Volume 51 — Barbour's New York Supreme Court Reports

<p>The owners of a steamboat employed in the business of towing boats, for hire, are not common carriers, and hence not insurers. But they are liable if guilty of gross carelessness, if not for a failure to exercise ordinary care in the management of the steamer and the boats towed.</p> <p>A provision in a contract for towing that the boats shall be towed “ at the risk of the master and owner ” of such boat, refers to the perils of navigation, simply, and cannot properly be construed to excuse the negligence of the proprietors of the towing vessel, or those in charge thereof.</p> <p>Parties undertaking to tow a boat from one place to another are bound to do so, unless prevented by causes to which at least gross negligence on their part does not contribute.</p> <p>The defendant agreed to tow the plaintiff’s boat from Albany to New York. After proceeding about four miles, the defendants’ hawser broke, and set the plaintiff’s boat, with others, adrift,- which floated down the river some fourteen miles, without any attempt to regain it. There was no explanation offered in respect to the strength of the hawser; or the immediate cause of its breaking; or in regard to the management of the steamer; or why an effort was not made to again take the plaintiff’s boat in tow, although there was evidence to the effect that there was no difficulty in the steamer taking the entire tow through to New York. In an action against the defendants for damages occasioned by their negligence; Seld that the plaintiff was improperly nonsuited.</p> <p>The question of negligence is peculiarly a question of fact to be determined by the jury; and the case must be very clear which will justify the court in withholding it from their consideration.</p>

<p>An instrument, made since 1787, by one person to another, conveying lands in fee, in this state, operates as an assignment and not as a lease; and hence the strict relation of landlord and tenant is not created thereby.</p> <p>There is, therefore, no distinction between the covenants contained in such an instrument and other sealed instruments, so far as the presumption of payment or extinguishment is concerned.</p> <p>Where, in an action upon the covenant to pay rent, contained in such an instrument, executed in 1799, there was no evidence to show that any rent had ever been paid upon it, during a period of sixty-four years, and it appeared affirmatively not only that the defendant had not paid rent within twenty-two years, prior to the commencement of the action, but that the plaintiff had not claimed the same; Held that upon these facts the law raised the presumption that the cause of action had been released, discharged or extinguished, and the plaintiff could not recover.</p> <p>The presumption of payment, in such a case, will not be repelled by an admission of the defendant that there had been a general resistence and refusal to pay rent, for the last twenty-five years, by the tenants of the manor of which .the lands in question constituted a part.</p>

APPEAL by the defendants from a judgment entered in favor of the plaintiff, upon the verdict of a jury, and from an order denying a motion for a new trial. The action was brought to recover the possession of an autograph letter, written by General Washington, and addressed to the plaintiffs, in 1785, and which, in May, 1864, was sold at auction hy the defendants, composing the firm of Bangs, Merwin & Co. to the defendant Lent.

<p>Under the Code of Procedure, the only requisites for the issuing of an attachment are that the action should he for the recovery of money; that the same should be on contract; that the plaintiff should specify the amount of the claim, and the ^grounds of the demand; and that the defendants should be non-resident debtors.</p> <p>A claim for damages arising upon the breach of a contract by the defendant to purchase sound corn for the plaintiffs, the breach complained of being that the com was not sound, but heated, sour and unmerchantable, arises on contract, and the amount claimed is a fixed amount, being the difference between the amount paid and the amount at which the grain was sold.</p> <p>An allegation, in the affidavit, that the defendants have property in this state, is not necessary to the issuing of an attachment.</p> <p>It is not necessary that the affidavit should show the issuing of the summons. It is sufficient if the summons is issued, when the attachment is obtained, and if both are delivered to the sheriff together.</p> <p>If the facts are sufficient, a warrant of attachment is not void for omitting to state one of them—as that the cause of action is in an action then pending.</p> <p>The objection that an affidavit was sworn .to before a commissioner in another state, but that no certificate of the secretary of state has been obtained as required by the statute of that state, is not fatal. The omission may be amended and supplied.</p>

APPEAL by the defendants, from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial, made upon the judge’s minutes.

APPEAL by the defendants from a judgment entered on the trial of this action before a justice of the court, at the circuit, without a jury.

THIS action was brought to recover for services rendered. The parties differed as to the amount of compensation agreed on. The parties were examined as witnesses in their own behalf. The defendant was the only witness on his own part. He testified to an interview between him and the plaintiff, at which an agreement was made with the plaintiff as to the terms on which he would do the defendant’s work.

THE plaintiff sues the defendant to recover the value of a trunk placed in charge of the express company, and lost while under their care. The loss was not disputed on the trial. The plaintiff valued the trunk and contents at $467. The defendant offered in evidence a receipt, given at the time of receiving the trunk, on which was a stipulation on the part of the company, limiting their liability in various ways.

<p>A subsequent party in interest, whether by way of mortgage, lease or judgment, cannot on a motion obtain a right to redeem and have the property conveyed to him by a purchaser. The only remedy in such a case is by action seeking to enforce such right to redeem; and in such an action the rights of all other parties can be protected.</p> <p>Where such a motion is made in a foreclosure suit, after the property has been sold and the deed delivered, by lessees for a term of years, alleging that they were misled by erroneous information, all that can be done is to open the judgment, set aside the sale and the conveyance, allow the lessees to put in an answer, and order a resale of the property.</p> <p>This can only be done on terms of indemnifying the purchaser, repaying to him the money paid by him on the purchase, and all expenses incidental thereto.</p> <p>The purchaser, in such a case, should have the election of permitting the resale, or of ratifying the lease to the applicants; and if he elects to do the latter, the sale should not be disturbed.</p> <p>It seems, the proper remedy of the lessees is to claim the value of their lease • out of the surplus, rather than by motion to redeem.</p>

<p>The provisions of the act of April 17, 1858, (Laws of 1858, eh. 388,) are only intended to relieve against fraud, or legal irregularity, in the proceedings relative to an assessment, or the proceedings to collect the same.</p> <p>The act does not authorize any inquiry whether the work has been well done; or whether the contract has been fully performed; or whether the materials used are according to the specifications; or whether the common council had all the surveys and certificates of inspectors, as required by the ordinances.</p> <p>These matters belonged to the common council, as the law was formerly, and now to the board of review; and do not come within the purview of this statute, except in cases where fraud is alleged to have been committed.</p> <p>The common council of New York has power, under sections 175 and 176 of the act of 1813, (2 it. L. p. 407,) to assess the expense of repairing oi repaving a street upon the property. The subsequent authority to the common council, to repair the streets and employ persons therefor, in sections 193,194 and 195, does not prevent the charging the expense thereof to the owner. Even if it did, it would not apply to a case of an entirely new pavement, after raising and altering the grade.</p> <p>The question whether the ordinance of the corporation, passed in 1824, by which it was agreed that the streets should be kept in repair at the public expense, after they are once paved at the expense of the owners, prevents any such assessment, does not come within the provisions of the act of 1858.</p> <p>If the corporation has not the power, the want of it is not an irregularity in the proceedings in making the assessment, nor in collecting it. If the common council have made a contract with the owner which they seek to violate, the remedy is not under the act of 1858.</p> <p>The ordinance of 1824 applies only to streets paved after its passage.</p> <p>The unanimous consent required to make an ordinance passed by both boards of the common council of New York, on the same day, valid, is the consent of all the members present at the time of its passage. If this appears from the fact that no objection was made at the time, and that all the members present voted for the ordinance, it is valid.</p> <p>The provision of law that no contract for any public improvement shall be entered into, before an appropriation has been made therefor, (Laws of 1857, eh. 446,) does not apply to cases where the expense is charged upon the owners, and not upon the public treasury.</p> <p>Assessors should not include any charge for making an assessment for repaving a street. The allowance of two and a half per cent for' making the assessment is no longer a legal charge.</p>

The following facts were found by the referee : 1st. That in the spring of 1858, and prior thereto, Con-. stant Cook, .Jotham Clark, Trumbull Carey, and the defendant were owners of certain claims against the Madison and Indianapolis Railroad Company, a corporation organized under and in pursuance of the laws of the state of Indiana, amounting to over $2300, in which said claims, the said Cook, Clark, Carey and the defendant, were in all respects equally interested. 2d. That…

The plaintiff, in August, 1859, became seised in fee of a farm situate in Corning, Steuben county, over and across which ran a water course, which occasionally, in times of flood in the Chemung river, overflowed its banks, passed in a northerly direction over and across the plaintiff’s land, and on to and across the adjoining lands of a Mr. Hoyes. .Before the plaintiff had acquired title to this farm the defendants had acquired the right to consti'uct their roadway over and…

<p>The official character of an individual as sheriff in another state, and a bench warrant issued to him as such sheriff upon an indictment found in that state will not authorize him- to arrest the person named therein within this state and carry him beyond its boundaries. In respect to those acts he is to be treated as a private person acting without legal process. .</p> <p>An arrest of a person within this state, by a private individual, without warrant, made for the purpose of forcibly abducting the arrested person from the state, and followed immediately by such abduction, cannot be justified. Such seizure and abduction, of themselves, constitute a criminal offense of . high grade, both at common law and by statute.</p> <p>One who has arrested another without process, or on void process, wrongfully, cannot detain him on valid process, until he has first restored such party to the condition he was in at the time of his arrest, at least to his liberty. The law will not permit him to pei-petrate a wrong for the purpose of executing process, nor to use process for the purpose of continuing an imprisonment commenced without authority and hy his wrongful act. jPer J. G. Smith, J.</p> <p>Where improper evidence is received although objected to by the other party, but subsequently and before the testimony is closed, the judge orders the evidence to be struck out, and directs the jury to disregard it, the error is not cured by such order and direction if the verdict cannot be supported except by such evidence.</p> <p>But where, upon the.questions of fact submitted to the jury being found in the plaintiff’s favor, he is entitled to recover some amount of damages, and the jury find a verdict in his favor which, under the circumstances shown by unobjectionable testimony cnnnpt be regarded as excessive, it being clear that the jury, in forming their verdict, may have wholly disregarded the evidence objected to, as they were directed to do, and as was their duty to do, it will be presumed that they acted in accordance with their duty, and that-their verdict was based solely upon the evidence properly before them, and by which it was warranted.</p>

The plaintiff had a verdict, and a motion was made upon the judge’s minutes for a new trial. The motion having been denied, leave was obtained by the defendants to make a case and exceptions; and the entry of the judgment was stayed until the hearing and decision of the appeal from the order denying the new trial.

APPEAL by the defendant from an order made at a special term, overruling a demurrer' to the complaint.

CASE submitted pursuant to section 372 of the Code of Procedure, for the purpose of obtaining a judicial construction of the last will and testament of Jacob Vannorsdall, and to arrive at the true intent and meaning of the testator, as to 'the disposition of his real estate.

<p>Warehousemen are bound, like all bailees who receive a benefit from the bail-ment of goods, to exercise ordinary care and diligence, and are responsible only for ordinary neglect,</p> <p>The basis of the claim against a warehouseman for neglect in the care of goods, is that he is in possession of the goods as a depositary for hire. It is in respect to this right to receive compensation for storage, that he is liable for injury to the goods, or their loss in consequence of, or arising from, his neglect.</p> <p>A carrier of goods by canal, when within about a mile and a half of the place of delivery, with the goods, presented the bill of lading to the warehouseman to whose care the goods were consigned, and informed him that his boat could proceed *no further, on account of the ice in the canal, and requested the warehouseman to pay his charges for freight. The latter thereupon paid such charges, and gave a receipt on the shipping bill, for the goods, and the boat was left in the charge of a third person. Subsequently the owner paid the warehouseman his charges on the property, and his advances to the carrier for freight. The goods, while remaining on' the boat, were damaged by water. Held, that when the warehouseman’s charges and advances for freight were paid by the owner, the latter was entitled to take immediate possession and control of the goods, and they were not, after that time, subject to any lien or claim of the warehouseman for storage, or other services, nor was he liable for any loss or damage happening to such goods.</p> <p>Held, also, that there was no consideration for any contract by the warehouseman to take care of the'goods, and none could be implied. That there was no duty, on his part, to take care of the property, because there was noassumpsit to pay for such care, and no lien in his favor could exist upon property remaining in the possession of the carrier.</p>

demurrer to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The action was brought to recover the sum of $21,916.81, that being the amount of a tax assessed against the plaintiffs in the year 1862. The plaintiffs claimed exemption from taxation on the ground that their capital stock, upon which the assessment was made, was invested in the stocks of the United States.

The following opinion was given by Ingraham, J. The sheriff, under section 243 of the Code, is entitled to poundage on the amount paid on the settlement of an attachment suit. The plaintiff held the drafts, and the attachments were issued to collect them. A settlement was made, viz. to pay the drafts if the suits were discontinued. This was done, and the money paid. That entitled the sheriff to poundage on the sum paid.

The action was ejectment to recover the possession of certain premises in possession of the defendant under' a contract of purchase, upon the allegation that La Fon'tain, the purchaser, had made default in the second payment as provided for in the contract.

The plaintiff’s claim was for a conversion of a quantity of nursery trees growing upon the land of the defendant. The land originally belonged to Ephraim C. Fitzgerald, and he leased ten acres to H. M. Banny and H. M. Conkling for a nursery, from year to year. The lease appears, to have been in writing, but it was not produced or proved on the trial.

MOTION to confirm the report of a referee, as to the disposition of the surplus moneys arising on a mortgage sale. The referee found that Albert Michel and Antoinette C. Michel were married in 1859. That in September, .1860, they had a child born, who died in the month fol-. lowing its birth. That in July, 1861, Antoinette C. Michel, the wife of Albert Michel, then being childless, made a will, by which she devised her property to her husband, she then owning real estate.

The complaint was upon a promissory for $200, made by the defendant Walker, dated May 1, 1866, payable three months after, date, with, interest, to the .order of John P. Van Allen, which note Van Allen indorsed and transferred to one D. P. Garrison, who indorsed and transferred it to the plaintiffs.

APPEAL by the defendant from a judgment entered on the verdict of a jury. This action was brought, under the provisions of the Code of Procedure, for the claim and delivery of personal property, consisting of liquors, casks, bottles, &c. The plaintiff is the wife of Leman B. Garlinghouse. Her husband has been for many years insolvent. The defendant is, and was, when the alleged cause of action arose, sheriff of Ontario county.

THIS is an appeal by the defendants from a judgment of the county court of Albany county, affirming a judgment of the justices’ court of the city of Albany.

' The action was brought to recover certain sums due to various persons from the firm of “ Thurber, Eice & Co.” and which the defendants had assumed to pay and discharge by their bond of indemnity executed to the plaintiff, March 24, 1865, the plaintiff on that day having sold out -his interest in said firm to the defendant John T. Jenkins for $5000, subject to the payment of the company’s debts; and the defendant Justin Corbin having signed said bond as security, by which…

THIS action was commenced in a justice’s court, to recover damages arising from the negligence of the defendant occasioning the death of the plaintiff’s horse. It was tried March 11, 1867. The defendant, by his guardian, among other defenses, pleaded a former action, for the same cause, and judgment, in bar.

THIS ' is an action to recover for waste, alleged to have been committed by cutting timber, and was tried without a jury at the Steuben circuit, in Hovember, 1866, a trial by jury having been waived by the parties.

The plaintiff was the assignee of a mortgage made by one Hiram Pomroy, and she, by her agent, Daniel Pomroy, employed George Sprague, who was an attorney of this court, to foreclose the mortgage by advertisement, pursuant to the statute. Sprague caused a notice of the sale to be published, appointing the 8th day of September, 1866, for the day of sale.

THIS action was commenced before a justice of the peace of Ontario county. The complaint was for goods sold to the defendant. The answer denies the complaint, alleges payment, and that the goods referred to in the complaint were sold to the defendant by and in behalf of one Stannard. The return of the justice shows that, in January, 1866, the plaintiff was a manufacturer of paper bags, residing in the city of Hew York.

The complaint alleged that the plaintiff, in July, 1866, sold and delivered to the defendant, upon his premises, eighteen and one half cords of wood, at ¡$3.50 per cord, which the defendant refused to pay for. The answer denies the allegations of the complaint. On the trial before the referee, the defendant objected to parol evidence of the contract, it not appearing that any of the -wood had been delivered or paid for. The objection was overruled, and the defendant excepted.

TITHE deceased, Catharine Loomis, was in the year 1853 JL married to the defendant. Her maiden name was Catharine Coon. Before she was married, in the year 1853, she made a will—leaving $750 in money, which, after she was married to the defendant, came to his possession. She died in November, 1860, leaving the defendant her surviving husband. Her said will was proved before the surrogate of Oneida county.

<p>No unvarying rule, as to the amount of proof necessary to establish the execution of a will can be laid down which is to control every case, as the circumstances of each case must differ from any other. Hence it becomes the duty of the court to ascertain, from all the facts and circumstances, whether the instrument offered is established with reasonable certainty,_and if it is, to receive the same.</p> <p>Where all the three subscribing witnesses to a will executed since the Revised Statutes took effect are dead, proof of the signatures of two of them, with a perfect attestation clause, and other circumstances tending to favor the probability that the will is genuine, are sufficient, after a great lapse of time, to justify the reception of the will as evidence, without proof of the signatures of one of the subscribing witnesses and the testatrix.</p>

The complaint, in substance, is that the plaintiff gave his note for $200 to one John B. Gregg, payable to him or bearer, two years after date, with annual interest; date of note April 6, 1864; that he paid the note in full to Gregg, prior to January, 1865, before it became due; that Gregg died, and the note came into the hands of the defendant, as executor; and that he, with notice and knowledge of the payment of the note,- did unlawfully and fraudulently, and with intent…

The present defendant sued the present plaintiff, in a justice’s court, to recover $45, the unpaid portion of the price of a horse sold by Knight to Burwell. The defendant in that action, among other’ answers, set up as a defense a breach of warranty of soundness of the horse, ■ made by Knight upon the sale. The trial was adjourned, and on the trial Burwell, the defendant, did not appear.

<p>THIS action was brought by the plaintiff to obtain a decree of this court declaring void his marriage with the defendant, for the reason that she, at the time of such marriage, had a husband living and from whom she had never been divorced. The complaint also avers that the defendant expressed herself to be a widow, and concealed the fact that she had such living husband from the plaintiff. The answer of the defendant admits the marriage with the plaintiff; admits the former marriage with one Warner, and that he was living; admits that no children were born of the marriage of the parties to this action, and denies the other allegations of the complaint. After the issue thus made, the defendant applied at special term or chambers, for a counsel fee.and alimony, and the applicatipn was denied. The defendant then applied, by motion, for leave to amend her answer, by inserting an allegation that she told the plaintiff, before her marriage with him, of the previous marriage with Warner, and of her ignorance whether he was living or dead; and that the plaintiff was insane at the time of the commencement of this action; and also for leave to renew her motion for counsel fee and alimony.</p> <p>The motion was granted, as to the amendment, and a counsel fee of $1000 ordered, and also alimony to the de-. fendant at the rate of $2500 per year, payable quarterly in advance. The plaintiff appealed from this order</p>

IR each of these cases an order to show cause was granted returnable at a future day, and a temporary injunction was granted pending the motion, in one of these cases, by JusticeCARDOZO, and in the other cases by Justice Barnard. In each case the order required cause to be shown before the justice granting the order in a place specially designated therein.

<p>Where the contract and specifications for paving an avenue did not provide for taking up the gutter stones and paving in their place, but on the contrary, ■required the contractor to readjust the gutter stones wherever necessary, without charge, and in violation of this he removed the gutter stones and substituted the pavement with the assent of the water purveyor, at the request of some of the owners; Held,, that there was no authorty for this, and it was outside of the contract.</p> <p>It is erroneous for assessors to include in their assessment a charge for making the assessment.</p> <p>It is irregular and erroneous for the commissioners of the Croton Water Board to certify the work to have been completed and accepted, when they have rejected the whole street for a distance of pne block. ' The taking a bond to do the work, and withholding a part of the money will not obviate the difficulty.</p> <p>Although the court does not, in a proceeding under the act of 1858, {laws of 1858, oh. 338,) inquire whether the work was well done, or done according to the contract, so far as relates to the material or workmanship, yet when it appears that the certificate was given with a full knowledge that the work was not finished, it is a violation of the contract which prbhibits the contractor from receiving payment until the whole work is completed, and is unjust to the owners who are assessed for its payment.</p>

MOTION to confirm the report of the commissioners appointed to acquire land for the widening and laying out of the Bloomingdale road, or Broadway, between Fifty-ninth and One hundred and Fifty-fifth streets in the city of New York; the road to be of a general width of one hundred and fifty feet.

<p>Where the plaintiff, being the owner of land, gave the same, by parol, to the defendants, and the use thereof, so long as they, or either of them, should live, and the defendants went into possession of the land, and occupied it, made improvements and paid a portion of the taxes thereon; Held, that this was a gift so far executed as to entitle the donees to a specific performance of it by the donor.</p> <p>Held, also, that the acceptance of the land by the defendants as a gift, and their occupancy of it and their improvements upon it, pursuant to the gift, with the approbation of the donor, rendered the gift irrevocable ¡ it being executed by the parties, except that no deed was delivered.</p> <p>Held, further, that the gift partook of the nature of a contract, and became binding upon the donor as a contract, by a good and valuable consideration moving from the donees; by their changing their place of residence, and spending several years upon the land when it yielded but very little; and by their making valuable improvements on the land, and paying taxes thereon. That the donees were, in equity, entitled to a life estate in the premises, and that it would be against conscience to allow the donor to revoke the gift; and that it should be specifically enforced, by a decree directing the execution of a deed by the donor, conveying the premises to the donees, to have and to hold the same so long as they or either of them should live.</p>

<p>A writ of prohibition issues, to forbid a court and party to whom it is directed, from proceeding in any matter designated, then pending before it. It will lie to prevent the exercise of unauthorized power by an inferior tribunal, in cases where it has jurisdiction, as well as where it has not jurisdiction.</p> <p>The writ does not issue, of course; it is always in the discretion of the court, and should not issue where the party has a complete and adequate remedy at law.</p> <p>Under a statute authorizing a certain town to issue bonds, to aid in the construction of a railroad, which provides that on the application in writing of twelve or more freeholders, it shall be the duty of the county judge to appoint, under his hand and seal, three freeholders, residents of the town, to be commissioners of such town, to carry into effect the purposes of the act, the action.of the county judge, on such application, is judicial. It is conferred by the statute upon the office" of county judge, to be exercised "under its seal. The duty requires the exercise of judgment and discretion in the selection of commissioners; and in no sense is the act of selecting them ministerial.</p> <p>If the act under which such application to the county judge is made is unconstitutional, or otherwise unauthorized, that officer should not be permitted to proceed under it.</p> <p>The legislature of this state has no power to confer upon towns authority, absolute or conditional, to issue bonds and donate the proceeds to a private corporation.</p> <p>Though it .were conceded that the legislature has the power to enable towns to subscribe for stock in a railroad corporation and issue bonds to pay for the same, it would not follow that it might pass laws enabling towns to issue bonds and donate the proceeds, or if it did pass such laws, that any bonds issued or other act done under that authority would be valid against the town. Per James, J.</p> <p>The act of the legislature of this state entitled “ An act to authorize the town of Saratoga, in the county of Saratoga, to issue bonds to aid in the construction of a railroad from the village of Mechanicsville to intersect the Glens Falls Railroad,” passed April 27, 1868, (Laws of 1868, eh. 334,) is unconstitutional and void.</p> <p>That act does not assume to take the money of the tax payers by due process of law, nor in virtue of the right of eminent domain; and it does not come within the legitimate scope and purpose of the taxing power of the government. It, therefore, follows that in passing said-act, the legislature exceeded its powers; that the act was unauthorized; and is without validity or force.</p> <p>The property of the citizen cannot be taken from him without his consent, except by due process "of law, or by eminent domain, or by taxation. Against every other mode he is protected.</p>

The action was trover, for the conversion of fifteen sheep. The defense was a general denial. The justice rendered a judgment for the plaintiff, and the defendant appealed to the county court, where a new trial was had. The plaintiff proved his ownership of the sheep; that they were found in the defendant’s possession; and that a demand thereof was made of the defendant’s husband, (she being a married woman,) in her presence, with which he refused to comply.

THIS action was brought to recover damages for an unlawful entry upon, and use of certain premises claimed by the plaintiff, from about the year 1859 to the year 1866. The evidence showed title in the plaintiff, and occupancy of the premises by the defendant.

This is an action of trespass to recover damages for cutting timber on land claimed by the plaintiff, and the question in dispute is in whom is the title to the land where the timber was cut, and this depends on the location of the boundary line between lands of the plaintiff, and lands of the party giving the defendant license to cut the timber, and who for the purposes of the injury may be called the defendant.

<p>Where a memorandum, made by a witness in his memorandum book, of what took place at an intervivew was made on the evening of the day on which the interview occurred, and corroborates the evidence giveñ by the witness, on the trial, it may be received and relied upon for that purpose.</p> <p>The just administration of the laws requires that where there is a decided preponderance of evidence upon one side, that should always be followed, where the witnesses on both sides are equally candid, intelligent and positive in their statements.</p> <p>Where the preponderance in the evidence is so decided as to lead very naturally to the conclusion that injustice has been done to a party, by the judgment recovered against him, the judgment, under the well settled rule applicable to such cases, should be set aside, and a new trial directed.</p> <p>Whenever there is good reason for believing that a referee has mistaken the import and preponderance of the evidence given on the trial, and it is evident that injustice has been done, the judgment entered upon his report should he set aside.</p> <p>The rule that no evidence is admissible which does not tend to prove or disprove the issue joined, excludes all evidence of collateral facts, or those which are incapable of affecting any reasonable presumption or inference as to the principal fact or matter in dispute.</p> <p>Where the issue to be tried was, whether the defendants agreed to store, insure and sell the plaintiff’s goods for a commission of five per cent; Held that evidence offered, to prove that broker’s rates of commissions at the time and place in question, were from five to seven per cent, without including either storage or insurance, was properly excluded.</p>

The relator is an inhabitant and resident of the town of Warsaw, in Wyoming county. And as such he was assessed by the defendants, who are the assessors of that town, as the owner of personal property to the amount of $50,000. Of this amount, $42,000 were assessed for personal property or securities in the hands of his agents in the states of Illinois and Wisconsin, where such securities were taken.

1XHIS action is upon a recognizance, dated the 19th of . May, 1865, taken at chambers, by and before the special county judge of Chautauqua county, conditioned for the appearance of one Warren, at the then next court of oyer and terminer, who stood indicted for perjury. The defendant executed the bond as one of the sureties therein. The complaint contains the necessary averments to charge the defendant, on account of the non-appearance of Warren.

order. This action was brought to settle a complicated controversy relative to the affairs of the Erie Railroad Company, the merits of which are not important-.to the- question of practice determined upon this appeal.

MOTION to continue an injunction restraining the payment of a dividend. The plaintiffs, claiming to be the owners of bonds and common stock of the Chicago, and Northwestern Railway Company, ask an injunction against the defendants, to restrain them from paying a stock dividend declared by them on the preferred and common stock. The dividend was to be paid to each class of stockholders, in the same kind of stock as that held by them.

THIS was an action for slander. The words complained of are set forth in the opinion of the court.

11HIS was an action to recover damages for an injury . sustained by the plaintiff in consequence of a defective sidewalk in the village of Corning.

THIS action was commenced May 28, 1867, by service of summons and complaint, and temporary injunction, granted by Hon. B. Darwin Smith, justice, restraining the defendants, and all persons acting under their authority, from collecting an assessment levied upon lots owned and occupied by the plaintiffs, (between eighty and ninety in number,) on South avenue, in the City of Bochester, for an alleged deficiency in a previous assessment on Mt. Hope avenue, for the construction…

APPEAL by the defendant from an order made at a special term, granting a new trial. The facts sufficiently appear in the opinion of the court.

•,r The action was brought to obtain the specific performance by the defendant of a parol agreement made by him with the plaintiffs, at Bochester, 2L Y. on the 16th day of January, 1867, for the conveyance by the defendant to the plaintiffs, of a shop right under a patent for an improved clover machine. The defendant took issue upon the consideration of this agreement, which is the principal issue in the case.

APPEAL by the defendants from a judgment of the Monroe county court.

THE complaint in this action contains two counts. The JL first alleges an agreement in writing, executed by the plaintiff and defendant, dated the 8th of April, 1864, wherein the plaintiff agreed to furnish and deliver certain machinery therein specified, to the defendant, on or before the 1st day of August, then next, with a stipulation that if the plaintiff should use all proper diligence to complete the same by the 1st of August, and should fail, nothing in the agreement…

THIS was an action for slander, in charging the plaintiff with having “sworn falsely, sworn to a lie,” in an action between the parties, before-a justice of the peace, in which the present plaintiff was sworn and examined as a witness on his own behalf.

<p>Words imputing to a mechanic want of skill, or knowledge in his craft, are actionable per se, if "they are clearly shown to have been spoken with reference to the plaintiff’s occupation, and the employment is one requiring peculiar knowledge and skill.</p> <p>In this respect the authorities recognize no distinction between a learned profession and a mechanical trade; and manifestly there is none, in principle. Per J. C. Smith, J.</p> <p>Thus, to utter words charging one who is a mason by trade and occupation, with gross want of skill, knowledge and capacity in his craft, and to say, of and concerning him and his trade, “ that he was no mechanic; that he could not make a good wall, or do a good job of plastering; that he was no workman ; and that he was a botch,” is actionable per se.</p>

<p>A husband who is ready, able and willing to support his wife, and who gives her no just cause or .occasion to abandon him or leave his bed and board, cannot he compelled to support her elsewhere than at his own house or home, if he has one, by any private person, or by the town or county; whether she be sane or insane. His liability for necessaries provided by other persons, for her support, rests entirely upon the ground of his neglect or default.</p> <p>The certificate of a county judge, given in pursuance of section 26, of the “Act to organize the State lunatic Asylum,” passed April 7, 1842, (laws of 1842, p. 141,) as the same has been modified by subsequent statutes, is an adjudication in rem upon the subject to which it relates, and is, it seems, prima fade evidence of the existence of the facts asserted therein, as against all persons notified to attend the hearing and investigation before such judge.</p> <p>As the statute does not declare what shall be the force or effect of such certificate as evidence, or whom it shall bind, it must stand upon the same basis with all other judgments or adjudications. It must bind those who were parties and privies to the proceeding, and had an oportunity to litigate' the questions involved in such investigation and adjudication. No one else can be bound by it.</p> <p>If such certificate be prima fade evidence of the facts it recites, and affirms or finds, it is not conclusive on a party who has no notice of the proceeding. Such party is entitled to disprove the facts alleged or stated in the certificate upon which the jurisdiction of the judge depended.</p> <p>The jurisdiction of all courts and officers exercising judicial functions is open to investigation, question and inquiry, whenever their proceedings are set up or sought to be enforced; and when there is no jurisdiction, such proceedings are absolutely void.</p> <p>It is a fundamental rule of law, and of common justice, that no one shall be concluded by a legal judgment, decision or adjudication had or made in any suit or proceeding to or in which he was not a party or privy, and of which he had no notice; or in respect to which lie had no opportunity to defend himself or to litigate the question involved; or upon which his liability depended.</p>

<p>R. and T. being adjoining owners of land, T. called upon R. in reference to building a line-fence. R. being a cripple, unable to leave Ms house, and not knowing where the boundary line between them was, sent T. to B. to have the latter point out the line, saying that B. knew where the line was. B. accordingly pointed out the line to T. who built a fence there, and from year to year improved his land up to the fence. The evidence showed that R. never knew where the line had been pointed out or located, nor what T. had done in the way of fencing and improving the land. It turned out that B. did not know where the line in fact was, and pointed out the wrong line. Seld that upon these facts the elements necessary to create an estoppel in pais were entirely wanting.</p> <p>Seld, also, that T. was as much bound as R. to know where the true line was, between the two lots, and that B. was as much the agent of T. as of R.</p> <p>Seld, further, that as it did not appear from the case that there was any difficulty in ascertaining the true line, by survey and measurement, it was not a case where the line was uncertain, and difficult to discover, but a case where T. instead of taking any steps to ascertain, chose to take the word of B. and thus, by the mistake of the latter, an errroneous line was located and the division fence built upon it.</p> <p>That R. not knowing where the location was made, nor that T. was making improvements upon the land on his side of the line fence, he was not called upon to speak, or to give notice; and his silence, under the circumstances, implied no acquiescence in T.’s proceedings, and no wrong.</p> <p>There is no case to be fonnd where an erroneous boundary line, established under such circumstances, has been held binding and conclusive on the ground of estoppel in pais, short of twenty years’ possession under claim of title. Per Johnson, J.</p> <p>The mere circumstance that one has made improvements upon the land of another, under an honest, but erroneous belief that he was the owner, forms no ground for transferring the title of one person to another; nor for estopping the owner from reclaiming his own. Per Johnson, J.</p> <p>Possession and claim of title under an erroneous location, short of twenty years, is not sufficient to establish title in the occupant, as against a valid paper title; unless such location was made, and the possession under it has been continued, under such circumstances as to estop the party having the paper title from asserting his claim against such occupant.</p> <p>An exception to a single word, in a sentence of the judge’s charge, which has no bearing upon any issue, or question in the case, will not be allowed or entertained.</p>

<p>APPEAL by the plaintiff from a judgment of the county-court of Steuben county, rendered on appeal from a judgment of a justice of the peace, and from an order denying a motion for a new trial.</p> <p>The action was brought for the conversion of a quantity of railroad ties; the plaintiff claiming title to such ties by virtue of a purchase from one Isaac Allison, who had bid off the same at a sheriff’s sale on an execution issued against the property of C. W. Daniels, who was claimed by the plaintiff to have- been the owner of the ties' at the time of such sheriff’s sale, in the spring of 1862. The defendant, by his answer, denied the allegations of the complaint, and alleged that the ties were not the property of the plaintiff, but belonged to him, the defendant. The justice rendered a judgment in favor of the defendant for costs, $4.50. The defendant appealed to the county court, and the action being upon the calendar of that court, for trial, the issues were referred to Harlo Hakes, Esq. to hear and determine.</p> <p>On the trial before the referee, the appellant offered in evidence a transcript of a justice’s judgment in an action brought by Isaac Allison against Charles W. Daniels, purporting to have been rendered on the 23d day of January, 1862, in favor of Allison, against Daniels, for a cause of action accruing on contract, for $183.25, damages and costs, with the certificate of the county clerk that such transcript was filed in his office on the 15th of February, 1862. The counsel for the defendant objected thereto as immaterial, unless the original entry in the justice’s docket were introduced ; which objection was overruled by the referee, and the counsel for the respondent excepted. The said transcript, certificate and indorsement were then read in evidence. The counsel for the plaintiff then offered in evidence a certified transcript of the docket of said judgment in the county clerk’s.office, to which the counsel for the defendant objected the same as above; which objection was overruled by the referee, and the counsel for the defendant excepted. The counsel for the plaintiff then read the said transcript and certificate thereto in evidence. Also an execution issued thereon, by the county clerk, and indorsements and certificates thereon, showing that the execution was satisfied. L. P. Weed, a witness sworn on the part of the defendant, testified as follows: “ I was an acting justice of the peace in the town of Oanisteo, in 1861 and 1862. This is my justice’s docket. I issued a transcript on the third of February, 1862. Ho other cause was tried before me between the parties. The entries on page 112 contain all the entries ever made by me in my docket in that suit. I never issued hut one transcript between the parties.” The counsel for the defendant then offered in evidence the proceedings and entries on page 112 of said docket. The counsel for the plaintiff objected on the ground that the same was incompetent and immaterial. The referee overruled the objection, to which decision and ruling the counsel for the plaintiff" excepted. The proceedings were then read in evidence, and were in words and figures following:</p> <p>“Isaac Allison v. Charles W. Daniels. 1861, Oct. 23,1 p. m. Parties appeared pursuant to an order of the court, and answered to-the suit. Bobert Brundage, for plaintiff, J. D. Millard, for defendant. Issue joined in writing. Adjourned by consent until Hov. 7, at 1 p. m. Adjourned by consent of parties to the 15th ot November, at 1 p. m. at which time parties appeared and a commission granted to examine Frederick K. Swarts, of Harrisburg, Pa. Commission made out and directed to Bichard Hummell and William Kern, Harrisburg, Pa. Suit further adjourned to January 23, 1862, at 1 p. m. at which time the suit was tried by jury. The following sworn .as jurors, [giving their names.]</p> <p>By consent of parties the jury retired without being in charge of a constable, and brought in a verdict in favor of the</p> <p>plaintiff and against the defendant, for damages,</p> <p>$175 00</p> <p>Justice’s cost,.......6 00</p> <p>Const, cost,........1 25</p> <p>Plaintiff’s cost,.......1 00</p> <p>$183 25</p> <p>February 3, 1861, transcript given, . . 50</p> <p>Received the costs in the above suit and notice of appeal, and $2 for return for plaintiff. L. P. Weed, J. P.”</p> <p>And the said witness then further testified as follows; “I kept minutes of the trial and proceedings and evidence. I have not got them with me. I cannot tell all I entered in the minutes. I cannot say whether I did or did not enter the judgment in the minutes. I think I made these entries in the docket at the time the verdict was brought in.” The counsel for the plaintiff then asked the witness the following question: “Did you make any other entry of judgment in this action except what you made on page 112 of this docket ?” To which question, and the answer thereto, the counsel for the defendant objected, on the ground that the entry, if any, would be the best evidence, and as immaterial. The referee sustained the objection; to which decision the counsel for the plaintiff excepted.</p> <p>The referee found and decided that Charles W. Daniels, in the years 1861 and 1862, was the owner, or in possession of, a piece of land, situate in the town of Canisteo, in the county of Steuben, upon which was growing a quantity of oak and hemlock timber, suitable for railroad ties. That Daniels entered into an agreement with the defendant, (not in writing,) to cut, manufacture and deliver to the defendant one thousand hemlock ties, for which he was to pay twelve cents apiece, and to pay the same as the work of getting them out progressed. The ties to be delivered on the side of the railroad track, in condition for loading on the cars. That Daniels cut, hewed and hauled out upon the lands of John Crosby, timber for about eight hundred ties previous to February, 1862, the trees were not cut up into ties, but some sticks were long enough to make five ties, and some of different lengths, and nine tenths were more than one tie in length; that the ties were in this condition until after the 11th day of February, 1862, when they were cut up and piled on the bank of the railroad by Daniels. That on the fifth day of February, 1862, a transcript, in due form of law, was filed in the clerk’s office, of Steuben county, and judgment duly docketed in the office of the said county court, in an action wherein Isaac Allison was plaintiff, and Charles W. Daniels was defendant, for the sum of $183.50, the judgment from which said transcript was issued was rendered by L. P. Weed, a justice of the peace, on the 23d day of January, 1862. That an execution, in due form of law, was issued by the clerk of Steuben county to the sheriff thereof, and was levied upon the ties mentioned in the complaint by V. B. Wetmore, who was one of the deputies of the sheriff* of Steuben county. That the said ties were sold by the said sheriff, and purchased by Isaac Allison, who within a few days, and before the time of commencement of this action, sold and transferred all the interest in the said ties to the plaintiff in this action. That when said levy was made, the timber lay upon the lands of the said John Crosby; some of the timber was long enough for five ties, and most of the pieces long enough for two ties and upwards. The said referee also found and decided, that the timber was transferred to the defendant and became his as soon as it was severed from the stump. To which decision the counsel for the plaintiff excepted. The referee also found and decided that the ties were delivered to the defendant on or before the 8th day of February, 1862, and that they then became his property. To which decision and ruling the counsel for the plaintiff excepted. The referee also found and decided' that the proceedings and judgment in the action before L. P. Weed, were void. To which decision the counsel for the plaintiff* excepted. And also that the transcript issued by the said justice was without any foundation, there being no valid judgment to sustain it. To which decision the counsel for the plaintiff excepted. The referee also found and decided that the judgment of the county court, upon which the execution was issued to the sheriff, and upon which the ties were sold, was void. To which decision and ruling the counsel for the plaintiff excepted. The referee also found and decided that the execution issued by the county clerk, by virtue of which the ties were levied upon by Deputy Sheriff Wetmore, was void. To which decision the counsel for the plaintiff excepted. The referee also found and decided that the sale of the said ties, and the purchase by the appellant, were void, and that the plaintiff was not entitled to recover in the action. To each of which decisions the counsel for the plaintiff also excepted.</p> <p>A motion was made in the Steuben county court, at the June term, for a new trial, upon a case and exceptions, when an order was duly made and entered by the said court denying said motion; from the decision denying said motion for a new trial, the appellant appealed to the Supreme Court.</p>

THIS action was for an assault and battery and false imprisonment. The defendant attempted to justify under a warrant, and its indorsements, issued by A. W. Casey, a justice of the peace, July 8, 1866, for the arrest of the plaintiff H. W. Abbott, on a charge of assault and battery.

ACTION against the defendants, as executors, &c. to recover the.amount of a legacy.

ON the 24th July, 1861, Richard H. Appleby sued William Marratt in the Supreme Court, and procured an order of arrest, and the plaintiff William H. Robinson became bail on arrest. Held: that the contract sued upon being executory, and there being no breach at the time it was given to the defendants, the plaintiffs could not recover upon a breach happening after that.

THIS action was commenced before a justice of the peace, who gave the plaintiff'judgment for $80, besides costs. Upon appeal it was affirmed by the county court of Livingston, and the defendant appealed to this court.

<p>Where it is proved, in an action of ejectment brought by the people, that an individual under whom the defendant claims title, was not an alien, but a naturalized citizen, both at the time of the grant to him and of his grant to the defendant’s grantor, the people, in their sovereign capacity, should be presumed to have known that fact; especially where it appears that such person had represented, and exercised, their sovereignty, both in the legislative and judicial departments of the government for a number of years.</p> <p>The treaty between the United States and the government of Great Britain, commonly known as Jay’s treaty, concluded and ratified by our government in 1794, expressly provided that British subjects, then holding lands in the United States, should continue to hold them according to the nature and tenure of their respective estates and titles in such lands, and might grant, sell or devise the same, as they might respectively choose to do. When this treaty was ratified, it became a part of the supreme law of the land, and rendered the title of every alien British subject, to lands in every part of the United States, then held, not only valid, but alienable by him, the same as though he had been a native born or naturalized citizen.</p> <p>The act of the legislature of this state, passed April 20,1798, expressly authorized the conveyance of lands to aliens, and made conveyances to them valid to vest the estate thereby granted, in such alien, “ to have and to hold the same to his, her or their heirs and assigns forever, any plea of alienism to the contrary notwithstanding.” (4 W. Y. Stat. at Large, 294.)</p> <p>Under this statute Sir William Pulteney, who was an alien, took and held a perfectly valid title to all the lands embraced in the deed to him from Charles Williamson and wife, dated March 31, 1801; he having complied, fully, with the conditions prescribed in the second section of the aforesaid act, and had his conveyance recorded, in the office of the secretary of state, within twelve months after the date thereof.</p> <p>The complete and perfect validity of the title, in Sir William Pulteney, has been often affirmed by the courts of this state; and the whole question having been carefully examined, and the validity of the title distinctly affirmed, in the case of The Buhe of Cumberland v. Craves, (7 N. Y. Hep. 305,) that decision, by the court of last resort, ought to put the question of the validity of such title at rest, forever. Per Johnson, J.</p> <p>Where, in an action of ejectment brought by the people, it was admitted by the pleadings that a third person held the title of the premises, in 1792, and that consequently it was then out of the plaintiffs, if they had ever been invested with it; Held that the mere fact that the lands in question were at the time of commencing the action unoccupied and uncultivated, raised no presumption whatever that the plaintiffs had become re-invested with such title.</p> <p>The presumption in such a case is, that the title remains out of the plaintiffs, until the contrary is shown, affirmatively. The burden of proving reinvestment is on the plaintiffs. The fact that the land is wild, and not actually occupied by any one, works no forfeiture of title, and no escheat. Nor does it raise any presumption in the people’s favor, where they are shown to have been once divested.</p> <p>In an action of ejectment, brought by the people, the plaintiffs cannot recover upon the ground that the Indian title to the lands in question has never been extinguished; where it is not pretended that the State has ever acquired the Indian title, by any purchase or treaty, but on the contrary, it is claimed that the fee of such lands is still in the six nations of Indians.</p>

The action was brought by the plaintiff, as executor of Stephen Chase, deceased, to foreclose a mortgage given by the defendants to the testator, to secure the payment of $2166, with interest. The following facts were found by the referee: That on or about the 2d clay of April, 1851, the defendants, James Ewing and Mary A. his wife, executed, acknowledged and delivered the mortgage in the complaint mentioned to the plaintiff’s testator, Stephen Chase, therein named.

APPEAL by the defendant Charles Roderick, from a judgment entered on the verdict of a jury. The action was brought against Charles Roderick and Samuel J. Roderick, upon a promissory note in the words and figures following: • “ $240.65. Rochester, 3d Rov. 1865. One month after date, we promise to pay to the order of Yibbard, Fiske & Co. two hundred and forty dollars at the Flour City Rational Bank in Rochester, value received.

IN June, 1865, the plaintiff, in traveling, staid all night at the hotel kept by the defendants in Jersey city in the state of Hew Jersey. The plaintiff alleged and claimed on the trial that he was a guest in the defendants’ house, the night he staid there, and lost nearly $200 in money, while sleeping in the room assigned him.

mi-IE plaintiffs are apple dealers residing in Havana, JL • Schuyler county, Hew York. The defendants are dealers residing at Middletown, Orange county, Hew York.

THE plaintiff is one of six heirs at law of John Kortright, deceased, who conveyed the lands in question to the defendant’s grantor, subject to an annual rent charge thereon, and the right of re-entry in case of non-payment of rent. This action of ejectment is brought by the plaintiff' to recover possession of her one-sixth of said lands as such heir, no rent having been paid since 1854.

THIS action was brought to recover on a fire insurance policy of $3000, $835 of which sum was upon the buildings and fixed machinery of a Hew Berlin cotton mill, and “$2165 on movable machinery therein, as per survey on file atthe office of” the defendants’ agent. This policy was given by the defendants to “ estate of Daniel Boss,” and the defendants had notice of $23,000 insurance, in all, upon the same property.