer to the complaint. The action was brought by Maria Moffatt against William Cauldwell and another for libel.

Certiorari upon, 'the relation of John J. Sanders* to the court of special sessions to review the proceedings of that court on an appeal from an order made hy one of the police justices of the city of New York, adjudging the relator to be a disorderly person, in having abandoned his family, and directing that he pay, or cause to he paid, to the commissioners of charities and corrections $6 weekly for the support of his family.

Appeal by Jeremiah Pangburn from an order at special term, denying motion that the referee making sale of mortgaged premises refund the deposit made by the purchaser purs \ to the terms of the sale, and that he be discharged from his bit The action was brought by Henry Hirscl Livingston, executor, etc., and another, to fort At the foreclosure sale, the premises were purch Other facts appear sufficiently in the opinion. gainst William, e a mortgage, i by appellant.

<p> Criminal evidence—generad notoriety—what facts are not of—judicial notice. </p> <p>The statute relating to assault with intent to kill is not limited to assaults by means of deadly weapons, and an indictment charging that the prisoner “with a certain piece of lead, etc., willfully, and feloniously did beat, strike cut, and wound, the same being such means as was likely to produce the death of him,” the person assaulted, held sufficient.</p> <p>Upon a trial for assault with intent to kill, where it had been shown that the prisoner was upon the street where the assault took place near the time, which was about nine o’clock in the evening, and the witness testified that the street appeared to be deserted, the court charged the jury that “you have a right of your own knowledge to take notice of the circumstance that at that time, the 5th of August, no part of the city probably was more likely to be deserted, even as early in the night as nine o’clock, than that part of the avenue.” Held error. In relation to this the jury had no right to regard any thing but the evidence given.</p> <p>Matters of which the courts take notice, enumerated.</p>

Appeal by Newton S. Briggs from an order at the special term adjudging appellant to be in contempt, and from an order denying a motion to vacate an order of Mr. Justice Lawreece. The orders were made in supplementary proceedings, instituted by Allen H. Beebe and another against John S. Kenyon, upon a judgment in favor of said plaintiffs and against said defendant.

Appeal by plaintiff from an order at the special term denying motion to set aside adjustment of costs in favor of defendant. The action was brought by Robert Seaman and others against Jacob Glegner, to recover for the conversion of personal property. The facts fully'appear in the opinion.

The plaintiff in error was convicted of the offense of procuring from one Catherine Wulff, $150 upon certain false pretenses.

<p>Appeal by Bernard Eellman from an order at the special term, denying the motion of appellant, -who was purchaser at a foreclosure sale, to be relieved from his purchase.</p> <p>The action in which the judgment of foreclosure was rendered, was brought by Butler H. Bixby against Susan P. Smith and others. The material facts relating to this motion appear fully in the opinion.</p>

Appeal by plaintiff from a judgment in favor of defendant, entered upon the report of a referee. The action was brought by Philip H. Stevens against the Corn Exchange Bank, to recover the amount of a check certified by the defendant. The material facts fully appear in the opinion.

Appeal by defendant, Anton G. Methfessel, from an order at the special term, sustaining a demurrer to appellant’s answer. The action was brought by Jules G-. Tournade and another against Edward Hagedorn and others, among whom was the appellant above named, upon a promissory note given by the firm of Hagedorn & Rhode, in their firm name. The complaint alleged that the firm was composed of the defendants. The defendants other than the appellant did not answer.

Appeal by defendants, Gibbons L. Kelty and others, from an order sustaining the exceptions of defendant Henry 0. Bispham, respondent, to the report of a referee in relation to the surplus moneys deposited in this action. The action was brought against Joseph W. Duryea. and others, to foreclose a mortgage. The necessary facts appear in the opinion.

<p> Arrest—in.cwil action—fraud, must affect entire claim—Preferences—not contrary to la/w of this State. </p> <p>Where two separate causes of action are joined in one complaint an arrest will ■not lie for fraud in respect to one where the defendant is innocent as to the other. Accordingly, where an action was brought to recover the balance on a continuous account running from February to October, held that an order of arrest would not be allowed, upon the ground of alleged fraud of defendant in incurring the obligation committed in August.</p> <p>A transfer of the principal portion of defendant’s property to secure an alleged indebtedness to his sister, held not in fraud of creditors under the laws of this State, the fact of indebtedness^ not being positively controverted.</p>

Appeal by Maria L. Newcomb from an order of reference, made at special term, directing that this matter be referred to William G-.

Appeal by defendant from a judgment in favor of plaintiff upon the verdict of a jury, and from an order denying a new trial. The action was brought by William M. Newman against George H. Goddard for trespass, and injuries done by defendant to plaintiff’s person and property. The necessary facts appear sufficiently in the opinion.

Ebbob to the New York general sessions to review the conviction of Edward Murphy, the plaintiff in error. The facts fully appear in the opinion.

Appeal by plaintiff from an order at the special term denying a motion that the referee should make certain findings. The action was brought by plaintiff against Maggie B. Lacy, executrix, etc., of Erederick Lacy, deceased, and others, to recover dividends alleged to have been illegally paid out of the capital of plaintiff. The material facts in relation to the motion mentioned, fully appear in the opinion.

<p>Criminal la/ut—Jurisdiction—when objection to waived—Certiorari — cannot review proceedings after judgment—Indictment—date—Witness — cross-examination of prisoner.</p> <p>Where prisoners who were brought before a committing magistrate upon a charge of keeping a disorderly house elected to be tried before the court of special sessions, held, that this disposed of all objection to the jurisdiction of that court to try them.</p> <p>After the prisoners were convicted and sentenced their counsel desired the . court to note an.appeal to the court of general sessions for a rehearing. Held, that the action of the court thereupon could not be reviewed by eertiorari. That brings up the record and proceedings to and including, but not. subsequent to judgment. ,</p> <p>The rule is well settled that an indictment will be good if the day and year when the offense occurred can be collected from the whole statement, although they be not expressly averred.</p> <p>The prisoner took the stand as a witness in his own behalf. Meld, that the court could interrogate him as fully as necessary to test the truth of his direct testimony.</p>

Appeal by defendants from an order at the special term continuing an injunction. The action was brought by John Lester Wallack against the Mayor, Aldermen and Commonalty of the City of New York, and the Society for the Reformation of Juvenile Delinquents in the City of New York, to restrain defendants from carrying out the provisions of chapter 836 of the Laws of 1872. The plaintiff was proprietor of a theatre in New York city know as Wallack’s theater.

Appeal by plaintiffs from a judgment in favor of defendants, entered upon a verdict directed by the court and from an order denying a new trial. The action was brought by Emott Seward and another against George N. Torrence and another, upon a promissory note, made by one Tolman,. and indorsed by defendants. The note bore date July 24, 1873. Other facts appear sufficiently-in the opinion.

Appeal by Bridget McNiff, administratrix, etc., from an order at special term, confirming the report of a referee as to the distribution of certain surplus moneys. The action was brought by Henry Oppenheimer against Stuart S. Walker and others, to foreclose a mortgage. All necessary facts appear in the opinion.

Certiorari, upon the relation oi Catherine Murphy, to review the proceedings of the board of education of the city of New York upon appeal from an order of trustees removing the relator as an assistant teacher in a public school. The facts sufficiently appear in the opinions.

Appeal by the mayor, aldermen, etc., of the city of New York, from an order at the special term vacating assessment for paving Twenty-first street, in the city of New York. The order was granted upon the petition of Helen E. Little. Enough facts appear in the opinion.

Appeal Tby the mayor, aldermen and commonalty of the city of New York, from an order at special term, vacating an assessment upon lands of the petitioner, John D. Voorhis, for paving Fifty-eighth street, in the city of New York, from Sixth to Ninth avenue. The order was granted upon the ground that there was a fraud in law in omitting the assessment of two lots within the area required by the statute to be assessed.

Appeal by the mayor, aldermen and commonalty of the city of New York from an order at special term vacating an assessment for a sewer. The order was niade upon the petition of Richard Williamson. The only material question involved was the construction of a statute in relation to which sufficient facts appear in the opinion, i

Appeal by plaintiff from an order at special term granting additional allowance of costs to defendants. The action was brought by the board of commissioners of pilots against Paul N.-, Spofford and others, executors, etc., to recover penalties. The facts fully appear in the opinion.

Appeal by plaintiffs from'an order at special term affirming taxation of costs by the clerk in an action by the Board of Commissioners of Pilots against Paul N. Spofford and others, executors,.etc., of Paul Spofford, deceased.

Appeal by plaintiff from an order at the special term denying a motion made by plaintiff for a cancellation of an entry that the judgment upon which the plaintiff sued had been released, such entry being made by the clerk of the county of Hew York on the docket of the judgment.

Appeal by defendants from a judgment in favor of plaintiff, and from an order denying a new trial made upon the minutes of the justice holding the circuit. The action was brought by J. Fisher Satterthwaite against George Vreeland and others, to recover for commissions upon a sale of real estate. The facts appear fully in the opinion.

Appeal by respondents from an order at special term directing the issue of a peremptory mandamus.

<p>New York Oity—Agency — city officials special agents who cannot bind city by unauthorized acts — acceptance by other agents of city not ratification.</p> <p>The New York city officials are agents acting under clearly defined limitations and restrictions of law, imposed either by statute or ordinance, and an excess of their authority cannot bind the city or subject it to any action. The only remedy by persons performing services for, or furnishing materials to the city upon an unauthorized direction of an officer, is against the officer, and it does not follow, as in private agencies, that a ratification of the official act can be inferred from the fact that the work or materials are accepted by other officials of the city.</p> <p>Accordingly, where plaintiff received from the deputy street commissioner a general order to repair wells and pumps for the city, such officer having no authority to give such order, held, that the plaintiff had no remedy for the work done thereunder against the city, but only against the deputy street commissioner,</p>

Appeal by defendant from an order directing the issuing of a peremptory writ of mandamus. The proceedings were instituted by the Tenth National Bank of the city of New York against Andrew H. Green, comptroller of the city of New York. The facts fully appear in the opinion.

92, with interest thereon from the date of the several advances of the amounts composing said sum, being the claim of the bank for advances made to the commissioners of the new county court-house, prior to the 31st day of December in the year 1871.

Appeal by defendants, William Hoge and others, from an order at the special term appointing a receiver of the money and funds of the defendants, the Enfield Manufacturing Company, now in the hands of the defendants, William Hoge and George M. Downs, and their said firm of William Hoge & Co., and directing them to pay over to said receiver §15,726 on account of said moneys, etc. The action was brought by William Redmond and another, against the defendants above named, for the…

Appeal by Magdalena Rollwagen, from a decree of the surrogate’s court of the county of Few York, denying probate of instruments claimed to be the will and codicil of Fredérick Rollwagen, deceased. The facts are fully set forth in the opinion.

Appeal by defendant from an order at the special term continuing an injunction. The action was brought by Frederick • Humphreys against Francis W. Hurtt to reform alleged errors in a written contract between plaintiff and defendant, for the sale by defendant to plaintiff of the capital stock and assets of Humphrey’s Specific Homoeopathic Medicine Company, a corporation organized under the laws of this State.

The application was made by Salmon S. Stevens, the owner of three lots on the north side of One Hundred and Eighth street, which were taken for the improvement. The grounds of the1'-application were that he had been grossly wronged, either by the fraud or mistake of the commissioners, in their report.

Ebboe to the court of oyer and terminer of Washington county, to review the conviction of Charles Shaw. The plaintiff in error was indicted at the February term of the oyer and terminer for 1873, for the murder of his wife, Julia Ann Shaw, by poisoning with corrosive sublimate; and Sarah Briggs was jointly indicted with him, as accessory before the fact.

Appeal by defendant from an order at chambers directing a judgment for the plaintiff on the answer as frivolous. The action was brought by William S. Powers against defendant to recover damages for an injury to the plaintiff, received from a collision while riding on the defendant’s railroad. The material portion of the answer is set forth in the opinion.

<p> Legacy—when legatee takes by purchase — Executors—when personally liable, </p> <p>N. in his will gave to C. a legacy of $1,600 “ to be paid to him at my decease upon the express condition that the said 0. shall not render any account against my estate.” O. died before N. leaving no descendant; he had an account of less than $1,500 against N. After the death of N. the administratrix qf C. demanded of the executors of N.’s estate, payment of the legacy, and never presented the account of C. against the estate. The executors distributed the estate without payment of the legacy. Held, that the legacy being, to O. upon condition that his claim against N. was not presented, C would take it as a purchaser, and it would not lapse by reason of C.’s death before that of N.; that the personal representative of C. was entitled to receive the legacy and that the executors having distributed the estate, after notice of the claim of such representative without paying the legacy were personally liable for its amount.</p>

The motion is made by the defendants, other than the representatives of Mr. Dagger’s estate. The latter do not join in the motion. The action was brought by Walter S. Church against James Kidd and others for the purpose of having the rights of the plaintiff declared and decreed in certain leases, title to which was originally taken by James Kidd and Peter Dagger, and which title was, at the time of commencing the action, in Mr. Kidd and the heirs of Mr. Dagger, then deceased.

The indictment containing five counts was for forgery in the third degree, for forging and counterfeiting an instrument in writing purporting to be an account of one Samuel Johnson, for alleged services as constable against the county of Saratoga, together with the affidavit and jurat thereto attached, including the certificate of the justice.

The action was brought by George M. Rounds, an infant, by his guardian, to recover damages for an injury received in being thrown or pushed off from one of the defendant’s cars. It was tried at the Chenango circuit in May, 1873, where the plaintiff recovered a verdict of 85,000. The accident occurred at Norwich, May 3, 1873.

Appeal by defendant from a judgment in favor of the plaintiff, rendered at the Madison special term in October, 1872.

Appeal by defendant from a judgment in favor of plaintiff entered upon the report of a referee. The action was brought by Peter Hover against S. Pulver Heath, to recover moneys in the hands of the defendant, collected by him as the attorney for the plaintiff. In 1864 the plaintiff retained the defendant, who is an attorney and counselor at law, to commence an action and collect a claim for damages against the commissioners of highways of the town of Florida.

<p>Appeal by plaintiffs from a judgment dismissing the complaint.</p> <p>The action was one of ejectment and was brought by Dudley H. Jones against Elbert 0. Smith, to recover a strip of land, about twenty rods wide and seventy rods long, situated in the county of Essex. Subsequent to the trial said Dudley H. Jones died, and ■Edwin L. Jones and others, his heirs at law and personal representatives, Were substituted as plaintiffs.</p> <p>The original plaintiff and the defendant were owners of adjoining farms; the plaintiff on the west, and the defendant on the east. The true line .between them was the patent line, which divided the Montressor and the Ross patents.</p> <p>The locus in quo was situated on or along the east side of the plaintiff’s farm, being the west of the defendant’s; and was marked on the east by a fence, commencing at the south-east corner of the plaintiff’s lot, curving to the east and northerly, running along the brow of a ledge, and thence westerly to a point, supposed to be on the division line between the patents. This fence was mostly of brush with some poles and rails.</p> <p>In 1866, the defendant removed this fence, and erected a new straight one on what he.claimed was the patent line. This fence brought the strip of land in controversy within his inclosure.</p> <p>The plaintiff made title to his farm under a deed to himself dated December 29th, 1845, and traced the same back through various mesne conveyances to 1820. In the second and third of the six conveyances put in evidence, the plaintiff’s premises were bounded on the east by the west line of the Ross patent; and in the other four, on the “ east by the east line of the Montressor patent, as the same ought to be established between that patent and the west line of the Ross patent so called.”</p> <p>The defendant showed-title in himself to the adjoining farm on the east, tracing the same back to 1814. Evidence was given in regard to the occupation of the farms by the respective owners, which as the plaintiff claimed and insisted, established the brush fence as the line between them by practical location. Evidence was also given tending to show that the new fence erected by the defendant was placed on the line between the patents.</p> <p>The judge held and decided that there was no sufficient evidence of acquiescence by the respective owners of the farms, to establish the old or brush fence as the boundary of the plaintiff’s lot; and that the language of the plaintiff’s deed “ as the same ought to be established,” was an admission that the fence was not on the line. The-plaintiff’s counsel requested the court to submit the question of acquiescence in the line as the plaintiff claimed it to be, to the jury. The court declined so to do ; and directed a nonsuit in the case, to all.which rulings and decisions the plaintiff’s counsel in due time and form excepted. There were other rulings and exceptions, but it is supposed that those above given are all which need be here noted.</p>

Appeal by plaintiff from a judgment in favor of defendant entered upon the report of a referee. The action was brought by Berosus Cook against Wm. M. Rogers and others, to foreclose a mortgage. Held: “ that no amount of principal or interest was due upon the bond or mortgage when the action was commenced;” and directed judgment of dismissal of the complaint with costs.

The indictment charged the sale as made on the 1st day of February, 1874, to Hathan Gage and divers other persons. The defendant pleaded not guilty. Held: and within one quarter of a mile from the place where such general or special election or town meeting shall be held.

Certiorari upon the relation of James E. Seller against James H. Wright and others, constituting the board of commissioners of excise of the village of Delhi, Delaware county, to bring up proceedings had in May, 1874, to cancel, vacate and annul the license of the relator, taken by him on the 28th of October, 1873, authorizing him to sell ale or beer in pursuance of the 4th section of the act of 1869 (Laws of 1869 chap. 856).

Appeal by defendant from an order at the special term denying a motion for a retaxation of costs. The action was brought by Mary McLaughlin against Nicholas Smith and another, to recover for the conversion of a cider press. The action originated in a justice’s court, where the plaintiff demanded and recovered judgment for $100 damages besides costs.

0. Lockwood for the summary removal of a tenant under the statute. The writ was issued upon the relationof -Polly Murphy, who had been removed from premises occupied by her, as it was alleged, as the tenant of Timothy Murphy. The facts sufficiently appear in the opinion.

Appeal by Erastus Mack, heir at law of, and legatee under the last will and testament of Jesse Mack, deceased, from a decree of the surrogate of Sullivan county. The respondent, Sarah Mack, is the widow of Jesse Mack, and the executrix of his last will and testament. As such executrix she filed an inventory with the surrogate of Sullivan county, in which the assets of the estate were set down at the sum of $153.37.

Motioh by defendant for a new trial after a verdict directed by the court in favor of plaintiff for nominal damages. The action was one of trespass brought by Benajah Todd against Dyer Todd to recover damages for breaking and entering the premises of plaintiff, and doing damage thereon.

Appeal by defendant, Isaac M. Hillman and another, from a judgment directed at the special term. The action was brought by Ebenezer Robertson, executor of the last will and testament of Matthew Hillman, deceased, against Isaac M. Hillman and others, heirs at law, next of kin of the decedent, and devisees and legatees under said will, to obtain a construction of the same. The decedent died seized of a farm and an amount of 'personal property.

Woodford, who was indicted for arson in the first degree in burning certain dwelling-houses in the village of Canastota.

<p>Appeal by plaintiff from a judgment in favor of defendant, entered upon the verdict of a jury, and also from an order denying a motion for a new trial, made upon the minutes of the court.</p> <p>The action was brought by the National Life Insurance Company of the United States of America, against Philip Minch, to recover back money paid by the plaintiff to the defendant, as administrator of his wife, Anna C. Minch, deceased, upon a policy of life insurance upon her life, issued in March, 1869, one hundred and two days before her death, which occurred the 8th of July, 1869. It was claimed by plaintiff that the insurance was effected and the amount insured collected through the false and fraudulent representations of the deceased, the defendant and one Potter, a physician, who "represented that the deceased was in good health and sound at the time the insurance was effected, whereas at that time she was to their knowledge affected with a cancer, which soon after destroyed her life. The leading featuies of the case appear in the report of it on appeal from a former trial, in 53 N. Y. 151.</p> <p>The case and exceptions here presented, contained additional evidence and several rulings of the court in respect to evidence and requests to charge, and exceptions to the charge of the court. The plaintiff asked the court to direct a verdict, which request was refused and the plaintiff excepted.</p>

Appeal by defendant from a judgment in favor of plaintiff entered upon the report of a referee. The action was brought by James T. McCombs against William C. Becker to recover for the alleged conversion of a quantity of hay. Plaintiff claimed title by virtue of a purchase at a sale under an execution against one Lloyd Gr. Burnham. The hay was raised on lands belonging to defendant.

Appeal by plaintiff from a judgment in favor of defendant entered upon the verdict of a jury in the Saratoga county court.. The action was brought in a justices’ court by Samuel J. Taylor against Amos J. Scoville to recover for work, labor and services. The plaintiff recovered a judgment in the justices’ court, from which defendant appealed to the county court, where the cause was retried and a verdict rendered for plaintiff.

Motion by defendant for a new trial on exceptions ordered to be heard in the first instance at general term. Held: that inasmuch as the baggage-master had recognized the ticket as valid, by checking the plaintiff’s baggage, on its production to him at the station, the plaintiff was therefore rightfully on the train, and his expulsion by the conductor, on his refusal to pay fare, was wrongful, and entitled him to recover; and further, that the…

The action was brought by Benjamin Salters, administrator of James V. Salters, against The President, Managers and Company of the Delaware and Hudson Canal Company, to recover for the death of the intestate, caused by an accident upon defendant’s railroad. The intestate was a locomotive- fireman in the employ of defendant, and was killed by the locomotive on which he was employed running off the track. The accident was caused by an open switch.

Appeal by the plaintiff from a judgment directed by the court. The action was brought by Bradley S. Smith, executor of the last will and testament of Granville Rockefeller, against -Clara I. Rockefeller, and others, legatees and devisees under said will, to obtain the construction of the same.

Appeal by defendant from a judgment in favor of plaintiff entered upon the report of a referee. The action was brought by Helen A. Van Kuren against John Saxton to recover the amount of a promissory note; also for services of plaintiff; also for services of plaintiff’s minor son, and also for goods sold and delivered. The answer set up as a counter-claim an indebtedness for board, lodging and washing for plaintiff and her minor children.

Appeal by defendant from a judgment in favor of plaintiff entered upon the report of a referee. The action was brought by Daniel B. Beach against Clarinda Hollister to recover the possession of certain real estate situated in the city of Rochester.

<p>Insurance—Life policy—condition in — death “in consequence of notation of law.”</p> <p>A life insurance policy contained a provision rendering it void if the insured should die “in consequence of his violation of any law.” The insured was killed by H., shortly after having had illicit intercourse with the wife of H. Held, that even if the act of the insured was a violation of the law, he did not die in consequence of it within the meaning of the policy, and the policy was not avoided thereby.</p>

Appeal by plaintiff from a judgment in favor of defendant entered upon the verdict of a jury in the county court of Erie county, and from an order denying a new trial. The action was brought in a justice’s court by Gardner B. Cotton against Frederick Maurer to recover penalties given 'by statute for cattle running at large in the highways. The justice rendered judgment for the defendant and the plaintiff appealed to the county court, where the action was re-tried.

Appeal by plaintiff from a judgment of the Monroe county court reversing a judgment rendered by a justice of the peace. The action was brought by Joel P. Milliner against Charles Lucas, to recover for the price of a quantity of potatoes sold and delivered to the defendant. The plaintiff claimed that the potatoes were his property, and the defendant claimed to have purchased them of one Slocum, who raised them on the plaintiff’s land.

Appeal by plaintiff from an order at the circuit directing a non-suit; from an order at the special term denying a motion to set aside the nonsuit, and from a judgment in favor of defendant entered upon such nonsuit. The action was brought by Frederick P. Wilson against the city of Watertown to recover for personal' injuries received by plaintiff in consequence of a dangerous obstruction on the sidewalk in a street in said city.

Appeal by plaintiff from a judgment in the Jefferson county court affirming a judgment in favor of defendant rendered by a justice of the peace. The action was brought by George 0. Townsend against Robert Bissell and Jane Bissell, his wife, for tearing down and removing a stone wall erected by plaintiff.

Appeal by defendant from an order at the special term denying a new trial, and from a judgment in favor of plaintiff entered upon a verdict. The action was brought by Charles Shields, upon two certificates of deposit which the plaintiff alleged were made by one Morgan Van Waggoner in the defendant’s bank, a corporation duly chartered by the legislature of the State, and doing business at Lock-port.

Appeal by defendant from a judgment in favor of plaintiff entered upon the verdict of a jury, and from an order denying a new trial. The action was brought by William Rich against the Niagara County Savings Bank to recover for moneys alleged to have been deposited by plaintiff in said bank.

Motion by defendants for a new trial after a verdict in favor of plaintiffs, on exceptions ordered to be heard at the general term in the first instance. The action was brought by Lyman H. Bryan and others against Henry.

Motion by plaintiff for a new trial after a nonsuit at the circuit, upon a case and exceptions ordered to be heard in the first instance at the general term. The action was one of ejectment brought by John Heermans as trustee of Joseph Fellows, against Almon Robertson and Thomas Creech, to recover the possession of certain premises ■ claimed to belong to the estate of said Fellows.

Appeal by plaintiff from a judgment in favor of defendant, entered upon the verdict of a jury. The action was brought by John Heermans as trustee of the estate of Joseph Fellows, to recover an alleged balance of account for moneys loaned by said Fellows to defendant.

Certiorari upon, the relation of George W. Cuyler and others, to review proceedings of the respondents, the trustees of the village of Palmyra, to levy a tax. It was claimed that the proceedings were illegal, not being in conformity to the various statutes relating to the village. Laws of 1861, chap. 144; 1866, chap. 258. Enough facts appear in the opinion.

Appeal by plaintiff from an order at the special term denying a motion for a new trial. The. action was brought by Ephraim E. Curtiss against John Ayrault for the wrongful diversion of the water of the stream called Indian creek from plaintiff’s premises. It was commenced in a justices’ court and removed into this court upon a plea of title being interposed before the justice.

Appeal by plaintiff from a judgment rendered in the Chautauqua county court in an action tried by the court without a jury. The action was brought by Albert B. Sheldon against John L. Parker, to recover the amount of a promissory note. It was commenced in a justice’s court, where a judgment was rendered in favor of the plaintiff for §92 damages and costs, from which an appeal was taken to the county court. The note was given for $87, dated.

Motion by plaintiff for a new trial upon a case and exceptions ordered to be heard in the first instance at the general term after a nonsuit at the circuit. The action was brought by Isaiah Emmons and another, against Sylvester A. Wheeler, and others, upon a bond given by the defendants on the release from a warrant of attachment of a canal boat, under the provisions of chapter 483 of the Laws of 1863, providing for the collection of demands against ships and vessels.

<p>Insurance — Mre policy—condition as to occupation—Occupation—what is.</p> <p>A policy of insurance against fire upon a dwelling-house contained a provision that if the house should be " left Unoccupied without giving immediate notice to the company the policy shall cease and be of no force or effect.” Held, that the absence of the one who resided in the house, without notice to the company, for six weeks, although he frequently returned and looked after the house and the property therein, would avoid the policy.</p> <p>Occupation of a dwelling-house is living in it, not mere supervision over it, and while a person need not live in it every moment there must not be a cessation of occupancy for any considerable portion of time.</p>

Appeal by plaintiff from a judgment in favor of defendant entered upon the report of a referee. The action was brought by the village of Fulton against Jenette K. P. Tucker to recover of defendant the amount the plaintiff (an incorporated village) had been compelled to pay upon a judgment recovered against it by one Mary Oarr, for injuries received by her in consequence of a defective sidewalk in a street of said village, and in front of defendant’s premises.

<p>Water-course—rights of riparian owner—Statutory construction — Laws of 1873, chapter 378.</p> <p>The only rights vested in the owner of lands through which a stream flows, are those of a riparian owner, and a statute which declared a stream a public highway, and provided for the compensation of riparian owners (Laws of 1873, chap. 378), held, to embrace the owners of the stream by a grant thereof from the former riparian owners.</p>

<p>Appeal by defendant from a judgment in favor of plaintiff entered upon a verdict directed by the court.</p> <p>. The action was brought by William Jamison against Peter Cornell to recover a small piece of land used as a stone quarry. The lands in question were situated on the east side of a small stream which was the western boundary of plaintiff’s lands. The lands west of plaintiff’s had been in possession of various parties under a contract of sale from the original owner. In 1871, Elias Cornell, who was then in possession, sold defendant, by parol agreement, a small piece of land opposite the place where the stone quarry was qpened, upon the eastern part of the lands occupied by Cornell. The lands were wild and had never been cleared, cultivated or fenced.</p> <p>It was claimed on the part of the defendant that the lands of defendant had been surveyed in 1841, and a line along the general course of the stream, but crossing it several times, established, which excluded from plaintiff’s lot, the locus in quo, and that plaintiff and the occupant of the lands to the west of him. were present and participated in the survey, and acquiesced in the line and in its location on a map made by the surveyor.</p> <p>Such other facts as are material appear in the opinion.</p>

Appeal by defendant from a judgment in favor of plaintiff for nominal damages entered upon a verdict directed by the court. The action was brought by 0alista E. Jones against Peter D. Carroll for trespass in breaking and entering plaintiff’s premises and removing fence therefrom. The answer was a general denial and title in the defendant. The facts were these : Teal Rector was the owner of certain premises situate in Yates county at the time of his death in March, 1859.

Appeal by defendant from a judgment of the Onondaga county court affirming a judgment of a justice of the peace in favor of plaintiff. The action was brought by Florence Michael against Benjamin Stanton to recover for injuries to plaintiff’s wagon, caused by a collision on the highway with a wagon in charge of one Hinckley, who was driving the horses attached to'the same. It was claimed by plaintiff that Hinckley was in the employ of defendant.

Motion by defendant for a new trial after a verdict directed in favor of plaintiff, at the circuit. The action was in the nature of a writ of quo warranto, brought by the people upon the relation of Edward A. Frost, and Edward A. Frost against John H. Wilson, to oust the defendant from the .office of clerk of Monroe county, and declare the plaintiff and relator Frost elected thereto.

Appeal by defendant from a judgment in favor of plaintiff, entered upon the verdict of. a jury. The action was brought by George M. Shader, administrator, etc., of Wesley E. Shader, deceased, against the Railway Passengers Assurance Company, of Hartford, Connecticut, upon an accident insurance policy issued by defendant upon the life of the intestate. Sufficient facts appear in the opinion.

Appeal by Fanny Kyle, widow and only child of David Kyle, deceased, and another, from a decree of the surrogate of Cayuga county, allowing Certain claims against the estate of the deceased; one presented by the respondent George A. Kyle, executor, etc., under the last will of said deceased, the respondent, and the other by the mother of deceased.

<p>Appeal by defendant from an order at the special term, denying a motion for a new trial after a verdict in favor of plaintiff.</p> <p>The action was brought to recover damages sustained by plaintiff from injuries to its road-bed, caused by a flood in Mead’s creek in the county of Steuben, in 1864 and 1865. It was alleged in the complaint that defendant built a bridge over Mead’s creek, and made an embankment on each side of the creek, so as in times of floods to obstruct the flow of water, and turn it upon the plaintiff’s road. It was averred that “the embankment was wrongly and unskillfully constructed and no passage-way or culvert was left or provided for the water to pass through where it has been wont to flow in times of high water.” The case upon appeal from a judgment on a former trial has been to the Oourt of Appeals. The general term decision upon the former appeal is reported, 52 Barb. 390, and that of the Commission of Appeals, 51 N. Y. 573. Very full statements of facts appear in the reports mentioned. Sufficient facts are given above and in the opinion in respect to the questions here passed upon.</p>

<p>Executor—decree on final accounting — Surrogates decree — what sufficient to sustain aetion wgon.</p> <p>A. decree by a surrogate of final settlement upon the accounting of an executor determines nothing beyond the amount received and paid out by the executor, and the balance due from him to, or to him from, the estate. But 2 R. S. 95, § 71, requires a second adjudication by the surrogate, settling the rights of legatees to a share of the fund in the hands of the executor, and the amount to which each is entitled; and an aetion will lie by each creditor to recover the sum adjudged to him by the decree.</p> <p>Where, however, a decree for final settlement alone was made, and the amounts of the sums due legatees was not determined, held, that it was not a decree upon which a legatee could maintain an action for his legacy against the executor.</p>

Appeal by defendant from a judgment in favor of plaintiff, entered in an action tried by the court. . The action was brought by the Oayuaga Lake Railroad Company against George A. Kyle, to recover the amount due upon a subscription for ten shares of stock of the plaintiff. The facts fully appear in the opinion delivered at special term given below, which was adopted at the general term.

Appeal by defendant from a judgment of the Monroe county court, affirming a judgment in favor of plaintiff, rendered by a justice of the peace. The action was brought by Edward Ryan against William H. Lewis, to recover for damages to plaintiff’s wagon, caused by a collision with defendant’s wagon on the highway. The facts sufficiently appear in the opinion;

Motioh by plaintiffs for a new trial upon a case and exceptions ordered to be heard in the first instance at the general term, after a nonsuit at the circuit.

Appeal by plaintiff from a judgment in favor of defendants, entered upon the report of a referee. The action was brought by Thomas M. Tyng against Peter Fields and another, to recover moneys of plaintiffs paid and received by defendants, and also for a breach of contract to repair two locomotives owned by plaintiff. Defendants denied the averments of the complaint, and set up a counter-claim for work and materials furnished in repairing engines, of $8,000.

<p>Error to the New York Oyer and Terminer to review the conviction of Hugh Gardner and Oliver Oharlick.</p>

Appeal by defendants from a judgment in favor of plaintiffs entered upon the report of a referee. The action was brought by Jedediah H. Lathrop and others against Moses H. Bramhall and others to recover the balance due from defendants to plaintiffs upon a sale of stock.

Appeals by defendant, Bernard Sheridan, from orders at the special term denying motions to set aside judgments. The judgments, two in number, were recovered, one by Thomas Bryson and another, and the other by Thomas Bryson against the defendant in actions to set aside a deed and mortgage.

Appeal by defendant from an order at special term refusing to set aside an inquest. The action was brought by German Smith against E. P. Belden and another.

Appeal by plaintiff from a judgment in favor of defendant in. an action tried by the court without a jury. The action was brought in Schuyler county by the trustees of the village of Havana and Charles Cook against the board of supervisors of Schuyler county to restrain the defendant from proceeding under Laws 1867, chapter 768, to change the county seat of Schuyler county from said village to the village of Watkins, and other relief.

Appeal by Mary Turner, sister and heir at.law of William Cooper, deceased, from a decree of the surrogate of Erie county, allowing a claim of Betsey Cooper, mother of deceased, against his estate for services, moneys had and received, and rent.