Volume 50 — New York Reports

The action was brought to recover moneys alleged to have been paid defendant upon a purchase of certain stock of the Mahony Coal Company, which purchase was induced by fraudulent representations upon the part of defendant.

Plaintiff, as the widow of Oscar B. Brackett, claims dower in certain lands situated in Clay, Onondaga county, purchased by him of Cyril ¡N. Brackett on the 9th of ¡November, 1835. He took a conveyance of the lands on that day, and at the same time gave back a bond and mortgage on the premises for the purchase-money or a part thereof. This was during the coverture.

This is an action of ejectment to recover possession of a lot of ground at the corner of Bedford and De Kalb avenues, in the city of Brooklyn. Defendant claims as tenant of Matilda Steinworth, Theodore Steinworth, Charles Steinworth, Frederick Steinworth and Caroline Steinworth. This lot is part of four lots of ground which belonged to the Steinworths in 1847. In 1847 the city of Brooklyn instituted proceedings to open De Kalb avenue and close De Kalb street.

The action was brought to recover the amount of two promissory notes executed hy plaintiff. The substance of the counter-claim is set forth in the opinion. The grounds of the demurrer were, that the matters set up in the answer constituted tort, that it alleged that plaintiff acted in a fiduciary capacity, and that the claim is for unliquidated damages. The alleged counterclaim sets up a tort.

<p>Where, in an action upon a promissory note, the answer alleges facts sufficient to constitute a defence of want of consideration, or a recoupment of damages, it is not necessary for defendant to state which he will rely upon; and if he so states, he will not be precluded from insisting upon any defence which the facts alleged will justify. It is the facts alleged which constitute the defence, and whether or not it is called by the right name is immaterial.</p> <p>When a principal and surety are sued together, a successful recoupment by the former will inure to the benefit of the latter, although the surety could not, if sued alone, avail himself of the defence.</p>

This action was brought against the defendant, as common carrier, for the conversion of a quantity of butter shipped by plaintiffs at Yew York to Georgetown. The defence was that the butter had been delivered to one George E. Smith, a consignee of plaintiffs, under a letter which, it was claimed, gave him an apparent right to receive it. The butter was shipped on the 20th February, 1869; there was no bill of lading given.

(Reported below, 58 Barb., 524.) This action was brought to recover damages for an alleged breach of duty, upon the part of defendants, as plaintiffs’ agent. The plaintiffs are copartners, carrying on business in the city of Hew York under the firm, name of Heinemann & Payson.

The action was brought upon a contract between the parties for the sale of certain premises situate in the city of Hew York, plaintiff claiming the right to disaffirm the contract, and. asking to recover back a ■ payment made thereon and expenses incurred, on the ground that defendants could not make a good title to the premises.

<p>In a survey which was referred to and made a part of a policy of fire insurance upon a paper mill, this inquiry was made, 1 ‘ Watchman: Is one kept in the mill or on the premises during the night and at all times when the mill is not in operation, or when the workmen are not present?” Answer: “Yes.” On the day previous to the destruction of the property by fire, the personal property in the mill was levied upon by the sheriff, by virtue of an execution against the assured. The sheriff excluded the employes from the mill, took the keys and locked up the building. The deputy sheriff and one of the trustees of the assured remained in the office of the mill, about two rods from it, during the night, up to the time of the discovery of the fire, which occurred about 4 A. m., but they did not keep watch. In an action upon the policy,— Held, that the question and answer in the survey constituted a warranty, that the levy did not excuse from the obligation to perform it; that the deputy sheriff and trustee were not to be regarded as watchmen within the meaning of the policy, and that there being a breach of the warranty, plaintiff was properly nonsuited.</p>

Plaintiff was appointed receiver of the property of one Henry Bouge, in proceedings supplementary to execution. As such receiver he brought this action to recover various sums alleged to have been paid in excess of legal interest upon various usurious loans from defendant to said Bouge. The complaint contained eleven counts.

This action was brought to recover for an injury to plaintiff while a passenger upon one of defendant’s ferry-boats. Plaintiff resided at Hoboken and was engaged in business in Hew York. On the 9th April, 1864, as defendant’s ferry-boat landed at Hew York, plaintiff, with others, went on to the boat. He was met by the outgoing passengers and was crowded upon the string-piece separating the passage way from the carriage way.

The parties to the appeal are Catharine M. Burchard, respondent, and Alfred L. Griffin, appellant, who are contesting claimants to the surplus.

The action was brought upon a promissory note made by Scndder & Redfield, dated May 15,1867, payable to the order of James E. Brown, and before delivery to Brown, indorsed by Solomon Bennet, defendant’s testator. Before the note fell due Brown transferred the note to • one Hiñe, and Hine transferred it to plaintiff absolutely, without condition, before due, for value paid at the time in money.

This action was brought against defendant as a' common carrier for an alleged refusal to deliver 500 empty pork barrels received from plaintiff at Buffalo, under an agreement to transport to and deliver to plaintiff at New York. In November, 1866, plaintiff’s agent purchased at Buffalo, 500 empty pork barrels.

■ The first action was brought upon a Wisconsin judgment, and an attachment was issued thereon against defendant as a non-resident. He formerly resided in this State and owned a house and lot in Hew York city. This he sold, receiving a bond and mortgage thereon for a portion of the purchase-price. These he assigned to one Peter Cook, who, on the same day, assigned them to Sophia Blanck, defendant’s wife, and immediately thereafter defendant and wife left the State.

<p>Appeal from order of the General Term of the Supreme Court in the second judicial department, affirming a decree of the surrogate of the county of New York, admitting to probate the will of Frederick Diez.</p> <p>The testator was a naturalized citizen of this State, domiciled in the city of New York. In May, 1868, he went to Germany and died at Sonthofen, Bavaria, November 1, 1868. Previous to his death the following instrument was executed:</p> <p>“Matrimonial and also Testamentary Agreement.</p> <p>“ G. 3L N., 898.—This day, Sunday, November 1st, 1868 (one thousand eight hundred and sixty-eight), at eleven a. m., appeared before me Francis Xaver Malor, royal notary at Sonthofen, in the house No. 80 at Sonthofen, whither I went at once, according to the request of the parties.</p> <p>“ 1. The hotel proprietor, Mr. Frederick Diez, from New York, in the United States of America, at present being in Sonthofen, who, although lying in bed in an upper room in the above named house, suffering from a complaint in the stomach, and very weak, is in full possession of his mental faculties, and therefore must be deemed fully competent to make dispositions, whereof 'I have convinced myself by conversation with him.</p> <p>“ 2. His wife, Mrs. Ursula Diez, born Trunk, of the same place; lastly:</p> <p>3. The two impartial witnesses, whose presence had been especially requested, and who, after examination, have been found free of all exceptions:</p> <p>“ (a.) The practicing physician, Dr. Leonard Stich, of Son thofen, and</p> <p>“ (5.) The merchant, Mr. Max Mathes, of Sonthofen; both of the latter I am personally acquainted with as to name, occupation and residence, while the name, occupation and residence of the former two persons were only made known to me by the two witnesses present, and Mr. Frederick Diez and his wife, Mrs. Ursula Diez, requested me to reduce to-writing and certify in my official capacity the following:</p> <p>“Matrimonial and also Testamentary Agreement.*</p> <p>“‘I. We have made, as yet, no conjoint disposition of any kind concerning, the hereditary succession in case of death.</p> <p>“ ‘ II. Inasmuch as we have, by joint exertions, acquired the property now in our possession, and inasmuch as the offspring of our marriage, bur only child, Mary Diez, has already in the tenderest age departed this life, we hereby determine that upon the decease of one or the other of us, the surviving husband or wife shall receive the entire property of the one having died first, that is to say, the existing jointly acquired property, to his or her, unconditionally, free, sole possession and sole ownership, and shall not be bound to pay over anything to any person in case of a'death.</p> <p>“ ‘ III. Also all former dispositions concerning the hereditary succession which may have been made by us singly, or with the consent of both, however and wherever made, between the living, or for the case of death, are hereby set aside and declared null and void.</p> <p>“ ‘ IY. We desire that a first exemplified copy of the foregoing matrimonial and also testamentary agreement be delivered to us, and we will bear—</p> <p>“£ Y. The expenses incurred jointly.</p> <p>££ ‘ Hereupon the present instrument was drawn up by special request of the parties, and after it had been read to them in the presence of the two above-named witnesses, and after their attention had been called to all such legal relations as might possibly stand in the way of such a contract, and after being approved by them, it was ratified to the full contents of it, and signed by them, by the two witnesses, and by myself, the undersigned royal notary.</p> <p>££ Mark of Mr. Frederick Diez,' who is unable to write on account of great weakness, where- [ M fore the two witnesses have subscribed for him.</p> <p>“URSULA DIEZ.</p> <p>“L. STICH,</p> <p> Physician. </p> <p>“ MAX MATHES.</p> <p>“ FRANZ XAYER MALOR,</p> <p>[l. s.]. Royal Notary.”</p> <p>In 1869 proceedings were instituted in the Supreme Court under the provisions of chap. 384, Laws of 1840, to prove an exemplified copy of this will (the original being then in the possession of the notary of Sonthofen, who drew it). An order was made therein, adjudging “that the instrument so offered for probate is not the last will and testament of Frederick Diez, sufficient at law to pass either real or personal property,” and denying the application. The decision was made upon the ground that possession by a notary was not possession by a court or tribunal of justice, and that the case was not brought within the provision of the statute. The original was subsequently procured and presented for probate to the surrogate of New York by Ursula Diez, widow of the deceased. Probate was contested by Christian Supp, a residuary legatee under a former will. A commission was issued by the surrogate with the will annexed and returned with the depositions of the two witnesses, and also of the notary who drew the will, and upon these depositions, with other testimony, the instrument was admitted to probate. The General Term of the first department sent the case to the second department.</p> <p>A joint or mutual will is unknown to the testamentary laws of England. (Clayton v. Livermore, 2 D. & B., 558; Jarman on Wills, 26; Hobson v. Blackburn, 1 Addams’ Eccl. R., 274; and is also unknown to the testamentary laws of this State; Williams on Exrs., 9, 10; 1 Cowp., 268.)</p> <p>The paper propounded for probate is a good and valid will. (1 Jarman on Wills, 13; Green v. Proude, 1 Mod., 117; K. B., 16, 74; Ex parte Day, 1 Brad., 484; Passmore v. Passmore, 1 Phill., 218; Masterman v. Maberly, 2 Hagg., 235; Dufour v. Pereira, 1 Dickens, 419; Walpole v. Orford, 3 Vesey, Jr., 416; 2 Har. Jur. Ar., 304; Hinckley, v. Simmons, 4 Vesey, Jr., 160; Hobson v. Blackburn, 1 Addams, 274; In re Stracy, 1 Deane & S., 6; In re Raine, 1 S. & T., 144; In re Lovegrove, 2 id., 453; Rogers, app'ts, 2 Fairf., 303; Clayton v. Livermore, 2 D. & B., 558; Bynum v. Bynum, 11 Ired., 632; Ex parte McCormick, 2 Brad., 169; Lewis v. Scofield, 26 Conn., 452; Evans v. Smith, 28 Ga., 98; Walker v. Walker, 14 Critch., 157; 1 Jar. on Wills, 13; 1 Redf. on Wills, 182; Dayton on Sur., 45; Puchta’s Pandekten, 652, § 481.) A will is not required to be under, seal. (1 Jar. on Wills, 70; note Willard on Real Estate, 636.)</p>

The plaintiff in this action is a national bank organized under the act of congress of June 3, 1864. The action was upon a promissory note against the makers and indorsers. The defense set up was usury, in corruptly taking more than seven per cent per annum for the loan of the money for which the note was given. The judge at circuit held that the State laws against usury did not apply to national banks, and this was affirmed at General Term.

On the 4th day of August, 1868, the defendant, Herman Schulting, was the owner of a stock of goods, and on that day sold the same to the firm of H. & A. Stursberg & Co. for the sum of $225,000. At the same time it was verbally agreed between them that Schulting should have one-third of the profits which might be realized from the sale thereof, after deducting therefrom the sum of $275,000.

This action was brought against defendant, as a common carrier, to recover damages for the loss of a quantity of cutlery destroyed by fire, upon defendant’s wharf, in the city of Rew York. The facts sufficiently appear in the opinion. At the close of the evidence the court directed a verdict for defendant.

Term; also appeal from order of said General Term, affirming an order of Special Term continuing the action in the name of the present plaintiff. This action was brought originally in the name of John Orser, late sheriff of the city and county of Hew York, to determine the rights of several attaching creditors as hereinafter specified.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming a judgment in favor of plaintiff entered upon a verdict; also affirming an order denying a motion for a new trial. (Reported below, 57 Barb., 504, and 59 id., 434.)</p> <p>This action was brought against the defendants, as trustees of the “ Gutta Percha Manufacturing Company,” a corporation organized under the act to authorize the formation of corporations for manufacturing and other purposes (chapter 40, Laws of 1848), as amended, seeking to make them liable for a debt against the company under the provisions of section 12 of said act, because they had failed to make and file the annual report required by that section. The complaint set forth the recovery of a judgment against the company for $24,734.62; that execution was returned unsatisfied, and that said judgment’is unpaid and in full force. Upon the trial, and before the taking of any testimony, defendants’ counsel moved for a dismissal of the complaint upon the ground that it did not set forth any original cause of action against the company. This motion, was denied and the ruling excepted to. The judgment roll was offered in evidence and received under" exception. The court held the judgment conclusive against the defendants, and directed a verdict for the amount thereof, which was rendered accordingly.</p> <p>The original indebtedness should have been averred and set forth in complaint, and the judgment is no evidence against defendants. (Strong v. Wheaton, 38 Barb. 617; Moss v. McCulloch, 5 Hill, 131; Witherhead v. Allen, 3 Keyes, 562; McHarg v. Eastman, 4 Robt., 636; S. C., 7 Robt., 137; Belmont v. Coleman, 21 N. Y., 96.) And the objection is properly made at the trial. (Coffin v. Reynolds, 37 N. Y., 640.)</p> <p>If there were technical defects in complaint, it was proper practice to receive the proofs, and if no case was made, to nonsuit. (Lounsbury v. Purdy, 18 N. Y., 520; Pratt v. H. R. R. Co., 21 N. Y., 313, 314; Code, § 173; Miller v. White, 8 Abb. Pr., 46.) A judgment against a corporation is conclusive evidence of a debt of the corporation in an action against a stockholder, unless impeached for fraud. (Slee v. Bloom, 20 Johns., 669 ; Moss v. Oakley, 2 Hill, 265; Moss v. McCulloch, 7 Barb., 279; Andrews v. Murray, 9 Abb. Pr., 8, 14; Peckham v. Smith, 9 How. Pr., 436 ; Belmont v. Coleman, 1 Bosw., 188; Squires v. Brown, 22 How. Pr., 35, 39, opinion of the court per Woodruff; Conklin v. Furman, 8 Abb., 161, N. S.; Nimmons v. Tappan, 2 Sweeney, 652; Hovey v. Ten Broeck, 3 Robt., 319; Dayton v. Borst, 7 Bosw., 115, 117, 119; Hoagland v. Bell, 36 Barb., 57; Lewis v. Ryder, 13 Abb., 5; Miller v. White, 8 Abb., N. S., 46; Gaskill v. Dudley, 6 Metc., 546, per Shaw, Ch. J.; Holyoke Bank v. Goodman Paper Manufacturing Co., 9 Cush., 576 ; Farnum v. Ballard Vale Machine Shop, 12 Cush., 507, per Shaw, Ch. J.,; Marcy v. Clark, 17 Mass., 330, 335; Utley v. Union Tool Co., 11 Gray, 140; Dauchy v. Brown, 24 Vt, 209; Doworth v. Coalbaugh, 5 Iowa, 300; Hampson v. Weare, 4 Iowa, 13; Corse v. Sanford, 14 Iowa, 235; Chaffin v. Cummings, 37 Me., 77, per Shepley, Ch. J.; Carne v. Bingham, 39 id., 35; Millekin v. Whitehouse, 49 id., 527; Merril v. Suffolk Bank, 31 id., 57, 60; Cross v. Law, 6 M. & W., 217; Bank of A. v. Nias, 4 Eng. L. & Eq., 252.) A judgment is in itself a debt. (Jacobs’ Law Dic., title “ Debt;" Chitty on Pr., 108, 109; Sayre v. Austin, 3 Wend., 496.) The judgment being conclusive, the allegation was sufficient. (Peckham v. Smith, 9 How., 436 ; 21 N. Y., 101.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of plaintiff entered upon the report of a referee.</p> <p>The nature of the action and the facts are set forth sufficiently in the opinion.</p> <p>A partial performance of an indivisible contract does not extinguish a corresponding proportion thereof, unless the benefit of such performance is voluntarily retained by the creditor. (Civil Code, § 629; Sedgwick on Damages, 212, 215, 216, 222, note 1, 221; Ladue v. Seymour, 24 Wend., 60.; Moffet v. Sackett, 18 N. Y., 527; Davis v. Talcott, 12 id., 188 ; S. C., 14 Barb., 611; Clark v. Marsiglia, 1 Den., 317; Dillon v. Anderson, 43 N. Y., 232; Masterton v. City of Brooklyn, 7 Hill, 71; Durkee v. Mott, 8 Barb., 423.) The work being affixed to real property, the use and occupation of it by the owner does not amount to a voluntary retention. (Smith v Brady, 17 N. Y., 173.) Contracts are to be enforced as the parties made them. (Brown v Curtis, 2 N. Y., 227; Pike v. Butler, 4 id., 362; Pullman v. Corning, 9 id., 97; Smith v. Brady, 17 id., 173; Cunningham v. Jones, 20 id., 486; Bonesteel v. Mayor, etc., 22 id., 167; Tompkins v. Dudley, 25 id., 272 ; Walker v. Millard, 29 id., 379; Brown v. Weber, 38 id., 188; Roberts v. Opdyke, 40 id., 264; Ely v. Spofford, Court of Appeals [Transcript, Jan. 21, 1870] ; Jackson v. Topping, 1 Wend., 396; Bird v. Smith, 12 Q. B., 781.) Waiver, as applied to contracts, is in fact a new contract. (Ripley v. Ætna Ins. Co., 30 N. Y., 136; Gardiner v. Clark, 21 id., 404; Cromwell v. Haight, id., 462.) The intention to waive must be clear. (Roberts v. Opdyke, 40 N. Y., 264; Pike v. Butler, 4 id., 360.) Plaintiffs have failed to complete their contract, and the judgment should be reversed. (Griffen v. Marquardt, 17 N. Y., 28; Edmonston v. McLoud, 16 id., 544.)</p> <p>A substantial performance of a building contract' is all the law requires. (Smith v. Gugerty, 4 ,Barb., 614; Smith v. Brady, 17 N. Y. 173; Sinclair v. Talmadge, 35 Barb., 602; Colwell v. Lawrence, 24 How. Pr. R., 324; Thomas v. Fleury, 26 N. Y., 32.) Defendant assented to the work as it was being performed, and so accepted it. (Watson v. Gray, 41 N. Y., 385; Colwell v. Lawrence, 24 How. Pr. R., 324; Pike v. Nash, 38 N. Y., 335; Smith v. Brady, 17 id., 173; Sinclair v. Talmadge, 35 Barb., 602.) Defendant, by allowing plaintiffs to go on after the time limited, waived the forfeiture she might have claimed. (Cox v. Bennett, 1 Greene, 165; Sinclair v. Talmadge, 35 Barb., 602; Watson v. Gray, 41 N. Y., 385; Colwell v. Lawrence, 24 How. Pr. R., 324; Smith v. Brady, 17 N. Y., 173.) The architect’s certificate bound the parties. (Butler v. Tucker, 24 Wend., 447; Sinclair v. Talmadge, 35 Barb., 602; Smith v. Brady, supra; Oakes v. Moore, 11 Shep., 214; Wyckoff v. Meyers, 44 N. Y., 143.)</p>

(Reported below, 58 Barb., 195.) The action is brought to recover damages alleged to have been sustained by the plaintiffs, through the negligence of defendant, in not caring for and protecting from rain a lot of sheet iron consigned to plaintiffs, which had been brought from Baltimore in the steamer Carrol, belonging to the defendant.

, payable to the order of the plaintiff, dated October 31st, 1868, at four months. Balch & Co. were indebted to the defendants, and the defendants drew the draft and delivered it to the defendants on account of such indebtedness, and for the purpose of enabling the defendants to have it discounted for their ownben.efit.

Partition is sought in this action of four lots of land in the city of Brooklyn.

<p>Appeal from the judgment of the General Term of the New York Common Pleas, affirming as modified, in case plaintiff stipulate to modify, a judgment in favor of plaintiff, entered upon a verdict.</p> <p>The action was brought against defendants as members of the firm of Brander, Chambliss & Co., upon three drafts drawn upon and accepted by that firm, one dated April 13, 1861, for $8,050.60, one dated February 26, 1862, for $1,169.99, and one dated February 26, 1862, for $107.97; also a note signed by the firm, dated January 2, 1862, for $864.25. The defendant Matthews resided in Mew York, the others in Mew Orleans.</p> <p>An agreement was made in Mew Orleans, on the 27th March, 1861, before a notary public, for the formation of a copartnership in conimendam,, signed by Brander, Jr., Chambliss & Matthews.</p> <p>It was provided in the agreement that James S. Brander, Sr., the father of James S. Brander, Jr., should be a special partner. Mr. Brander, Sr., was then absent from Mew Orleans, and in the Island of Massau. The agreement concluded with these words: “ And it is further agreed and understood that a copy of this act shall be immediately transmitted to said James S. Brander, Sr., for his approval; and that in case of his refusal, the present contract shall become null and void.”</p> <p>A copy of this article was received by Brander, Sr., at Massau, and he refused to approve of it.</p> <p>Matthews remained in Mew Orleans, taking an active part in the management of the business, until about April 27, 1861.</p> <p>Upon the trial the court directed a verdict for the plaintiff upon all the causes of action. The General Term decided that the judgment be reversed, unless plaintiff should stipulate to reduce the judgment by deducting the amount of the last two acceptances, and the note and interest, and if he should so stipulate that it be affirmed. The plaintiff stipulated aS required, and the judgment was affirmed as modified.</p> <p>That the effect of the war of the rebellion was to dissolve copartnerships between citizens of the north and south, is now well settled. (The Prize Cases, 2 Black, 635; The William Bagaley, 5 Wallace, 507; Woods v. Wilder, 43 N. Y., 164; The Bank of New Orleans v. Matthews, Ct. App. March, 1872; Griswold v. Waddington, 15 John., 57; 16 id., 438.) The war began April 13, 1861, the date of the attack upon Fort Sumter. A proclamation was not necessary to make it a legal war. (Swinerton v. Col. Ins. Co., 37 N. Y.; The Prize Cases, 2 Black, 635; In re Grossmayer, 9 Wall., 74; Hanger v. Abbott, 6 id., 635; The Protector, 12 id., 700 ; The Venice, 2 id., 274; Mrs. Alexander's Cotton, 2 id., 404; The Wm. Bagaley, 5 id., 407 ; Hanger v. Abbott, 6 id., 535 ; Allen v. Russel, 12 Am. Law Reg., 361; Billgery v. Branch, 17 id., 334.) Defendant is not estopped from setting up the dissolution of the partnership, by his acts after April 13, 1861. (Coppell v. Hall, 7 Wall., 558.) To constitute an estoppel it must be affirmatively shown that defendant waived the objection. (Lawson v. Brown, 1 Selden, 394; Irwin v. Concklin, 36 Barb., 60, and cases; Jewett v. Miller, 10 N. Y., 402.) This action was commenced during the war by an enemy; he could not maintain an action, (Sanderson v. Morgan, 39 N. Y., 231.)</p>

<p>The provisions of the Code regulating the formal proceedings in an action do not, simply because they are statutory regulations, necessarily become of the substance of the remedy or substantial in their character. (Per Allen, J.; Church, Ch. J., Pbokham, J., concurring.)</p> <p>An order denying motion to set aside a summons and complaint upon the ground that the notice inserted in the summons is not under the right, subdivision of section 129 of the Code, where the complaint was served with the summons, does not affect a substantial right, and is not appealable to this court. (Gboveb and Folgeb, JJ., dissenting.)</p> <p>An action to recover a statute penalty is not an action upon a contract within the meaning of section 129 of the Code, and the summons in such an action should be in the form prescribed by the second subdivision of that section.</p>

The action was brought to obtain a limited divorce, with suitable maintenance, on the ground of abandonment by the defendant, and his neglect and refusal to furnish her support.

The action was brought to recover damages for injuries sustained by a horse of plaintiff’s, occasioned by an alleged defect in defendant’s track. Defendant owns and operates a railroad running through and over Houston street in the city of Hew York. On the 12th of April, 1864, plaintiff was driving a pair of horses belonging to him over the track, one horse stepped into a hole, was thrown down and injured, and in consequence died.

<p>The owners of property adjoining a street in the city of New York, laid out under the act of 1813, have an easement in the street, in common with the whole people, to pass and repass, and also to have free access to their premises; but the mere inconvenience of such access occasioned by the lawful use of the street by a railroad is not the subject of an action.</p> <p>Plaintiff's complaint alleged that defendant laid its track so near the sidewalk, in front of his premises, as not to leave sufficient space for a vehicle to stand, and that he and his family are thereby incommoded in leaving and returning to their residence, and the rental value of his premises is greatly depreciated. On demurrer,—Held, the complaint did not contain a cause of action.</p>

(Reported below, 58 Barb., 599.) The action was brought against defendant as common carrier to recover the value of three bales of hags shipped by plaintiff at Syracuse, consigned to S. H. Wilson & Co., Oswego. The facts are stated sufficiently in the opinion. Defendant was guilty of negligence in delivering the goods to an unknown person without requiring the customary evidence of his identity.

(Reported below, 3 Lans., 141.) This action was brought by the plaintiff to compel the defendants, heirs of John Roberts, to execute a conveyance to him of a certain farm in the town of Reading, in Schuyler county, which Lewis Roberts, one of the executors of the last will and testament of said John Roberts, agreed and undertook to convey to the plaintiff. The facts sufficiently appear in the opinion.

The action was to vacate and set aside an award. The case is reported below, 53 Barb., 342. The facts pertinent to the questions here discussed are sufficiently set forth in the opinion. An award, to be valid, must be certain and final. (Kyd on Awards, 124, 128, 194, 196, 197; Caldwell on Arb., 243; Schuyler v. Vanderwater, 2 Caines, 235; Pope v. Brett, 2 Saund., 292; Bedan v. Clarkson, 1 Ld.

<p>Appeal from order of the General Term of the Supreme Court in the fourth judicial department, reversing a judgment in favor of defendant, entered upon the report of a referee. (Reported below, 41 How. Pr., 435 ; 5 Lans., 16.)</p> <p>This action was brought to recover damages for injuries sustained by plaintiff by falling through a defective crosswalk in one of defendant’s streets.</p> <p>It appeared that the crosswalk in question was built under the direction of the common council of the city; that it was at the time plaintiff was injured out of repair and in a dangerous condition, and had been so for a long time, and plainly to be seen. In passing over it in the night-time plaintiff fell through a hole in it and was seriously injured. The provisions of the charter of defendant and of the various amendments thereto, upon which its liability depended, are set forth in the opinion. The referee found that the common council of the city, under its charter, had discretionary power to direct by ordinance the crosswalks to be repaired, and to assess the expenses upon the property benefited, but could not repair otherwise, and that for the failure to exercise this discretionary power the city was no.t liable, and directed dismissal of complaint with costs. Judgment was entered accordingly.</p> <p>Plaintiff has by law discretionary powers relative to the making and repair of sidewalks, and in case of failure to repair, it can incur no liability for private damage therefor. (Laws 1867, chap. 824, § 1; Laws 1866, chap. 542, pp. 1162, 1163, 1164, §§ 1, 3, 5; Laws 1865, chap. 365; Laws 1868, chap. 809; Cole v. Trustees of Medina, 27 Barb., 218, General Term, 8th dist., 1858: Peck v. The Village of Batavia, 32 id., 634, General Term, 8th dist., 1860; Hart et al. v. The City of Brooklyn, 36 id., 226, General Term, 2d dist., 1862; Herrington v. Village of Corning, 51 id., 396; Mills et al. v. City of Brooklyn, 32 N. Y., 496-498; Wilson v. The Mayor, etc., of N. Y., 1 Den., 599.)</p> <p>A municipal corporation is bound to keep its streets and walks in a safe condition for public use, and is liable for damages arising from a neglect to do so. * (Requa v. City of Rochester, 45 N. Y., 129; Davenport v. Ruckman and the Mayor of N. Y., 37 id., 568; Furzee v. New York City, 3 Hill, 612 ; Storrs v. City of Utica, 17 N. Y., 104; Conrad v. The Village of Ithaca, 16 id., 158; Hutson v. Mayor, etc., New York, 9 id., 163; Hickok v. Village of Plattsburgh, 16 id., 161; Clark v. The City of Lockport, 49 Barb., 580; Wallace v. The Mayor, etc., of New York, 2 Hilt., 440; Rochester Lead Co. v. City of Rochester, 3 Comst., 463; Hines v. The City of Lockport, 41 How., 435.) Though the language of its charter empowering it to keep its streets and walks in repair is that of permission, its nature is plainly imperative. (Hutson v. Mayor, etc., of N. Y., 9 N. Y., 163, 168, 169; Furzee v. N. Y. City, 3 Hill, 612; Adsit et al. v. Brady, 4 id., 630; 1 Den., 601; Wallace v. Mayor of N. Y., 2 Hilt., 440; Davenport v. Ruckman, 37 id., 573.)</p>

Eeeob to the General Term of the Supreme Court in the first judicial department, to review judgment of that court affirming judgment of the Court of General Sessions of the Peace in and for the city and county of New York, entered upon conviction under an indictment for an assault with intent to kill.

This action was brought upon an alleged contract of life insurance. Defendant is a foreign corporation having an office and doing business in the city of Hew York.

This case comes up on cross-appeals by the respective parties from a judgment of the General Term of the Supreme Court in the third judicial district, affirming a judgment in favor of the plaintiffs, entered upon the report of a referee.

(Reported below, 6 Lans., 44.) On the 3d day of January, 1871, a regimental court-martial was appointed by special order for the trial of delinquencies, etc., in said regiment. Defendant was detailed for said court. He took the prescribed oath, and opened said court at regimental head-quarters January 27, 1871.

<p>Where proceedings conducted by one party for his own benefit in the name of another are restrained by an injunction directed to the nominal party, the damages and expenses incurred by the real party in interest in procuring a discharge of the injunction will be presumed in law to have been incurred by the defendant on the record, and are recoverable in his name for the benefit of the real party in interest.</p> <p>On an assessment of damages upon an undertaking ‘given upon the granting of a temporary injunction which restrained legal proceedings for the collection of a demand, it is not competent to go into the merits of the proceedings restrained, unless the party prosecuting the reference claims as damages the loss of his demand.</p> <p>Expenses properly incurred on the part of the defendant for the purpose of dissolving an injunction are legally allowable as damages, and when a motion has been made to dissolve the injunction, which was denied, not upon the merits or for‘irregularity, but because the court in its discretion thought it advisable to defer the inquiry into the merits until the final hearing, the expenses of the motion and also counsel fees upon the trial are proper items of damages.</p>

The legislature met, according to law, on the first Tuesday of January, 1872, and ended the regular session on May 14, 1872, by adjourning sine die. After such final adjournment, and on May 14,1872, the governor, by proclamation, under section 4 of article 4 of the Constitution, convened the senate in extraordinary session for the purpose of acting upon charges against certain judges, and for the consideration of such other business as he might bring before them.

Motion to dismiss appeal from order of the General Term of the Supreme Court in the first judicial department, affirming an order of Special Term setting aside an inquest. The facts and grounds of motion appear in the opinion. *

<p>The provisions of the Revised Statutes, authorizing the next of kin within one year after probate of a will of personal property to contest the probate (2 R. S,, 61, §§ 30-39), are not confined to wills relating solely to personal property, but are applicable to those proved as wills of both real and personal property.</p> <p>These provisions are not abrogated by the provisions of the act of 1837 (chap. 460, Laws of 1837), which require the same proof and proceedings for the probate of wills of personal as of real property, and which dispense'with the separate recording of the instrument as a will of personal property after it has been recorded as a will of real property.,</p> <p>In case the probate of a will as a will of personal property is revoked, if it has also been proved as a will of real estate, the effect of that probate is not impaired. Notice to devisees is, therefore, unnecessary.</p>

This was an action of trespass. In January, 1852, the Fredonia and Sinclairsville Plank-road Company was organized for the purpose of constructing a plank-road from the village of Fredonia to the north line of the town of Ellicott. The company surveyed their road and run it across lands in the possession of Bufus Pratt, and also across lands in the possession of the plaintiff, where previously there had been no highway.

This was an action of libel. The alleged libel and the facts connected with its publication sufficiently appear in the opinion. The court upon trial directed a verdict for defendants, to which plaintiff duly excepted, and verdict was rendered accordingly. Privileged communications of parties and attorneys are limited to matters which are pertinent and material.

(Reported below, 4 Lans., 17.) The action was brought to recover penalties given by chap. 361 of the Laws of 1865 for delivering to plaintiff’s factory diluted and skimmed milk. Defendant lived upon, managed and controlled his farm and the work thereon. His wife, son and daughter milked the cows, prepared the milk for the factory, and delivered it. They delivered watered and skimmed milk.

Ebeor to the General Term of the Supreme Court in the first judicial department, to review judgment affirming proceedings upon habeas corpus of defendant, a justice of the Supreme Court of the city and county of New York, which proceedings were brought into the Supreme Court by writ of certiorari. (Reported below, 46 How. Pr.

The order was made after trial and judgment and appeal, and while the appeal was pending undetermined. The statute under which the commission issued is remedial, and should he liberally construed. (People v. Tibbets, 4 Cowen, 392; Donaldson v. Wood, 22 Wend., 397; Weed v. Tucker, 19 N. Y., 433 ; Wegman v. Childs, 41 id., 159.) The order for the commission was in the discretion of the court, and is not appealable. (Thatcher v. Bennett, N. Y. Sup.

The referee awarded as damages $500 counsel fees paid by defendant upon the trial of the action. Defendant was entitled to reasonable counsel fees. (Edwards v. Bodine, 11 Paige, 224; Aldrich v. Reynolds, 1 Barb. Ch., 613; Wilde v. Joel et al., 15 How. Pr., 329; Corcoran v. Judson, 24 N. Y., 106.) Any method or procedure deciding that plaintiffs were not entitled to the injunction is within the language of the Code and undertaking. (Meth.

<p>Section 78 of the Code, which limits the time for the commencement of actions for the recovery of the possession of real property to twenty years, includes only those actions which, prior to the Code, were actions at law for the recovery of real property or its possession.</p> <p>Where one claiming to he the owner in fee of lands subject to the lien of a mortgage, of which lands the mortgagee is in possession, institutes an action seeking for an accounting, for liberty to pay the amount ascertained to be due upon the mortgage, and upon payment to be let into possession; such action is not embraced within section 78, hut comes within the provisions of section 97, which limits the time for the commencement of actions for relief, not before provided for in the preceding sections, to ten years.</p> <p>Such a cause of action, however, does not accrue when the money secured by the mortgage becomes due, but only when the mortgagee enters into possession; and it seems not then, if the mortgagee enters and continues in possession avowedly as mortgagee, not claiming the fee. While the owner of the fee of lands continues liable to an action for the foreclosure of a mortgage or for the payment of any encumbrance thereon which is past due, he has a continuing right to invoke the aid of equity to determine the amount of the lien, if uncertain, and to compel its discharge upon payment; and an action to enforce this right cannot be barred by the statute of limitations.</p> <p>But where a purchaser upon a foreclosure sale enters into possession, claiming title under such sale, the right to an action for this equitable relief, of a grantee from the mortgagor, as to whom the foreclosure is a nullity, for the reason that he was not made a party thereto, is barred after the possession of the purchaser or his grantee has continued for ten years.</p> <p>Where an owner has permitted his right to satisfy a mortgage to remain dormant for nearly thirty years, during which time others have paid the assessments and taxes and made improvements, in the belief that they had title under a foreclosure of the mortgage, equity will require, as a, condition of his regaining possession, the payment of such assessments and taxes and for such improvements, in addition to the amount of the mortgage.</p>

court at Special Term. This action was brought to restrain defendant Gannon from foreclosing a mortgage upon certain chattels, executed to him by defendant Reed.

(Reported below, 8 Lans., 255.) This action was brought by plaintiffs’ assignees of one Walters to recover possession of certain blacksmith tools and iron, and other property, conveyed by the assignment. The property was sold in January, 1867, by defendants, Montgomery and Sage, to Walters, upon a credit, they receiving his notes for the purchase-money. Walters executed an assignment, for the benefit of creditors, to plaintiffs, on Saturday, February 23, 1867.

<p>Appeal from judgment of the General Term of the City Court of Brooklyn, affirming a judgment in favor ofplaintiffs, entered upon the report of a referee.</p> <p>This-action was brought for the enforcement of a’nechanic’s lien in Kings county, created under chap. 478, Lavs of 1862.-Thé creation of the lien in accordance with the itatute was conceded.</p> <p>On the 13th of April, 1870, about 10 a. m., defenlant served upon plaintiffs a notice requiring them on or beforeApril 13th, 1870, at 12 o’clock noon, to commence an acton for the enforcement of their lien.</p> <p>An affidavit of the service of such notice was lied in the office of the clerk of Kings county on the 28thMay, 1870. The summons in this action was served on the 10th May, 1870, and issue was joined by the service of an aiswer on the 31st May, 1870. No affidavit from plaintiffs of the issuing or service of the summons and complaint in an action for the enforcement of the lien was. filed within thirty days after filing of affidavit of service of notice. The referee held the neglect' to file siich affidavit did not discharge the lien, and directed- judgment for sale of the premises. Judgment was entered accordingly.</p> <p>Where the lien expires at the end of a year by limitation, there can be no judgment for its enforcement unless recovered within the year. (Grant v. Vandercook, 57 Barb., 165; Freeman v. Cram, 3 N. Y., 305.) Every provision of the statute of mechanics’ liens appearing to be for the protection of the owner, must be strictly construed in his favor. (Blackwell on Tax Titles, 265, and cases cited.)</p> <p>The defence was merely technical, and should not be permitted upon an answer like the one in suit. (Code, § 177; Hoyt v. Sheldon, 4 Abb., 59; 6 Duer, 661.)</p>

The resolution authorizing the work was introduced in the board of aldermen September 6th, 1869, it was adopted by that board September 27th, 1869, and by the board of assistant aldermen October 4th, 1869, and approved by the mayor October 11th, 1869. The Hew York Leader was appointed as one of the corporation papers by the common council in January, 1857.

<p>A sale by a creditor of collateral securities, placed in bis hands by the principal debtor, in violation of a stipulation for a particular notice of sale contained in the contract under which they were pledged, does not, per se, discharge a surety in toto who is liable for the debt, but by such sale the creditor makes the securities his own to the extent of discharging the surety to an amount equal to their value.</p>

This action was brought upon a promissory note made by defendants, Graham, Whitfield and Robert Milbank, to the order of defendant, Robert W. Milbank, and by him indorsed to Frederick Brookman, by whom it was transferred, before maturity, to plaintiff.

<p>Although a case contains no findings of fact or exceptions, if the judgment below is materially modified by the General Term the party injuriously affected by the modification has the right, upon appeal to this court, to a review of the question as to the correctness of the modification.</p> <p>Plaintiff was the owner of a mortgage covering a farm which was subsequent to the execution of the mortgage sold to B.; B. executed a mortgage thereon to Q. for $1,200. He then sold seventy-seven acres thereof to 0. He conveyed the residue, excepting twenty acres, to H. S., subject to plaintiff’s mortgage and another, both of which H. S. agreed to pay. H. S. gave back a mortgage to secure $8,500 of the purchase-money, containing a proviso that no part of the sum secured should become due or payable until all liens and incumbrances not assumed by the mortgagor should be paid and discharged of record. The twenty acres excepted were upon the same day conveyed by B. to B. S. This deed was made subject to the same mortgages referred to in the deed to H. S. Q. foreclosed his mortgage by action. Plaintiff was not made a party. Under the judgment therein the portion conveyed to H. S. was sold, ■subject to all incumbrances prior to Q.’s mortgage, the purchaser assigned his bid to M., who received the sheriff’s deed. In an action to foreclose plaintiff’s mortgage, M. claimed that the twenty acres sold to E. S. should be sold first, upon the ground that Q.’s mortgage was protanto an alienation of the property; that he, as purchaser, acquired the rights of the mortgagee and that the conveyance under the foreclosure of that mortgage related back to the date of the mortgage and was to be regarded as a conveyance prior to that of E. S. Held, that in the absence of proof to the contrary, it must be presumed that the sale upon the foreclosure of Q.’s mortgage was conducted in accordance with the judgment directing it, and that such judgment directed the lands conveyed to H. S. to be first sold; that they were, in equity, liable to be so sold, as H. S. had in his hand an amount of the purchase-money sufficient to pay that mortgage; that they were also primarily liable for the payment of plaintiff’s mortgage, and when they were sold, subject to this incumbrance, the inference is they were sold subject to the entire burden thereof; and that therefore the judgment herein should direct that such lands, now the lands of M., be first sold.</p>

The action was brought upon a policy of insurance issued by defendant to plaintiffs for $3,000 on plaintiffs’ stock in trade, “ contained in the three-story brick building known as No. 392 Washington street, in the city of N ew York.” Other insurance was permitted without notice until required.

The facts pertaining to the question decided, sufficiently appear in the opinion. The offer of proof as to statements of Van Order and wife, made out of court and inconsistent with their testimony in court, was proper and material to impeach the witnesses, and should not have been excluded. (2 Brod. & Bing., 300 ; 6 English Common Law, 130; 2 Russell on Crimes, 930; 1 Am. Crim.

(Reported below, 4 Lans., 301.) This action was brought to recover the amount of a judgment in favor of defendant and assigned by it to plaintiff, and afterward, as alleged, satisfied by defendant. On the 29th December, 1860, defendant recovered a judgment in the Supreme Court against Archibald H. McLean, Hector McLean, and Theodore Goddard, impleaded with Charles L. Flint, for $3,503.21. On the 14th December, 1861, it assigned the judgment to plaintiff.

(Reported below, 4 Lans., 433.) This action was brought upon an alleged contract of fire insurance upon a quantity of cotton at Appalachicola, Florida.

. This action was brought to recover the amount of a promissory note for $800, made by defendant, dated April 11,1867, payable to the order of plaintiff, one year from date, “ at L. J. Wilkin’s land office in Dundee.” About the time-the note fell due she was told by her son-in-law, Theodore Miller, that defendant wished to pay interest and renew the note for one year; she thereupon gave him the note, with instructions to get a new note for the principal indorsed by one…

<p>Error to the General Term of the Superior Court of the city of Buffalo to review judgment affirming a judgment of the criminal term of that court, entered upon a conviction of plaintiff in error of the crime of murder in th.e first degree, in killing one Patrick Fahey.</p> <p>A motion for a new trial was made at General Term, founded upon the judgment record, bill of exceptions, and certain affidavits, which presented certain alleged irregularities of the jury. The facts pertinent to the questions presented are sufficiently stated in the opinion.</p> <p>The Superior Court of Buffalo has no authority to order its talesmen to be drawn from the bystanders or the city at large, in the discretion of the sheriff. (Laws 1854, 228; Laws 1857, 754; Laws 1870, 738; Laws 1839, chaps. 186, 210; Laws 1840, chap. 251.) The provisions of section 29, Laws 1854, chap. 96, which relate to talesmen, must be regarded as imperative. (Mayor of N. Y. v. Furze, 3 Hill, 612; The King v. Mayor of Hastings, 1 Dowl. & Ryl., 148 [16 Eng. Com. Law, 23]; 1 Smith Com., 727, “ Leases;” 2 Bouvier’s Law Dict., 163, “ May.”) It was error to allow the written statement of the witness Curran, made out of court, to be read in evidence against the accused. (Morrison v. Myers, 11 Iowa, 538; Roscoe’s Crim. Evi., 13; Queen’s Case, 6 Eng. Com. Law, 117; Sprague v. Cadwell, 12 Barb., 517; Mendenhall v. Banks, 16 Ind., 284; Wiggins v. Holman, 5 id., 501; Mc Vey v. Blair, 7 id., 590; Robb v. Hackley, 23 Wend., 50; Dudley v. Bolles, 24 id., 465; People v. Finnegan, 1 Park. C. R., 147; Laws 1871, chap. 720, § 16, p. 1648.)</p> <p>The court had authority to summon talesmen as jurors. (Cool v. Smith, 1 Black., 459; Wood v. U. S., 16 Pet., 342; 10 Barb., 448 ; Hartford v. U. S., 8 Cranch, 109; Brown v. County Com’r, 21 Penn., 37; Street v. Commonwealth, 6 Watts & Serg., 209; Bowen v. Lease, 5 Hill, 221; Williams v. Potter, 2 Barb., 316; People v. Deming, 1 Hilt., 271; Potter’s Dwarris on Statutes, 144, 145, 156; Ogden v. Strong, 2 Paine, 584; 1 Kent Com., 162; People v. Draper, 15 N. Y., 532; McCartee v. Orphan Asylum Society, 9 Cow., 437.) The statement made by Curran was properly admitted in evidence. It was competent for the purpose of contradicting and impeaching him as a witness. (Crowley v. Page, 7 C. & P., 791; The State v. George, 8 Ired., 324; Smith v. The People, 2 Mich., 415; also Phil. on Evi., 960, vol. 2, 4th Am. ed.; Patchin v. The Astor Mut. Ins. Co., 3 Kern., 268; Clapp v. Wilson, 5 Den., 285; 1 Phil. on Evi., 293-296; Stephens v. People, 19 N. Y., 573; 17 Mass., 160; 9 Cush., 338; 3 Gray, 463.) The reading of the entire statement could not prejudice the prisoner. (Shorter v. People, 2 N. Y., 193 ; People v. Gonzales, 35 id., 49; Starin v. People, 45 id., 341.) The objection that the statement is incompetent is too general to enable the defence to raise questions of error. (18 Johns., 544; 20 id., 353; 5 id., 467; 8 id., 495; 6 Barb., 335; 38 N. Y., 186; 6 Trans. App., 242; 2 Seld., 235; 6 Hill, 407; 18 N. Y., 451; 32 id., 440; 20 id., 32; 5 Den., 285; 3 Park. Crim. R., 50; McDonald v. Smith, 47 Barb., 530 ; Shaw v. Smith, 3 Keyes, 316; Wilson v. N. Y., 3 id , 381; Hochreiter v. People, 1 id., 66; Atkins v. Ewell, 45 N. Y., 753; Jackson v. Cooper, 20 Johns., 357; Newton v. Harris, 6 N. Y., 345; Mallony v. Perkins, 9 Bosw., 572; Elwood v. Deifendorf, 5 Barb., 398; Staats v. Hudson R. R. R. Co., 23 How. Pr. R., 463.)</p>

A motion was made by defendant at Special Term to set aside an amended complaint herein. The motion was granted and the order was affirmed at General Term. TJpon appeal to this court the order was reversed and motion denied with costs.

The action was brought to compel defendant Ross, as executor of the last will and testament of James Moncrief, to account for the rents collected by him from the real estate of the deceased, and to pay to plaintiff one-third thereof. James Moncrief died February 1,1871, seized of a large amount of real estate situate in the city of New York, leaving plaintiff, his brother, and defendants Agnes A. Moore and Jane Monerief, his sisters, his only heirs him surviving.

The action was brought to recover possession of certain real estate situate in Castleton, Staten Island. Plaintiff claimed title under a deed from Henry A. D. Freeman. Defendants claimed that the deed was in fact intended as security for a usurious loan. The facts appear sufficiently in the opinion.

This action was brought to recover the value of eight bonds (so called) of the United States government, of which five were for the sum of $1,000 dollars each, and three for the sum of $500 dollars each. The bonds were coupon bonds, payable to bearer. The plaintiff was the owner of the bonds, and deposited them for safe keeping in the P. B. Westfall Bank, of which Beardsley Yan Alstine was the cashier.

<p>An act was passed by the legislature in 1853 (chap. 80, Laws of 1853) purporting to amend “section 22 of chapter 20 of title 1 of the first part of the Revised Statutes, fourth edition.” The provision incorporated and thus designated in the compilation of statutes referred to was not a part of the Revised Statutes, but was a statutory enactment existing prior to the revision and not repealed thereby. (Chap. 352, Laws of 1829.) Held, that the intent of the legislature was to amend that portion of the statute law which was to be found in printed form in the compilation referred to, and the act was effectual to make such amendment.</p> <p>By the provision of the charter of the city of Schenectady, which enacts that supervisors of wards elected thereunder shall be subject to all the . provisions applicable to supervisors in the towns (§ 8, chap. 385, Laws of 1862), a supervisor of a ward of that city is brought within the prohibition of the statute declaring that no supervisor of any town shall be elected or appointed to hold the office of superintendent of the poor. ' (Chap. 80, Laws of 1853.) By this prohibition a supervisor is not merely made ineligible to hold the office of superintendent, but he is ineligible to an election or appointment thereto.</p> <p>This statutory provision does not infringe upon the constitutional rights of an elector to vote for all elective officers (§ 1, art. 2, State Constitution), nor upon his right to be elected to any office.</p> <p>Where the power is reserved to the legislature to direct the method of filling an office, whether by election or appointment, it may in its discretion, when conferring upon, the elector the power to elect, limit the number from whom he may select, or declare one holding another office ineligible to receive his suffrage.</p> <p>It seems the same legislative power exists in reference to offices created or continued by the Constitution, and thereby made elective. •</p> <p>A minority of the whole body of qualified electors may elect to an office where the majority decline to vote, or where they vote for one who is ineligible to the office, knowing of the disqualification. ¡Notice of the disqualifying fact, and of its legal effect, may be given so directly to the voter as to charge him with actual knowledge of the disqualification; or the disqualifying fact may be so patent or notorious as that his knowledge of the ineligibility may be presumed as matter of law. But no.t only the fact which disqualifies, but also the rule or enactment of law which makes it thus effectual, must be brought home so clearly to the knowledge or notice of the elector as that to give his vote therewith indicates an intent to waste it in order to render his vote a nullity.</p> <p>Where a majority of the electors, through ignorance of the law or the fact, vote for one ineligible to the office, the votes are not nullities; but while they fail to elect, the office cannot be given to the qualified person having the next highest number of votes. The election is a failure, and a new election must be had. (The rule stated which should govern in such case.)</p> <p>¡Precedents drawn from the action of legislative committees are not satisfactory. (Per .Folgbr, J.)</p>

(Reported below, 5 Lans., 51.) This action was brought for an accounting to ascertain amount due upon certain mortgages covering certain lands, of which plaintiffs claimed to own the undivided one-half, and of which defendant was in possession, claiming title under a foreclosure sale, which plaintiffs alleged to be defective and invalid. He also asked leave to redeem, and upon payment of the amount found duerto recover possession of said moiety.

This action was brought against defendant as indorser of a promissory note, of which the following is a copy: “$3,352.61. “ New York, October 15, 1869. “ On demand I promise to pay to Hamilton G. Fant or order $3,352.61 for value received, with interest at the rate of seven per cent per annum, having deposited with him as collateral security, with authority to sell the same at the brokers’ board, or at public or private sale, or otherwise at his option, on the…

This action was brought to recover damages for an alleged conversion of ten .cows. Plaintiff’s testator, William Whit-more and defendant were the owners of adjoining.lands; ten cows belonging to Whitmore broke through the division fence and trespassed upon the lands of defendant, who seized them and caused them to be sold, in proceedings conducted according to the requirements of chapter 814, Laws of 1867.

<p>Where a judgment in an action tried by the court or a referee is reversed by the General Term and new trial ordered upon questions of fact, the General Term is not required to specify, in its order, the particular errors of fact to authorize a review in this court; it is sufficient if the order states generally that the reversal was based wholly, or in part, upon errors of fact.</p> <p>The General Term has not only authority but it'is its duty, where the facts established require it, to reverse a judgment as to one or more of several joint defendants, and affirm it as to others.</p> <p>Fraud is not established by proving the falsity of statements which were simply expressions of opinion and belief founded upon information derived from others. The party alleging fraud must show, in addition, that he who made the statements knew them to he false at the time of making them.</p> <p>Where one, with intent to cheat and defraud another, induces him by fraudulent means and representations to purchase stocks for value which he knows to be worthless, he is liable for the damages sustained, whether the purchase is made from him or another.</p> <p>The measure of damages in such case is the difference in value of the stock, as the condition of the company issuing it really was, and as the purchaser was fraudulently induced to believe it was. The market price of the stock about the time or soon after the purchase, is strong evidence of its value, and in the absence of other proof will control. But where the real pecuniary condition of the company is shown, from which it appears the stocks were worthless, such market price is entitled to no weight upon the question of value. The purchaser, after discovery of its worthlessness, is not bound to mitigate the loss of him by whose fraud he was induced to purchase, by himself cheating some ignorant purchaser.</p> <p>As between stockholders, the books of a corporation and sworn copies thereof are competent evidence to show the acts of the corporation.</p>

The appeal was by various owners of lands assessed for benefits. (Reported below, 41 How. Pr. R., 12; 4 Lans., 469.) The order of the General Term, dated August 2, 1872, is appealable to this court. (N. Y. C. R. R. Co. v. Marvin, 1 Kern., 276; In re Canal and Walker Streets, 2 id., 406; The People v. Boardman, 4 Keyes, 59; In re Townsend, 39 N. Y., 171; Rens. and Sar. R. R. Co. v. Davis, 43 id., 137; Code, § 11, sub. 3; In re Palmer, Ct.

<p>The right to a preliminary injunction orto an injunction pendente lite rests in all cases in the discretion of the court of original jurisdiction. An order therefore dissolving such an injunction does not affect a substantial right, and is not reviewable in this court.</p> <p>It does not follow from an allegation or averment of a litigant of the unconstitutionality of a particular law which enters into or even which may be •the foundation of a litigation, that every order made in the progress of the action involves the constitutionality of such law within the meaning of subdivision 4 of section 11 of the Code, as enacted in 1865.</p> <p>It seems that to bring a case within that provision, the court in making the order complained of must have passed directly upon the constitutional question, and the intent of the legislature Was to restrict such appeals to cases in which a law of the State is declared unconstitutional and a party thus deprived of some right given by the statute.</p>

- The objections to the assessment were, that the resolution and ordinance in pursuance of which the work was done had not been published, as required by section 7 of the charter of 1857, and that the assessment was never confirmed by the common council. A portion of the proceedings were not published in the New York Leader, an official newspaper. An assessment was made under chapter 574, Laws of 1871. The facts in reference thereto appear in the opinion.

Appear from order of the General Term of the Supreme Court in the first judicial department, affirming an order of Special Term denying a motion to vacate an assessment for sewers in Seventy-ninth and Eightieth streets, between Avenue A and Third avenue. The objection to the assessment relied upon principally was, that a portion of the sewers were constructéd in streets not included in a sewerage district plan adopted or filed previous to mating the contract for the work.

On the 30th December, 1871, the petitioners presented their petition pursuant to chapter 338, Laws of 1858, for the vacation of above assessment. The grounds stated were: 1st. That said assessment was never confirmed by the common council of the city of New York. 2d. That the resolution and ordinance authorizing the work were not published, as required by the seventh and thirty-seventh sections of chapter 446, Laws of 1857 (the city charter).

The ground of the application was that the pavement was a patent pavement; and as it could not be made the subject of competitive bids, the contract for laying it violated section 104 of chapter 137, Laws of 1870, and was, therefore, void. The contract for the work was made in 1870, after the passage of the act. Advertisements for bids for the work were duly published.

Henry H. Bull, collector of the Central Hational Bank of the city of Hew York, got on to a street car on the 25th of Hay, 1872. He had in his possession, in a pocket-book in his breast coat pocket, about §25,000 in money and securities. As he was entering the door he was met by the prisoner, who put his hand into Hr. Bull’s pocket, seized the pocket-book, and lifted it about three inches, from the bottom of the pocket, when he was discovered by Hr.

<p>A statute cannot be held unconstitutional or defective where it may be completely executed without any violation of a constitutional provision, or any further action by the legislature.</p> <p>The provisions of the act entitled “An act in relation to the erection of public buildings for the use of the city of Rochester,” which provides that the commissioners to be appointed thereunder shall select, as a site for a city hall, either certain lands therein mentioned owned by the city, or some other piece of land in said city which they may deem suitable (Laws of 1873, chap. 319, §§ 3, 4), is not violative of the provision of the Constitution which prohibits the taking of private property for public use without compensation (State Const., art. 1, § '7), as under it the commissioners may select lands owned by the city; and such lands can be taken for the purposes of the act, without any provision for compensation.</p> <p>The selection and procuring a site for the contemplated" buildings are necessary steps toward the erection thereof, and are embraced in the subject expressed in the title of said act.</p> <p>The insertion of this provision, therefore, in the act does not render it repugnant to the constitutional provision prohibiting the passage of 3,-local or private act embracing more than one subject, and that to be expressed in its title. (State Const., art. 3, § 16.)</p>

This notion was brought to recover damageS'for the alleged conversion of certain promissory notes, indorsed by plaintiff and delivered by him to defendant. Charles A. Stetson and Robert B. -Coleman were formerly proprietors of the Astor House, in Hew York, under the firm-name of -Coleman & Stetson. They failed in -May, 1856.

„ (Reported below, 58 Barb., 529.) • Augustus Whitlock, of the city of Hew York, died prior to September 20th, 1866, leaving a last will and testament, which was duly admitted to probate, and on the last mentioned day letters testamentary were issued by the surrogate of Hew York to respondents, Daniel B. Whitlock, Robert C. Gwyer and Peter R. Bonnett, the executors therein named.

. This action was brought to foreclose two mortgages, covering two lots of land situate in the city of Hew York, one of which was made by William Graham, the husband of plaintiff, in his lifetime, and the second by the plaintiff as administratrix of the estate of her husband, pursuant to a decree of the surrogate of the county of Hew York, entered agreeably to provisions of title 4, chap. 6, of part 1, of the Eevised Statutes, the personal estate being insufficient, as…

Appeals from judgments of the General Term of the Supreme Court in the fourth judicial department, entered upon orders affirming orders of Special Term, sustaining demurrers to the complaints, and directing judgments thereon. The first action was in the nature of a quo wa/rranto.

The nature of the action and the facts pertinent to the question discussed, appear in the opinion. This action is not authorized; the right of action is given to all the creditors of the company similarly situated, jointly. (Osgood v. Laytin, 5 Abb. [N. S.], 1, 9, 10; 4 Eds.

The nature of the action and the facts sufficiently appear in the opinion. Defendant’s right to a trial by jury in this’ case is a constitutional right the court cannot deny. (Const.

The action was brought to recover $63,062.50 paid by plaintiff upon a check dated May 1st, 1866, drawn upon plaintiff by one John Eoss to the order of J. S. Cronise & Co. The check purported to be certified by the teller of plaintiff’s bank and was received by Cronise & Co. from John Eoss, the maker, as a certified check, and by Cronise & Co. deposited in defendant’s bank. The certification was a forgery.

<p>Where, upon appeal to this court from an order granting a new trial in an equity case, the order is affirmed and judgment absolute ordered against appellant “ without costs to either party,” this disposes of all the costs in the action, and an insertion by respondent of costs in the judgment entered upon the remittitur is irregular.</p> <p>A motion to correct the judgment is the proper remedy.</p> <p>Whether an appeal from the judgment is proper in such case, quere.</p>

perpetual stay of proceedings upon a judgment and. execution, docketed herein, in favor of the plaintiff against the defendants, for- §1,157.56 damages and $276 costs. The action was brought on. a contract for the sale and delivery of whisky, and tried by the court and decided on the 7th day of October, 1867.

The prisoner was indicted for the murder of Avery D. Putnam, in- the city of Hew York. Putnam took the Broadway horse cars on the .evening of April 26th, 1871, with a lady and child. At . Twenty-ninth street the child looked through the window in_ front door to see the clock upon the Gilsey House. The prisoner, who stood -upon the front platform, opened the door. It was shut. Prisoner opened it a second and third time, and it was as often shut.

The complaint alleged in substance that defendant was a corporation, organized under the laws of the State of New York; that on the 2d of April, 1849, in consideration of $150 paid them by plaintiff, and of annual premiums of that amount, to be paid thereafter, it executed and issued to her a policy of insurance upon the life of her husband, Octavus Cohen, in the amount of $5,000, for the term of his natural life; that the policy contained the conditions that if the said…

(Reported below, 59 Barb., 556.) This action was brought by the plaintiff as assignee of a policy of life insurance. The defendant issued to James Sands, of Mobile, a life policy for $5,000 on his life, dated January 28,1850, in which the annual premium was fixed at $160, payable on the 18th of January in each year.

This action was brought to compel defendants to remove certain encroachments alleged to have been placed by defendants upon the premises- of plaintiff, and to restore the property to its former condition. The parties are the owners of adjoining premises, situate in the city of Rochester. In 1846 one Everard Peck owned both premises. He deeded to plaintiff, in July of that year. At that time Peck had begun the construction of a three-story brick building upon the lot.

This action was brought to recover possession of a strip of land in the city of Brooklyn, six inches wide. About nineteen years before the commencement of this action J. S. T. Stranahan was the owner of two adjoining lots of land in said city, and built thereon two houses, separated by an eight-inch party wall. He conveyed the easterly lot to Hiram Travis and the westerly one to Nathaniel Travis. The deeds were recorded at the same time.

This action was brought to recover for a quantity of wool destroyed by fire while on the defendant’s pier in New York. The wool was shipped at Fort Wayne, Indiana, by the Pittsburgh and Chicago Railway Company. By the bill of lading that company agreed to transport the wool to its station at Pittsburgh (the company to be exempted from loss by fire), and to deliver it to the connecting carrier, where its responsibility as common carrier should cease.

This action was brought against defendants as assessors of the town of East Bloomfield, Ontario county, to recover damages for an alleged illegal assessment. Plaintiff was assessed by defendants in 1867 the sum of $188.66. He was not in fact a resident of the town.

■ Appeal from order of the General Term of the Superior Court of the city of New York, reversing an order of Special Term, which set aside… Held: that the judgment should not have been set aside, but a readjustment ordered; that sections 30 and 305 of the Code superseded the provisions of 2 R. S., 617, § 26 (affirming decision in Stoddard v. Clwrhe, 9 Abb. [N. S.], 310), and defendant was not entitled to costs; that the referee was only entitled to three dollars per day for…

The court dismissed the appeal in accordance with the rulings in Wright v. Hunter (46 N. Y., 409) and Sands v. Crook (46 id., 564), holding that for the present it was proper to follow the practice adopted in those-cases. 'Allen, J., who wrote opinion, held that sufficient publicity had been given to the rulings in those cases, and that in accordance with the intimation in Dickson v. B. & S. A. R. R. Co. (47 N. Y., 507), the privilege of a dismissal should now cease, and…

judgment affirming judgment in favor of plaintiffs entered upon a verdict. Held: that the order was not appealable; the court citing Lawrence v. Ely (38 N. Y., 42); Bedell v. Chase (34 id., 386); Selden v. 77 77 Canal Co. (29 id., 634), and stating that in Tracy v. Altmayer (46 N. Y., 598) the doctrine is recognized that the order, when motion is heard upon the merits, is not appealable.

The parties were seized each of a portion of lot twenty-nine in the city of Rochester, deriving title from a common source; by that the… Held: 1st. That the original title, and the right of possession of the parties, as derived therefrom, extended no further west than the east line of Clyde street, as it then was. 2d. That the language of the description in plaintiff’s deed carried his right to the center of the street; and when the public abandoned its easement plaintiff…

The action was brought against defendant, as a surgeon, for malpractice, in treating a dislocated elbow joint. Held: error (Church, Ch. J., Peckham and Grover, JJ., dissenting); various other questions were discussed in the prevailing opinion, but were not agreed to by a majority of the court.