Volume 51 — New York Reports

<p>Where in an action against two or more defendants upon a joint contract the summons is served only upon one and judgment is perfected as prescribed by section 186 of the Code, a second action may be brought against all the defendants. The special remedy prescribed in such case by sections 375 to 381, inclusive, of the Code, is not inconsistent with the remedy by action, and a prohibition against such action will not be implied therefrom. The new remedy given by these sections is cumulative only.</p>

(Reported below, 44 Barb., 268.) The action was brought to recover the value of certain cattle, trucks and a sled, alleged to have been wrongfully taken and pon verted by the defendant. The defendant, by his answer, alleged that he bought the property at a sale by the sheriff of Livingston county, under two executions duly issued on two judgments recovered against Philemon F. Woodward, to whom the property belonged, and that the claim of the plaintiff was fraudulent and void.

x This action was- brought to recover the amount of a tax levied and collected of plaintiff upon an.alleged illegal assessment made by defendants as assessors of the town of West Seneca, Erie county. During the year 1864, the defendants were the assessors of the town of West Seneca.

The action was brought for the specific performance of a contract between the plaintiff and defendant for the sale of a tavern stand and about an acre of land, situate at Wills-borough, Essex county. The defendant, by her answer, alleged her coverture, and that the premises were subject to mortgage incumbrances amounting to $3,000.

This action was for fraud. The complaint alleged, in substance, that the defendants combined to procure by fraud, from the Comptroller, a charter for the Webster Fire Insurance Company, and for that purpose procured worthless mortgages and made pretended deposits of money to the amount of $150,000, with the understanding that said money should be paid back to its real owners and fictitious mortgages substituted as assets.

The action was brought to recover the possession of personal property.

<p>Under section 399 of the Code, as amended in 1860, in an action wherein a husband and wife were joined as parties plaintiff, the husband was a proper witness on behalf of the wife.</p> <p>Upon the trial by a jury of issues settled in an equity action, the court has no authority to nonsuit plaintiff. The jury must find upon the issues, and their finding must be presented to the court upon the final hearing. If proof is necessary to establish facts not admitted in the pleadings or found by the jury, such proof must then be given. The court using the findings of the jury for its information, finds the facts and decides the law substantially as if all the issues had been regularly tried before it, and exceptions may be taken in the same manner as if the case had been so tried, and findings not thus excepted to cannot be questioned upon appeal to this court.</p> <p>A. being about to sell certain premises of B. under a decree of foreclosure, it was agreed that A. should take up a prior mortgage and let B. have time for payment of the amount of such prior mortgage and of the decree and costs, for which forbearance B. was to pay $1,000, besides lawful interest. A. thereupon bid off the premises at the sale, conveyed them to the wife of B., who joined with B. in a mortgage thereon to secure a bond for the whole sum, including the $1,000. Held, that the transaction was usurious and the bond and mortgage void.</p>

This action whs brought to establish a right on the part of the plaintiffs to redeem certain railroad bonds sold by the plaintiffs to the defendants on the twenty-third day of July, 1856, by receipted bill of sale, of which the following is a copy : “Hew York, 23d July, 1856. “ Messrs.

This action was brought to recover damages for the loss of forty-three hogs out of a lot of hogs transported for the plaintiffs by the defendant, from Buffalo to Albany, in June, 1858. The hogs died from the effects of heat, the result of the negligence ol’ the defendant’s agents in not watering, wetting, washing and cooling off said hogs on the way to their destination.

<p>Defendant issued to plaintiffs a floating policy of insurance upon merchandise in any of the warehouses and while in transitu in any of the streets of New York, Brooklyn and Jersey City, subject to a condition in substance, that the policy should not extend to cover goods upon which there was any specific insurances, except as for as relates to any excess of value beyond the amount of such specific insurances, which excess was declared under the protection of the policy. A fire occurred in a warehouse wherein plaintiffs had merchandise to the amount ol $886,026, covered by specific insurances to the amount of $324,000; the amount of the loss was $274,192.46. Held, that the intent of the condition was to throw the loss upon the specific insurances unless it exceeded them in amount, and as the specific insurances exceeded the value of the goods destroyed, the interest insured by the policy was not affected and defendant was not liable to contribute any portion of the loss.</p>

(Reported below, 37 How. Pr. R., 88.) The action was originally commenced 1 by the plaintiff before a justice of the peace to recover damages for the unlawful conversion of a quantity of corn and oats. Judgment was rendered on the trial of the issues therein for $74.95 damages and $3.75 costs against the defendant, who thereupon appealed to the County Court of Chenango.

<p>The provision of the act establishing the Superior Court of the city of New York (§ 33, chap. 137, Laws of 1838), which authorizes the chief justice and associate justices thereof to perform all the duties which a justice of the Supreme Court is authorized to do out of term, is general and unrestricted, and authorizes them to perform all the duties of a justice of the Supreme Court at chambers. A justice of said 6ourt has authority, therefore, to issue an attachment on a lien claimed under the act providing for the collection of demands against ships and vessels. (Chap. 483, Laws of 1863.)</p> <p>A question as to the constitutionality of a law or as to the sufficiency of a pleading cannot be raised for the first time in the Court of Appeals. It cannot consider a matter or subject that has not been presented for adjudication to and determined by the subordinate court.</p> <p>The case of Broolcman v. Bamill (43 N. Y., 554), distinguished.</p>

<p>Appeal from the judgment of the General Term of the Supreme Court in the first district, affirming a judgment at the circuit in favor of the plaintiffs. (Eeported below, 48 Barb., 148.)</p> <p>The action was brought against the defendant as indorser of a promissory note made by Townsend & Gray, dated March 9, 1857, for $200, payable three months after date, to the order of the defendant and indorsed by him for the accommodation of the makers. The defendant denied that the necessary steps had been taken to charge him as indorser. Upon the trial in the city of ISTew York, before a judge and jury, the plaintiffs, for the purpose of proving that payment of the note had been demanded of the makers thereof, offered in evidence the notarial certificate of J. H. Platt, notary. To this certificate the defendant objected on the grounds: 1. That the sworn answer of the defendant denying the receipt of notice of demand and non-payment of said note was an affidavit within the meaning of the statute, and that therefore the certificate of said notary was not presumptive evidence of the facts therein contained. 2. That (if the sworn answer was not an affidavit within the meaning of the statute) an affidavit had been made and served upon the plaintiffs’ attorney, by mail, in January, 1864, after issue had been joined and the cause had been placed upon the calendar and notice for trial by both parties, which affidavit was not annexed to the answer and did not refer to the answer in any way.</p> <p>The facts stated being taken as true, the court decided that the defendant had not complied with the statute in respect to annexing the affidavit to the answer, and that the certificate was presumptive evidence of the facts therein stated, and overruled objections to the certificate and received the same in evidence. To which ruling defendant excepted.</p> <p>The plaintiffs then proved that the notary did not in person present the note for payment, but that it was done by James 0, Parker, Jr., the clerk of the notary, who was then deceased; that said clerk made an entry of the presentment and demand in the notary’s register, in the regular and usual course of business. The plaintiffs then offered in evidence the entries made by the said Parker in the register of said notary, to which defendant objected on the grounds: 1. That a notary could not perform his duties by a clerk. 2. That said entries were not admissible or competent evidence of the presentment of said note. The court overruled the objections, and the defendant excepted. The entries were then read in evidence, showing that the note was presented to Townsend, one of the makers, at then’ place of business, on the 12th day of June, 1857.</p> <p>The counsel for defendant then moved to strike out of the evidence the certificate, on the grounds that the note in question was not presented by said notary, and the certificate was therefore false. The court denied this motion and defendant excepted.</p> <p>The plaintiffs then proved that a clerk in their employ in due time served upon the defendant, by mail, a notice in the usual form of non-payment of the note; that the said clerk, before serving the notice, looked in the Sew York city directory for the name of the defendant and did not find it; that he then inquired of one of the makers of the said note for the address of the defendant, and was informed by him that defendant lived at Brewster’s, Putnam county; and he thereupon addressed the notice to him at that place.</p> <p>The plaintiffs then proved that on the 18th day of June, 1857, the defendant took a judgment by confession against the makers of the note to secure him against his liability upon this and other notes; in the confession of which judgment, verified by the makers, it was stated that the defendant was liable to pay the note by reason of his indorsement; that the defendant caused an execution to be issued upon the said judgment, and levied upon the property of the makers of the note; that subsequently Clark & West commenced an action against the defendant and the makers of the said note, to set aside the said judgment by confession on the ground of fraud; and the same was, by judgment in that action, set aside. In his verified answer in that action, the defendant stated substantially that the facts stated in the confession of judgment were true.</p> <p>The defendant objected to the proof of the confession of judgment, and to the judgment roll in the case of Clark & West against him and the makers of the note, as irrelevant and improper, and the court overruled the objection and received the evidence.</p> <p>The defendant gave evidence tending to show that the note had not been presented for payment, and testified that he did not receive notice of non-payment. He also proved that his usual post-office address, nearest to his residence, was Dykeman’s Station, Putnam county, about three miles from his residence; that there was no post-office by the name of Brewster’s; but that there was one by the name of Brewster’s Station about four and one-half miles from his residence; that both post-offices are in the same town in which he resided; and that he usually received his letters at the former office, but occasionally at the latter.</p> <p>At the close of the evidence defendant’s counsel moved to dismiss the complaint on the ground that there was no evidence of the presentment and demand of payment of the note, or of the proper service of notice of non-payment upon the defendant. The court denied the motion and defendant’s counsel excepted.</p> <p>The court then charged the jury, submitting to them two questions of fact, whether the note was at its maturity presented for payment to the makers, and whether notice of nonpayment was served upon the defendant.</p> <p>The court charged that if the notice was mailed to the wrong post-office, yet if the defendant in fact received it in due season, it was sufficient. To this there was no exception.</p> <p>The court also charged that the circumstance that the defendant took the judgment by confession and issued execution thereon, tended to show that he regarded himself liable as indorser. To this defendant’s counsel excepted.</p> <p>The counsel for the defendant requested the court to charge the jury that if they were satisfied that the note was never presented for payment to Mr. Townsend, the person mentioned in the certificate of the notary, and also in the memoranda of the clerk, then there was no evidence that said note was presented for payment, and that the defendant was entitled to recover, which was declined, and defendant’s counsel excepted.</p> <p>The jury rendered a verdict for plaintiffs. The defendant moved for a new trial at the Special Term, which was denied. He then appealed to the General Term and to this court.</p> <p>Defendant’s answer was an affidavit within the statute. (3 R. S., 5th ed., 474, § 35.) A notary cannot delegate his power. (Hunt v. Maybee, 3 Seld., 266; Onondaga County Bank v. Bates, 3 Hill, 53.) The entries of the notary’s clerk in the register were not proper evidence of presentment. (3 R. S., 5th ed., 474, §§ 34, 36; Otsego County Bank v. Warren, 18 Barb., 290, 295.)</p> <p>The confession of judgment was an adjudication as to Doane’s status, and conclusive. (Clemens v. Clemens, 37 N. Y., 73; 1 Greenl. Ev., § 208; Reed v. McCourt, 41 N. Y., 438.) Doane was not prejudiced by any act of plaintiffs, and cannot defend on the ground of want of notice. (Kelly v. Mayor of Brooklyn, 4 Hill, 263; 17 Wend., 94; id., 489; Keeler v. Barline, 12 id., 110; Haydon v. Agent Auburn Prison, 1 Sandf. Ch., 195; Troup v. Wood, 4 John. Ch., 228; McChain v. Duffy, 2 Duer, 645.) Defendant by taking the confession of judgment waived any rights he might have to object to presentment of notice. (Chitty on Bills, 535, 69th Am. ed.; Gunson v. Metz, 1 Barn. & Cress., 193; 17 Wend., 94; Chubbuck v. Vernam, 42 NH. Y., 36, 37; Horton v. Sheldon, 43 id., 93; Clemens v. Clemens, 37 id., 73; Code, §§ 382, 383; 2 Starkie’s Ev., 17-19; 1 Greenl. Ev., §§ 97, 208.) The notary’s certificate was presumptive evidence of the fact of presentment. (3 R. S., 474, § 35, 5th ed.; Arnold v. Rock River R. R. Co., 5 Duer, 207; Young v. Catlett, 6 id., 437; Lansing v. Coley, 13 Abb. Pr., 272; Bank of Commonwealth v. Mudgill, 44 N. Y., 520, 522; Wolfe v. Security F. Ins. Co., 39 id., 50.) The memoranda of the notary’s clerk were proper evidence. (Story on Prom. Notes, § 297; Chitty on Bills, 493, note o ; Hunt v. Maybee, 3 Seld., 269; Welch v. Barrett, 15 Mass., 380; Nichols v. Webb, 8 Wheat., 326; Nichols v. Goldsmith, 7 Wend., 160; Brewster v. Doane, 2 Hill, 537; Phil. on Ev., 266; C. & H. Notes, 491; 1 Greenl. Ev., §§ 115, 116, 118; 2 id., § 182; 11 Wend., 568; 12 J. R., 261; Leland v. Cameron, 31 N. Y., 121.)</p>

(Reported below, 4 Robt., 257; 33 How. Pr., 102.) The action was brought by the plaintiff, as assignee of Messrs. L. Roberts & Co., against the defendant as common carrier, to recover damages for injuries to a cargo of wheat. The answer, among other things, alleged a settlement of the cause of action by Messrs. L. Roberts & Co., the plaintiff’s assignors, before their assignment to the plaintiff.

<p>Appeal from order of the General Term of the Supreme Court in the fifth judicial district, denying a new trial and directing judgment in favor of plaintiff upon a verdict.</p> <p>The action was brought by the plaintiff for being put off the defendant’s cars under the following circumstances.</p> <p>On the 12th day of August, 1863, he purchased a ticket at the office of the defendant, at Buffalo, from that city to New York, stamped with that date, of which the following is a copy:</p> <p>NEW YORK CENTRAL RAILROAD la BUFFALO to NEW YORK. GOOD FOR ONE FIRST CLASS PASSAGE Only upon presentation of this Ticket, with Checks attached, and good only for 20 days from date. Not good unless'dated arid endorsed by the Jleceiver. Via NYC and HR Railroads. Cfjr* Conductors aro required to detach from this Ticket and take up the Checks over their respective lines. The Conductor upon the road at the end of the route, will take up the Ticket, as well as the Check over his road. OCT* If the Checks belonging to this Ticket are detached, they will not be received for passage. ,0 I Edw. If, Folger, Chief Clerk. Q C S hi f> % H NEW YORK. M tH . & b 0 s> . . }* s i? . <8,§ m «1 0 P P3 CL •r-' s A B B O”-1 m 1* B .So w ,a ft g NO. NEW Í* « 'A S C M Eh < Vi 0 H g O B W Oi B lJ o " P <j r £ ^ f H 1=1 « U> M 'No'""’’ YORK "rT</p> <p>He left Buffalo in the six p. m. train of the defendant in a sleeping car. He rode to Htica and there left the train. He testified that the conductor of the .sleeping car stood near the door and asked him for his ticket; that he handed it to Imn; that the conductor took it and tore off the New York Central coupon and returned the stub and Hudson River coupon ticket to him. This the conductor denied. His version was that he met the plaintiff at the car door on leaving, and asked him if he had his ticket, and he replied that he had; that he, the conductor, afterward found the Central coupon in the spring at the head of the berth which the plaintiff had occupied; that he took it, and when the Central conductor came into the car below Utica, he gave it to that conductor and told him that the passenger had left it in the spring and got off at Utica.</p> <p>The plaintiff on the next day took the eleven a. m. train east from Utica, and, on claiming to pass on producing the ticket without the Central coupon, he was told by the conductor that he could not, but must pay his fare or leave the car. He refused to do either, and when the train reached St. Johnsville, one of the regular stations or stopping places on the road, he was put off the car. He then paid his fare under protest, returned to the car and went on to Albany. His refusal to pay the fare was accompanied with the declaration or statement that he had already paid it, in the purchase of the said ticket, and that the coupon which had been taken off had been detached by the conductor on the train which he had left at Utica.</p> <p>Shortly after reaching Albany the conductor of the sleeping car, being seen by the plaintiff, accompanied him to the conductor of the Utica train, and informed the latter that he remembered the plaintiff; that he had found his ticket in the spring of his berth after he left, and had given it to the other conductor; and thereupon the conductor of the Utica train refunded to the plaintiff the fare he had taken from him. Some further evidence of what subsecpiently transpired at that interview was given by the plaintiff, which, with some exceptions taken during the progress of the trial, so far as they are material to the decision, are stated in the opinion.</p> <p>The jury found a verdict in favor of the'plaintiff against the defendant for $1,500 damages. A motion was made on the minutes of the judge who tried the action to set aside the verdict, and for a new trial, based on the exceptions and on the ground" of insufficient evidence, and that the damages were excessive. The judge denied the motion, and, at the same time in the same order, lie made a further order in these words: “ It is further ordered that the defendant may make a case and exceptions, covering the facts and testimony and exceptions upon the trial; and that upon the case, so made, the whole and all of the facts and questions, arising on the trial and upon this motion, shall be heard in the first instance at General Termand he directed that the proceedings of the plaintiff be stayed until the decision of the court upon the whole case.</p> <p>The cause was subsequently heard on a case and exceptions prepared in pursuance of that order at General Term. They ordered that the verdict rendered for the plaintiff at the trial be sustained, that a new trial of the cause be denied, and that judgment be rendered for the plaintiff pursuant to said verdict, together with costs.</p> <p>Defendant has power to make reasonable and proper regulations for the conduct of all persons on its cars. (Pierce on Am. R. R. Law, 248, 249, 490, 492; Commonwealth v. Power, 7 Met., 596; State v. Overton, 4 Zabri., Ohio, 441; Willits v. B. and R. R. R. Co., 14 Barb., 585; North. R. R. Co. v. Page, 22 id., 130; Hibbard v. N. Y. and E R. R. Co., 15 N. Y., 455; Sanford v. Eighth Ave. R. R. Co., 23 id., 344; Beebe v. Ayres, 28 Barb., 275.) Defendant is not liable if unnecessary force was used. (15 N. Y., 467; Chautauque Bank v. White, 24 id., 347; Crocker v. N. L. W. and P. R. R. Co., 24 Conn., 249.) Plaintiff had no right to leave the train at Utica, and on another day take another train; he abandoned his contract. (Pierce Am. R. R. Law, 253, 491, 492; Cheeney v. B. and M. R. R. Co., 11 Met., 121; State v. Overton, 4 Zabri., Ohio, 435.)</p> <p>Defendant is liable for the act of its conductor in putting plaintiff off of the train. (Myers v. Second Ave. R. R. Co., 8 Bosw., 305, 311, 312; Weed v. Panama R. R. Co., 17 N. Y., 362; 4 Duer, 192; P. and R. R. R. Co. v. Derby, 14 How. U. S., 483; Redfield on Railways, § 225 [2], § 169, pp. 381-384 and notes; Story on Agency, 452; Brown v. Chadley, 39 Barb. 253; 3 Bosw., 200, 246, 247.) A rule of defendant that plaintiff should be put off in this case would be unreasonable and of no effect as a justification. (15 N. Y., 458.) Ho such rule is pleaded, and defendant cannot avail itself of it. (29 Barb., 100; 16 N. Y., 297; Code, § 149; 35 Barb., 393; 20 id., 170; 16 N. Y., 197.)</p>

(Reported below, 47 Barb., 582.) The action was brought to recover damages upon sale of a horse. The summons in this case stated that the plaintiff would apply to the court for the relief demanded in the complaint.

This action was brought upon a policy of insurance issued by defendant, which the plaintiffs claimed that the defendant had renewed by the usual certificate of renewal. The only question in dispute on the trial was whether the policy was renewed. The original policy was issued to the plaintiffs through John Whelp, who had been an agent for the defendant for nine or ten years, and his name was indorsed upon the policy, as agent.

The action was brought by the plaintiffs for the recovery of commissions on a sale of certain real estate in the city of Hew York, made by the defendant, through their agency as brokers in his employment. After the evidence was closed a motion to dismiss the complaint was made and denied, and a verdict was then rendered for the plaintiffs. The facts, so far as they are material, are sufficiently stated in the opinion.

The action was brought against the appellant, as the indorser of two promissory notes made by her co-defendant, bearing date July 6th, 1865. The complaint alleged the making and delivery of the notes by Orrin G. Staples to the appellant, and that she indorsed and delivered the same to the plaintiff, at the same time guaranteeing the payment thereof, and it contained the ordinary averments of demand of payment and- notice of protest for non-payment.

G. Day, the attorney of record for the plaintiff, for an order of the court setting aside or vacating the satisfaction of the judgment in the action to the extent of his interest as attorney in the judgment, and for leave to issue execution on the judgment for that amount. H. 0. Day, the attorney, is the present appellant, and the defendants are the respondents.

This action was upon a promissory note dated June 2,1864, payable one year after date, made by one Miller for the accommodation of one Brown, and indorsed by the latter and by the defendant, payable at the Flour City Bank, Rochester. The answer denied notice of protest; and the only question litigated at the trial was whether notice had been properly served so as to charge defendant.

The plaintiff, in her complaint, alleged that in May, 1863, the defendant was “ the keeper of a public boarding-house in the village of Yonkers,” with whom she entered into an agreement for board and apartments, at a given price per week; that at the time a cistern for the reception of rain water had been constructed on the boarding-house premises, located in the usual pathway to the entrance of the house; that she was ignorant of its location, and, while returning after…

tlie General Term of the Supreme Court in the third judicial district, affirming a judgment in favor of plaintiff fentered upon the report of a referee. This action Was brought against defendant as a stockholder holding unpaid stock of the Sackett’s Harbor and Saratoga Bailroad Company, to recover an alleged debt against the company. The facts appear sufficiently in the opinions.

(Reported below, 51 Barb., 69; 34 How. Pr., 421.) The action was brought to recover the value of a trunk and its contents delivered by the plaintiff to the defendant for transportation, but which never reached its place of destination. It was shown, on the trial, that six trunks and three boxes were delivered on the 4th day of Hay, 1864, by the wife of the plaintiff to the Adams Express Company to be carried from Baltimore, in Maryland, to Newport, Bhode Island.

(Reported below, 2 Daly, 258.) This action was brought by the plaintiff as receiver of the property of the defendant, Waterman C. Bradley; to set aside an assignment made by him to the defendant, Thorp.

“Appeal from order of the General Term of the Court of Common Pleas of the city and county of New York, reversing a judgment in favor of plaintiffs, entered upon a verdict, and granting a new trial. This action was brought to recover commissions claimed to have been earned by plaintiffs as ship brokers in chartering a vessel for defendant. The plaintiffs were ship brokers, doing business in the city of New York.

(Reported below, 5 Robt., 404.) This action was brought against defendants as warehouse-men for the refusal to deliver goods deposited with them. In April, 1864, the defendants were keepers of a warehouse in the city of New York, known as a private bonded ware' house, established under an act of congress “ to extend the warehousing system by establishing private warehouses ane for other purposes,” passed March 28th, 1854.

(Reported below, 49 Barb., 588.) The action is for a perpetual injunction, restraining the defendants from the use of the plaintiffs’ trade-mark. The trade-mark claimed by the plaintiffs consisted of the use of the word “Akron” in designating a cement, or water-lime, manufactured by them near the village of Akron, in the county of Erie and the State of New York.

This action was brought to recover damages for an alleged breach of contract of purchase. The defence was a breach of warranty as to the character of the article purchased, also fraud.

in favor of plaintiffs, entered upon the decision of the court at Special Term. (Reported helow, 50 Barb., 520; 30 How. Pr. R., 69.) This action was brought to compel a readjustment of the defendant’s statement and declaration of dividend upon its business and earnings for the years 1863 and 1864, and to award plaintiffs’ dividends in gold, or proportion them in accordance with their value in currency. The facts sufficiently appear in the opinion.

The action was brought to recover the balance of the purchase-money of a quantity of goods, claimed by the plaintiffs to have been sold and delivered by them to the defendants, under a verbal contract of sale. The defendants denied the allegation in the complaint in reference to the sale and delivery.

This action was brought upon a guaranty in writing of the lessee’s covenants in a lease. The facts sufficiently appear in the opinion. A sealed demise by á married woman of premises not belonging to her separate estate is void, and neither lessor nor tenant is estopped.

(Reported below, 4 Robt., 138.) This action was brought to recover damages sustained by the plaintiff by falling into a coal-hole in the sidewalk in front of a house on Broadway, New York, in October, 1863. The defendant, Fowler, was the landlord,, and the defendants, Wood, were the tenants of the premises 596 Broadway, in the city of Hew York.

(Reported below, 49 Barb., 606.) This action was brought to recover damages alleged by the plaintiffs to have been sustained by them by reason of the defendants refusing to receive and pay for a quantity of barley, in accordance with a contract between the parties for the sale and purchase of the same.

<p>A party to a written contract who contracts in his own name, with nothing in the contract to indicate that he is acting for another, will not be permitted to prove by parol that he was, in fact, to the knowledge of the other party, acting as agent simply.</p> <p>Under the provisions of the act of congress of June 30, 1864 (§ 97, 13 U. S. Stat. at Large, 370), which provides that every person who shall have made a contract prior to the passage of the act, for the delivery of manufactured articles, is authorized to add to the contract-price any duty subsequently imposed, and to sue for and recover the same accordingly; a person contracting to manufacture and deliver certain machinery upon which, after the making and before the delivery, an increased tax or duty is imposed, is authorized to add the amount of the increase to the contract-price, and can sue for and recover the same without having himself first paid it.</p>

The action was brought to recover for seventy-five yards i of carpet sold and delivered to the defendant by the firm of R. R. Tinson & Co., of which the plaintiff is survivor, and for making and laying the same down in his house, and for fifty yards of batting, also sold, delivered and laid down therein. The defendant in his answer sets up a special contract and a failure to perform the same.

(Eeported below, 50 Barb., 634.) This action was commenced in the Supreme Oourt for the specific performance of the following contract, to wit: “ In consideration of one dollar, to me in hand paid by Eli Thayer, of • the city, county and State of blew York, and P. P. Todd, of the city of Boston, I hereby agree for myself and my representatives, that they, said Thayer and Todd, and their agents, may explore, bore, or in any way and manner test and examine about 458 acres of…

(Eeported below, 49 Barb., 475.) The action was brought on a policy of insurance, issued by the defendant to the plaintiffs, by which an insurance was effected against perils of the seas, to the… Held: when it was found that her bottom had been considerably damaged and that she required extensive repairs. Her cargo could not be brought on in her, and it was sent forward by other vessels.

<p>Appeal by the defendant Christie from a judgment of the General Term of the Superior Court of the city of New York, affirming a judgment in favor of the plaintiff, entered on' the report of a referee.</p> <p>The action was brought for the recovery of $1,246, the balance of the sum of $2,146, collected by the defendants as claim agents and brokers from the government of the United States on the employment of the plaintiff, after allowing $100 for their services in making the collection and crediting the sum of $800 paid on account thereof.</p> <p>The defendant Christie set up as one defence that the money was collected by the defendants under an agreement with one William S. Bliss, and that the action should be prosecuted by him as the real party in interest, and as a further defence that they have paid the sum of $1,521, a portion of the fund, to the plaintiff on his order, and he then sets up by way of accord and satisfaction of the residue an instrument signed by the plaintiffs in the following terms, viz,:</p> <p>“ I hereby consent to the discontinuance of the suit in the case of Isaac D. Hammond v. Christie <& Stow, and the suit is hereby discontinued and the cause of action released in con ■ sideration that Christie & Stow pay the costs of said suit, and pay a certain order or draft drawn by me on Christie & Stow for seventy dollars, now in the hands of James H. Sheehan,” and he then avers the payment of the said sum of seventy dollars to Sheehan, and that at the time of such payment offered to pay and tendered to him (he being the plaintiff’s attorney in the action) the plaintiff’s costs therein.</p> <p>The defendant Stow interposed substantially the same matters in defence.</p> <p>The referee found due to the plaintiffs, after making an allowance of $225 to the defendants for their services, a bal-, anee of $1,115 over and above all payments, together with interest thereon, for which judgment was entered.</p> <p>The facts, so far as they are material to the decision in this court, are sufficiently set forth in the opinion.</p> <p>Plaintiff is not the party in interest and cannot maintain this action. (Code, § 3, 113.) A draft, payable out of a particular fund, operates as an assignment pro to the drawee. (Harris v. Clark, 3 N. Y., 117, and cases cited; Hoyt v. Story, 3 Barb, 262.) The agreement or release executed by plaintiff is a sufficient defence to this action. (1 R. S. [Edm., ed.], 722, § 2; 2 Pars. On Con., 192, 130; Palmer v. Huxford, 4 Denio, 166; Wilkinson v. Brown, 1 Rawle, 391.)</p> <p>Payment of a less sum than that due does not operate as an accord and satisfaction. (2 J. R., 448; 17 id., 169; 9 id., 333; 13 id., 353; 2 Daly,-.) Tender is not sufficient; performance must be accepted. (16 N. Y., 448; 23 Wend., 343; 19 id., 408; 16 Barb., 598.) Defendants are estopped from denying Hammond as owner of the claims. (Dezell v. Odell, 3 Hill, 215; Plumb v. Catt. Ins. Co., 16 N. Y., 392; 4 Barb., 495; 7 id., 407; 8 id., 102; 6 Bosw., 312; Ct. Apps., 1867; Anbey v. Fiske, 36 N. Y., 47; 37 How. Pr. R., 279; Story on Agency, § 217.) Plaintiff may maintain this action without joining the cestui que trust. (Code, § 113; Lewis v. Graham, 4 Abb., 106.)</p>

The action was brought to recover for an alleged breach of covenant contained in a lease.

Appeal by defendant Ashton from order of the General Term of the Supreme Court in the third judicial district, reversing a judgment in favor of plaintiff entered upon the report of a referee and granting a new trial. This action was brought against defendants, Aaron Van Kirk and Samuel Ashton, as common carriers, for injury to a cargo of barley shipped from Albany to Baltimore.

<p>In order to substitute an arrangement between the parties for a manual delivery so as to vest the title under a contract of sale of a quantity of property mixed with an ascertained and defined larger quantity, the portion sold must be so clearly defined that the purchaser can take it, and he must be invested with the right to take it.</p> <p>Defendants executed to plaintiffs a receipted bill of sale of 100 barrels and 4,000 gallons of oil, “to be delivered when called for, subject to twenty shillings per month storage, the quality of the oil to be like the sample delivered.” The oil was understood to be a portion of 150 barrels, averaging forty gallons each, consisting of three different qualities, 68 barrels corresponding with the sample, 46 of a superior quality, and the residue inferior. When plaintiffs called for the oil defendants delivered 100 barrels, containing but 1,821 gallons. The diminution in quantity occurred by leakage after the execution of the bill of sale. In an action brought to recover for the deficiency,—Held, that the contract was an executory, not an executed one, and plaintiffs were bound to deliver the quantity specified in the contract. The case of Kimberly v. Patehin (19 N. Y., 337) distinguished.</p>

<p>Appeal from judgment of the Superior Court of the city of Hew York in favor of plaintiff, entered upon an order denying motion for a new trial, and directing judgment upon a verdict. (Reported below, 5 Robt., 650)</p> <p>This action was brought to recover damages for an injury caused by the willful act of one of defendant’s car drivers in running one of its cars against him and throwing him into an excavation by the side of the track.</p> <p>The plaintiff, in opening his case, stated that the action was brought to recover damages of the defendant for the willful act of its driver in running against the plaintiff, whereupon the defendant moved that the plaintiff’s complaint be dismissed upon the ground that the defendant was not liable for the consequences of the act complained of, the same being willful; but the judge held otherwise, and that the statute making the owner of every carriage or vehicle used for the transportation of persons running upon any public highway liable for all damages done by the willful act of any person in the employment of such owner as a driver; that the defendant would be liable for the act complained of, and denied the motion, to which ruling and decision the defendant excepted, and the trial of the cause proceeded, and was conducted throughout upon the theory that the defendant was liable for the willful act of its car driver while running the car he was driving along the track of the defendant’s road against the plaintiff while standing in the public highway, so near the defendant’s track that the cars in passing came in contact with his person and caused him to fall into an excavation adjoining the track, and thus did him an injury, and in order to sustain the plaintiff’s allegation of the driver’s intention to do him an injury his counsel inquired of a witness who saw the collision whether after the car passed he heard the driver say anything, to which the witness answ^fed “ he was cursing, and said damn him, let him fall in and be killed.” The defendant objected to receiving in evidence this declaration of the driver, made after the occurrence complained of; but the judge overruled the objection, holding that the declaration was a part of the transaction and therefore admissible, to which the defendant excepted. Upon the whole evidence the jury rendered a verdict in favor of the plaintiff against the defendant for $2,500. The exceptions taken were ordered to be heard in the first instance at the General Term.</p> <p>The provisions of title 13, chap. 20, part 1, § 6 of the Revised Statutes are not applicable to the facts of this case. (Isaacs v. Third Ave. R. R. Co., 47 N. Y., 122; 1 R. S., 696; Reviser’s notes, 3 R. S. [2d ed.], 560; 1 Redfield on Railways, 3; Ferry Leases & R. R. Grants, 173, etc.) The statute is in derogation of the common law and penal,-and must be strictly construed. (Milbred v. Lake Ont. R. R. Co., 9 How. Pr., 238; Wood v. Donaldson, 22 Wend., 395; Steinmets v. Poudinot, 3 Serg. & Rawle, 541; McCluskey v. Cromwell, 11 N. Y. [1 Kern.], 593 ; Jones v. Estis, 2 J. R., 379; Plank-road Co. v. Robbins, 22 Barb., 663; Carpenter v. People, 8 id., 605; Dwarris on Stat. [Potter’s ed.], 194, note 3, 245 and notes, 690, 696; Chegary v. Mayor, etc., 13 N. Y., 220; Plowd. R., 205; 3 Bing., 193; Watervliet T. Co. v. McKean, 6 Hill, 620; 1 Kent’s Com., 462; and auth. cited; Pillow v. Bushnell, 5 Barb., 159 ; Burnside v. Whitney, 21 N. Y., 148 ; Hegar v. Eighth Ave. R. R. Co., 15 id., 382; Jackson v. Gilchrist, 15 J. R., 116; Constantine v. Van Winkle, 6 Hill, 177; Furman v. Mayor, etc., 5 Sand. 16.). Plaintiff’s position was unlawful; the car had the right of way. (2 R. S. [5th ed.], 689, § 53; Hegar v. Eighth Ave. R. R. Co., 15 N. Y., 382; Craig v. Roch, etc., R. R. Co., 39 id., 410; Wilbrand v. Eighth Ave. R. R. Co., 3 Bosw., 314; Angell on Highways [2d ed.], 421, and auth. cited; Commonwealth v. Temple, 14 Gray, 69.) A master is not liable for the willful mischief of his servant, though he is at the time, in other respects, engaged in the master’s business. (1 Chit. Pl., 69 ; McManus v. Cricket, 1 East, 106 ; Wright v. Wilcox, 19 Wend., 343 and auth. cited; Vanderbilt v. Rich. T. Co., 2 Comst., 479 ; Clark v. Met. B’k, 3 Duer, 241; Hibbard v. N. Y. & Erie R. R. Co., 15 N. Y., 467; Mali v. Lord, 39 id., 383; Fraser v. Freeman, 43 id., 566; Isaacs v. Third Ave. R. R. Co., 47 id., 122; Poulton v. Lond. & S. W. R. R. Co., 2 L. R. [Q. B.], 534; Roe v. Birkenhead, etc., R. R. Co., 21 L. R. [Exch.], 9; Lamb v. Palk, 9 Car. & P., 629; Weed v. Panama R. R. Co., 17 N. Y., 362; Sanford v. Eighth Ave. R. R. Co., 23 id., 343; Drew v. Sixth Ave. R. R. Co., 26 id., 49; Higgins v. Watervliet T. Co., 46 id., 23.) Declarations of the driver were inadmissible against defendant. (Luby v. H. R. R. R. Co., 17 N. Y., 131.)</p> <p>This action was for an intentional trespass, and the principle of concurrent negligence is, not applicable. (Sanford v. Eighth Ave. R. R., 23 N. Y., 346.) Plaintiff had a right to stand where he stood at the time of the accident. (Bass v. Litton, 5 C. & P., 407; Ang. on Highways, §§ 2, 4, 24, 26, 333 ; Rex v. Severn & W. R., 2 Barn. & Ald., 646.) This ease is clearly within the provisions of the Revised Statutes. (1 R. S., 695, 696; Hayden’s Dic. of Dates, tit. Railroad, Tramroad; Appleton’s Cyclopedia, tit. Railroad; Potter on Stat., 184, n. 247; Olcott v. Tioga R. R. Co., 20 N. Y., 210, 223; Fitch v. Livingston, 4 Sandf., 506; Tisdale v. Combe, 7 A. & E., 788; Attorney-General v. Saggers, 1 Price, 195; Pratt v. Fraser, 3 Camp., 14.) Declarations of the driver at the time of the occurrence were part of res gestee and proper, (Cheeseborough v. Taylor, 12 Abb. Pr., 227; Stephens v. People, 4 Park. Cr., 396; Fry v. Bennett, 3 Bosw., 200; Kasson v. Mills, 8 How. Pr., 381; Brehn v. G. W. R. R. 34 Barb., 256; 1 Greenl. Ev., § 123 ; Haupt v. Puhlman, 16 Abb. Pr., 307.) Defendant was liable for its driver’s acts, although wrongful. (Higgins v. Watervliet, T. and R. R. Co., 46 N. Y., 23; Fraser on Master & Servant [2d ed.], 149-192; Isaac v. Third Ave. R. R. Co., 47 N. Y., 122.)</p>

<p>Appeal from judgment of the General Term of the Superior Court of the city of Sew York, modifying a judgment in favor of plaintiff rendered by the Special Term. (Reported below, 4 Robt., 449.)</p> <p>This action was brought by the plaintiff, who was the owner of two houses and lots on Bleecker street, in the city of Blew York, to restrain the defendant from the use of hi-s steam power, used in a marble factory on the corner of Bleecker and Banks streets. The judge, before whom the cause was tried without a jury, found the following facts:</p> <p>1st. Plaintiff is the owner of the two houses and lots of land described in the complaint, and in the receipt of the rents, issues and profits thereof.</p> <p>2d. That the defendant is the owner and in possession of the building and premises, also described in the complaint, and adjacent to the said houses of the plaintiff.</p> <p>3d. That the said building of the defendant is used and occupied as a marble factory, for the purpose of sawing blocks of marble into slabs; that said factory contains machinery for the purpose of such manufacture, which machinery is propelled by steam power, located in said building.</p> <p>4th. That the action of such machinery produces a jarring and shaking of the said houses of the plaintiff, injuring the same and amounting to a private nuisance.</p> <p>5th. That by reason of such jarring and shaking, the plaintiff has sustained damage to the amount of $967.</p> <p>And, as conclusions of law, that the plaintiff is entitled to judgment against the defendant:</p> <p>1st. That the defendant be perpetually enjoined and restrained from carrying on the business in the said building and premises of manufacturing and sawing marble, by means of machinery propelled by steam power; or of any other kind of business requiring the use of machinery propelled by steam power.</p> <p>2d. That the plaintiff recover from the defendant th,e sum of $967 for her damages in this action.</p> <p>3d. That the plaintiff recover of the defendant her costs of this action, to be taxed.</p> <p>On appeal, the General Term modified this judgment, in so far that it reversed the judgment for $967 damages, and qualified the injunction so that it restrained the defendant “from sawing and manufacturing marble, and carrying on the business thereof, in the building and premises last above mentioned, and adjoining the plaintiff’s premises on the north, by means of the propulsion of the machinery therein, as mentioned in the complaint, by force of steam, in the manner in which and with the effect with which such machinery has heretofore been propelled by steam, as set forth in the complaint; and also from carrying on any other kind of business in such building and premises by means of the propulsion of such machinery by the force of steam, applied and used in the manner set out in the complaint, so as to interfere with the use and enjoyment by the plaintiff of her aforesaid premises, or injure the same, or produce the injurious effects set forth in the complaint, and found by this court, in its decision at Special Term, as facts.”</p> <p>The further facts, necessary to be understood, are stated in the opinion.</p> <p>Plaintiff could not maintain an action against defendant for any acts done before May 1, 1863. (White v. Cohen, 19 Eng. L. and Eq., 146; S. C., 2 Drew, 312; Mumford v. Oxford, 36 Eng. L. and Eq., 580; Simpson v. Savage, 37 id., 374.) Plaintiff’s acquiescence for nine years in defendant’s use of the premises deprived her of the remedy by injunction. (Sprague v. Steele, R. I., 247, and cases cited; Williams v. Earl of N. J., 1 Cr. & Ph., 91; Story Eq. Jur, 959, a; 1 Joyce on Injunctions, 102; Coles v. Diruskay, 56; 5 De G., M. & G., 1; G.W. Ry. v. Oxford, 3 De G., M. & G., 355, 356, 359, 360, 363; 3 id., 328.) In order to recover, plaintiff’s rights must be certain and ascertained, and there must be a palpable violation of them. (Olmsted v. Loomis, 6 Barb., 160; Fisk v. Wilber, 7 id., 395.) Plaintiff was not entitled to an injunction. Ho irreparable damage was shown. (1 Joyce on Injunctions, 126; St. Helens Smelting Co. v. Tipping, 1 Ch. App., 66; S. C., 11 H. L. Cases, 642; Galtke's Case, 6 R. W. Cases, 371; Bradley's Case, id., 551; Radcliff v. The Mayor, 4 Comst., 195, 200; Attorney-General v. Sheffield Gas Co., 3 De G., M. & G., 304; Brand v. Hammersmith [L. R.], 2 Q. B., 246; Hole v. Barlow, 4 C. & B. [N. S.], 334; Penny's Case, 7 E. & B., 660; Van Bergen v. Van Bergen, 3 J. Ch., 287; Thompson v. Matthews, 2 Edw. Ch., 212; Attorney-General v. Nichol, 16 Ves., 338; Milham v. Kemp, 28 Barb., 228; Fisk v. Wilber, 7 id., 395; Olmsted v. Loomis, 6 id., 100; Brady v. Weeks, 3 id., 157; Murray v. Hay, 1 Barb. Ch., 65.) Defendant was entitled to a trial by jury. (Hudson v. Caryl, 44 N. Y., 553; Murray v. Hay, 1 Barb. Ch., 65; Mohawk B. Co. v. Utica and S. R. R. Co., 6 Paige, 563; Rogers v. Barker, 31 Barb., 447; 47 N. H., 71; Kirkham v. Handy, 11 Hump., 406; 1 Grant, 412; Attorney-General v. Tel. Co., 5 Law Times [N. S.], 328; Cleeve v. Maloney, 9 Wend., 882; Wason v. Sanborn, 45 N. H., 171; Davis v. Morris, 36 N. Y., 569; Bradley v. Aldrich, 40 id., 504; Code, §§ 55, 266.)</p> <p>The findings of fact were warranted by the evidence, and are conclusive upon this court. (Borst v. Spelman, 4 N. Y., 284; Western v. Genesee Ins. Co., 12 id., 258; Griscom v. The Mayor, id., 586; Cady v. Allen, 18 id., 573; Ostrander v. Fellows, 39 id., 350.) The reversal by the court below of the judgment, so far as it awarded damages, did not affect plaintiff’s rights to an injunction. (28 How. Pr. R., 238; 2 Story Eq. Jur., 238, §§ 925, 927; Niagara Br. Co. v. G. W. Ry. Co., 39 Barb., 212; Beckwith v. Griswold, 29 id., 291; Knox v. The Mayor, 55 id., 407; Davis v. Lambertson, 56 id., 485; Williams v. N. Y. C. R. R. Co., 16 N. Y., 111.) The fact that the business is lawful, and conducted with care and skill, is no excuse or justification as respects the injury to plaintiff’s buildings. (Fish v. Dodge., 4 Den., 315; Bull v. Flagler, 23 Wend., 356; Baptist Church v. Schenectady Co., 5 Barb., 79; Dennis v. Eckhart, 2 Am. L. R. [N. S.], 167; Norcross v. Thoms, 51 Me., 503.) The court did not err in refusing to grant defendant a trial by jury. (Barlow v. Scott, 24 N. Y., 40; N. Y. Ice Co. v. West. Ins. Co., 23 id., 357; Code, §§ 253, 254; Sup. Ct., rule 40.) The findings of the court were sufficient to authorize judgment. (Brainerd v. Dunning, 30 N. Y., 211; Grant v. Morse, 22 id., 323; Lefler v. Field, 50 Barb., 407; Rice v. Isham, 1 Keyes, 46.)</p>

This was an action to recover rent. The complaint stated K that in or about the month of April, 1863, by an agreement made and entered into between the plaintiff and the defendants, the plaintiff let and rented unto the defendants, and the defendants hired and took from the plaintiff a certain dock or wharf, and a lot of land adjacent thereto, lying and situate in the town of Yonkers, county of Westchester, for the term .of one year from the first day of May, 1863, at the…

(Reported below, 2 Daly, 307.) The action was brought upon a policy of insurance issued by the defendant to the plaintiff on the fourteenth day of February, 1865, insuring the plaintiff against loss or damage by fire to the amount of $2,500 on a stock of fire-works, ordnance stores and other merchandise, hazardous and extra hazardous, his own or sold on commission, or sold but not delivered, contained in a brick building, bTo. 16 John street, in the city of Eew York, for one…

The action was brought to compel the cancellation of certain indorsements made by plaintiff.

The action was brought by the plaintiff to recover of the defendant the sum of ninetydive dollars, money alleged to have been paid for a yoke of oxen by the plaintiff, at the request of the defendant; and also for goods, wares and merchandise sold and delivered.

The action was brought to restrain the prosecution by the defendant of an action upon a bond given by the plaintiff, which was secured by a mortgage on real estate, and for the subrogation of the plaintiff or some person nominated by him to the rights of the defendant, on being paid the amount due him.

in the first judicial district, reversing a judgment in favor of plaintiffs, entered upon the report of a referee, and ordering a new trial.

The action was brought by the plaintiff for the purpose, among other things, of having a certain mortgage given by Henry J. Sedgwick and George D. Cowles to Stephen D. Dillaye, her husband, on the sale and conveyance of the premises mortgaged by him to them, and which subsequently had become vested in The Commercial Bank, declared and adjudged to be trust property for her benefit.

The action was for an accounting between partners. The facts, so far as necessary to present the points involved, appear in the opinion. This court will not review and reverse the decision of a referee on a pure question of fact, especially where the proof is in favor of the decision.

The object of the action was to secure to the plaintiff (an outgoing partner) an interest in a lease of which the defendants (the continuing partners) had obtained a renewal, during the continuance of the copartnership, to his exclusion and for their own use. The judge who tried the issues found the following facts: First.

Appeal by the plaintiff from so much of the judgment of the General Term of the Court of Common Pleas, of the city and county of New York, as reduces the allowance made to him at Special Term, under section 309 of the Code.

The action was brought to recover damages resulting from the sinking of a canal boat belonging to plaintiff, ladened with coal, in consequence of a collision with defendant’s steamer St. John, alleged to have been occasioned by the negligence of those in charge of that steamer.

<p>Appeal from order of the General Term of the Superior Court of the city of Hew York, reversing a judgment entered upon an order of Special Term, dismissing plaintiff’s complaint and granting a new trial.</p> <p>This action was brought upon two notes of $3,000 each, signed J. Howard & Son, of which firm defendant is survivor, dated April 10,1850, payable eight months from date to the order of H. .B. Tebbetts. Within a few days after the giving of the notes, the same were transferred by Tebbetts to Isaac T. Smith, who paid value for the same in an advance previously made, and received them without knowledge or information of any defence to the same, and after inquiry of the makers as to the consideration of the notes. They were transferred to the plaintiff after maturity. The notes were given for coal purchased by Howard & Son and for the freight on the same to California. The coal was purchased for the use of certain steamships, for which the firm of Howard & Son were agents. The plaintiff requested the court to charge that upon the evidence he was entitled to a verdict. He also requested to be allowed to go to the jury upon certain questions of fact. Both of these requests were refused, and the plaintiff excepted. The court dismissed the complaint, to which the plaintiff excepted. Other facts appear in the opinion.</p> <p>If the allegations of the original complaint were true, a good cause of action was established against the persons named therein. (Bk. of Rochester v. Monteath, 1 Den., 402; Wright v. Hooker, 6 Seld., 51.) The creditor has the option on discovering a partnership of suing the debtor separately or joining the dormant partner. (N. Y. Dry Dock Co. v. Treadwell, 19 Wend., 525, 527; Nat. Bk. v. Thomas, 47 N. Y., 15,19.)</p> <p>Parol evidence to show that the makers of the note acted as agents was inadmissible. (Fenley v. Stewart, 5 Sandf., 101; Stackpole v. Arnold, 11 Mass., 27; Pentz v. Stanton, 10 Wend., 271; Hyde v. Paige, 9 Barb., 150.) There was nothing on the face of the note to show that the makers acted as agents; hence they were personally liable. (Evans v. Wells, 22 Wend., 324; Mills v. Hunt, 20 id., 431; Rankin v. De Forrest, 18 Barb., 143; Spencer v. Field, 16 Mass., 42; Edwards on Notes, 83; Story on Notes, § 68; 16 Gray, 77.) There is no proof that when plaintiff took the note he had notice that any one but the maker was intended to be charged. (Hyde v. Paige, 9 Barb., 150; Pentz v. Stanton, 10 Wend., 271; 1 Parsons on Notes, 92; Story on Agency, § 155; 8 Cow., 31.) A ship’s-husband or part owner has no authority to bind the owners by notes in his own name. (Taber v. Cannon, 8 Metc., 456; Abbott on Shipping, 108; Williams v. Thomas, 6 Esp., 18; Parsons on Part., 569.) A partner who gives his own note for the debt of a partnership will be personally liable. ( U. S. Bank v. Binney, 5 Mason, 176; Emily v. Lye, 15 East, 7; Faith v. Raymond, 11 Ad. & Ell., 339; Siff ken v. Walker, 2 Camp., 308; Pars. on Part., 215; Story on Part., 140.)</p>

This action was brought to recover the possession of a farm in Saratoga county. The facts sufficiently appear in the opinion. The deed of a person non compos mentis, before office found, is not void, but voidable only. (Jackson v. Gumear, 2 Cow., 552; Pearl v. McDowell, 3 J. J. Marsh, 658 ; Wait v. Maxwell, 5 Pick., 217; Ingraham v. Baldwin, 5 Seld., 45, 48; Fitzhugh v. Wilcox, 12 Barb., 235, 237; Bool v. Mix, 17 Wend., 134; Young v. Stevens, 48 N. H., 133; 2 Am.

<p>Appeal from an order of the General Term of the Supreme Court in the seventh judicial district, affirming an order made at a Special Term.</p> <p>The order directed that Bobei’t L. Dorr, plaintiff’s attorney, pay to the defendant in this action his taxed bill of costs on the hearing of the motion before a referee, to whom it was referred to take the proofs of the facts.</p> <p>It appeared that one Israel Canfield, in May, 1863, being then a resident of this State, and about to remove therefrom, and having, as he claimed, a cause of action against the defendant, consulted Dorr' in regard to it; and was advised by him that his claim was valid, and that its collection could be inforced. Dorr then received the claim for collection, under an agreement in writing that hé was to-have a sum equal to one-half of the demand if he collected it, besides his costs, when collected; and if he failed to collect anything he was not to be compensated for his services. As Oanfield was about to remove from the State, to save the necessity of filing security for costs, Dorr advised Oanfield to assign his claim to some resident of this State, suggesting the name of George Voorhees, the plaintiff, who was then insolvent, and so believed to be by both Dorr and Oanfield. Voorhees took, an assignment of the claim, and gave his promissory note to Canfield for $100, ostensibly as a consideration for the assignment, but with the understanding that it would never be treated as an obligation against him, and it has not; and with the understanding, also, between Canfield, Dorr and Voorhees, that although the legal title to the claim was, by the assignment, vested in Voorhees, he was not to claim any interest in what should be collected; and that whatever was collected should be for the benefit of Canfield and Dorr. The latter then, by himself as the attorney, commenced the action to recover the demand. Upon the trial of the action plaintiff was nonsuited. A judgment was perfected in favor of the defendant for $245.99 costs; upon which an execution was issued, and returned wholly unsatisfied. The referee reported the evidence and the facts found by him substantially as here stated, with his conclusion that Dorr was beneficially interested in the subject of the action ; and the court ordered that he pay to the defendant his taxed costs in the same.</p> <p>It is lawful for an attorney to agree to receive a portion of the recovery for his compensation in lieu of other reward. (Code, § 303 ; Satterlee v. Fraser, 2 Sandf., 141; Barry v. Whitney, 3 id., 420; Benedict v. Stuart, 23 Barb, 420; Easton v. Smith, 1 E. D. Smith, 318; Wilde v. Joel, 15 How. Pr., 329; Stow v. Hamlin, 11 id., 452; Hitchings v. Van Brunt, 5 Abb. [N. S.], 212.)</p> <p>In an action brought by an assignee of a right of action or a person beneficially interested in the recovery, such assignee or person is liable for costs the same as the plaintiff. (3 R. S., 5th ed., 909, § 44; Schoolcraft v. Lathrop, 5 Cow., 17; Colvard v. Oliver, 7 Wend., 497; Bendernagle v. Cocks, 19 id., 151; Jordan v. Sherwood, 10 id., 622; Whitney v. Cooper, 1 Hill, 629; McHench v. McHench, 7 id., 204; Bliss v. Otis, 1 Den., 656 ; Giles v. Halbert, 12 N. Y., 32.)</p>

Appeal by defendant, Ruckman, from judgment of the General Term of the Superior Court of the city of Hew York, affirming a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 35 How. Pr., 350; 5 Robt., 702.) This action was upon a promissory note, dated January 8, 1852, made by defendants, Ruckman and Lake, payable to one Russell, and indorsed and transferred by Russell to the plaintiff. The facts bearing upon the question discussed appear in the opinion.

(Reported below, 37 How. Pr., 240.) The action was brought to set aside an assignment, made by the defendant William Caldwell, to assignees for the benefit of his creditors as fraudulent, on the ground of a preference given to his wife for a debt alleged to be due from him to her for money borrowed. The facts sufficiently appear in the opinion.

In the year 1863, the relator had, as part of its capital, $65,000 invested in the stocks of the United States, and for the assessment of that year paid upon such stocks taxes to the amount of $812.50, besides collector’s fees. In the year 1864, it had, as part of its capital, $91,000 invested in stocks of the United States, upon which it paid for the assessment of that year a tax of $6,670.30, besides collector’s fees.

This action was brought to recover a balance alleged to be due for freight upon a load of corn from Buffalo to Albany.

<p>Appeal from judgment of the General Term of the Supreme Court in the'Seventh judicial district, entered upon an order denying motion for new trial and directing judgment in favor of plaintiff upon a verdict.</p> <p>This action was brought to recover damages for neglect of duty upon the part of the American Express Company in collecting a promissory note, delivered to it for that purpose.</p> <p>On the trial it appeared that about the 27th of April, 1858, the plaintiff delivered to an agent of the American Express Company, at Brockport, in this State, a promissory note, made by one Thomas Ogg Shaw, at Rochester, in this State, on the seventh day of April, 1855, for $1,900, payable to the order of the plaintiff on the first day of January, 1866, at the Brockport Exchange Bank, indorsed by the plaintiff, and stated to the agent “that he wanted it taken to San Francisco, and presented to Mr. Shaw, payment demanded, and, if not paid, suit brought at once and collection made.” The agent placed it in a collection envelope and indorsed upon the envelope the amount of the note, from whom received, and by whom made, adding these words, “ if not paid on presentation, have it sued and collected as soon as possible.” When this note was delivered by the plaintiff he believed that the American Express Company’s line extended to San Francisco, and had no information to the contrary. The line of that company did not in fact extend beyond Hew York. The note was carried by that line to the city of Hew York, and there delivered to Wells, Fargo & Co.’s express. The usual time required in 1858 for the transmission of a package from that city to San Francisco was thirty days. This note was received in San Francisco in the early part of that year and was presented by a clerk of Wells, Fargo & Co. to Shaw and payment demanded, with which demand Shaw refused to comply; and then, instead of having the note sued, as directed, they wrote the plaintiff on the subject of Shaw’s liability to pay the note, without first having its payment demanded at the bank where it was made payable. His letter was answered by the plaintiff’s attorney, under date of July 26, 1858, stating it to be the business of Shaw to show that he had the funds at the bank ready to pay, and concluded by saying: “ The note is a valid one, and if there is any way to collect it, as we think there must be, Hr. Palmer wants it done; he is responsible.” Upon the receipt of this letter by Wells,-' Fargo & Co. they delivered the note to a law firm in San Francisco in good standing with instructions to sue it if they thought the money could be collected. On the eighth day of January following (1859) an action was commenced upon the note in the fourth judicial district court of California, in the plaintiff’s name, against Shaw, to the complaint in which Shaw interposed no other answer than a two years’ statute of limitations, made to prevent the maintenance of an action upon a contract made elsewhere than in that State against an inhabitant of that State who had resided therein, exclusive of absences from the State, two years after the cause of action accrued, and on the trial it appeared, and was so found by the jury, that Shaw had resided there two years one month and six days, exclusive of absences, and thereupon it was ordered and adjudged hy the court, that the plaintiff take nothing by hie action, and that Shaw recover from him his costs and disbursements. Shaw continued tó reside in California until August, 1865, when he - returned to the city of Hew York, and remained in that vicinity until about the first day of October, 1866, when he removed to Chicago, Illinois, where he has ever since resided. Defendant gave proof that prior to, at the time, and subsequent to the suit in California, Shaw was insolvent. The evidence upon that subject was conflicting.</p> <p>At the conclusion of the evidence, the court held and decided that The American Express Co., by its contract, undertook to take the note to California, and there first present it to Shaw for payment, and then sue it. That Wells, Fargo & Co. were, for that purpose, the defendant’s agents; that they, instead of causing a suit to be immediately commenced when payment was refused, without any valid excuse, delayed suing until the statute of limitations ran upon the demand, and that the plaintiff thereby lost it. That the defendant was precluded from questioning what was adjudged in the suit in California, and that the only question for the jury was as to the amount of damages the plaintiff was entitled to recover; to which decisions and rulings the counsel for the defendant duly excepted.</p> <p>The court charged the jury that if, at the time the note was received in California by Wells, Fargo & Co., the pecuniary circumstances of Shaw were such that nothing could have been collected of him in that State, and he remained in that condition down to the time the statute 'of limitations ran upon the demand, it would mitigate the damages to a nominal amount. That upon this point the testimony was conflicting; that the burden of proof was upon the defendant, and it should be such as to satisfy them beyond a reasonable doubt that Shaw was irresponsible, and that nothing could have been collected of him by suit; that if the testimony simply left their minds in doubt, the plaintiff was entitled to their verdict on that question.</p> <p>The defendant’s exception to this portion of the charge is as follows: “ Defendant excepts to that portion of the charge that if there was reasonable doubt as to whether Shaw was solvent or not, the plaintiff was entitled to recover the amount of the note and interest.” Defendant requested the judge to charge that the action in California was prosecuted solely at the expense of Wells, Fargo & Co.; that Shaw resided here only for a limited period; that his prior and subsequent residence was where it now is, in the State of Illinois, and that the plaintiff’s right of action upon the note was the same as before the action in California, and that the plaintiff must show affirmatively that he has sustained damage; with which request the judge declined to comply, and the defendant’s counsel excepted.</p> <p>The jury rendered a verdict in favor of the plaintiff" for the amount of the note and interest, and exceptions were ordered to be heard in the first instance at the General Term.</p> <p>The judge erred in charging that defendant was liable for the negligence of Wells, Fargo & Co. (Lowell Wire Fence Co. v. Sargent, 8 Allen, 189 ; Jenneson v. Cam. and A. R. Co., 4 Am. L. Reg., 234; 2 Redfield on Railways, § 170, sub. 7, § 180, sub. 2; Story on Agency, § 201; Paley on Agency, 17,20.) All questions compounded of law and fact must be submitted to the jury. (Foot v. Wiswall, 14 J.R., 304.) There is no absolute rule as to what constitutes negligence. (S. & R. on Neg., 219, and cases cited in note; Hunter v. Caldwell, 10 Q. B., 69, 82.) Plaintiff must show affirmatively that he has sustained damages. (Allen v. Suydam, 20 Wend., 321; Lienau v. Dinsmore, 3 Daly, 365.) If an agent uses reasonable diligence in appointing a sub-agent, he is not responsible for the sub-agent’s neglect or fraud. (Story on Contracts, § 155; Paley on Agency, by Lloyd, 17, 20; Story on Agency, § 201, and note; 1 Livermore on Agency, chap. 2, § 4, pp. 56, 57; Hum v. Union Bk. Louisiana, 4 Rob., 109; Brownley v. Coxhell, 2 Bos. & Pul., 438; Cochran v. Islam, 2 M. & S., 301; Chitty on Contracts, 233, 234, 236; Parsons on Mer. Law, 155, 156.)</p> <p>The, objection to the records of the judgments of Supreme. Court of California was not well taken. (Act of congress of May 26, 1790, 1 Stat. at Large, 122; 1 Brightley’s Dig., 265; 1 Conkling’s Treatise [3d ed.], 390; Hatcher v. Rocheleau, 18 N. Y., 86 ; Code, § 426.)</p>

(Beported below, 50 Barb., 100.) This action was brought to recover damages for the seduction of plaintiff’s minor daughter, Amanda Gray. The daughter had formerly been in the employ of defendant ; and while there, according to her testimony, was seduced by him. After leaving his service she went into the employment of a Mr. Davis. She was sent for to aid her mother for a few days on account of sickness in the family.

<p>Appeal from order of the General Term of the Supreme Court in the third judicial district, setting aside a verdict in favor of plaintiffs and granting a new trial.</p> <p>The action was brought to recover the value of a quantity of wool which the defendant had shorn from sheep, to which the plaintiffs claimed title.</p> <p>The defendant in Hay, 1864, owned a lot of sheep and lambs, which the plaintiffs wished to buy. The exact number was not known. They were at the time in two different fields. The plaintiffs went to examine them, and after such examination and some negotiation with the defendant they agreed to buy the whole, except two bucks and a lame ewe, at four dollars a head. They paid twenty-five dollars on account of the purchase, and were to take the lambs in September, and the sheep in November following. The whole number bought was ninety-two sheep and seventy-one lambs. They were taken away and paid for by the plaintiffs, the lambs and a part of the sheep in July or August, and the rest of the sheep in October. Before they were so taken the defendant had sheared the sheep and converted the wool to his own use.</p> <p>The judge, at the close of the testimony, held and decided that holding the contract to be as testified to by the defendant, as matter of law the title to the sheep passed to the plaintiffs immediately upon the completion of the contract and the payment of the twenty-five dollars, and that they were entitled to recover the highest market price of wool between the time of the demand thereof and the time of trial, with interest from the time of the demand, and directed the jury to render a verdict accordingly. A verdict was given in accordance with that direction. Exceptions were ordered to be heard at first instance at General Term. Other facts appear in the opinion.</p> <p>The contract of sale was valid, and the title to the sheep passed to plaintiffs on the payment of the twenty-five dollars. (Chitty on Cont., 8th Am. ed., 332; Olyphant v. Baker, 5 Den., 382; Terry v. Wheeler, 25 N. Y., 524, 525; 1 Parsons on Cont., 435, 441; 1 Wait, 490.) The wool was a part of the sheep and passed with the title to the sheep. (1 Wait, 821; Terry v. Wheeler, 25 N. Y., 526.) This contract cannot be contradicted by evidence of usage or custom. (Hinton v. Locke, 5 Hill, 437; Thompson v. Ashton, 14 J. R., 316; Adams v. Reed, 1 Seld., 159; Mut. S. Ins. Co. v. Hone, 2 Comst., 240, 241; Tucker v. Bishop, 16 N. Y., 402; Wheeler v. Newbould, id., 392; Higgins v. Moore, 34 id., 419; Cooper v. Kane, 19 Wend., 386.) The court correctly held that plaintiffs were entitled to recover the highest market price of the wool between the time of the demand and the trial. (Romaine v. Van Allen, 26 N. Y., 309; Blot v. Boiceau, 3 Comst., 85; Scott v. Rogers, 31 N. Y., 685.) Plaintiffs were entitled to recover interest from the time of the conversion. (Andrews v. Durant, 18 N. Y., 502; Sears v. Conover, 33 How. Pr. R., 324.)</p> <p>The contract was executory, and the title to the sheep did not pass to plaintiffs until the sheep were delivered and the money paid. (Pierson v. Hoag, 47 Barb., 343; Clark v. Dale, 20 id., 42, 61; Kelly v. Upton, 5 Duer, 336; Newcome v. Cramer, 9 Barb., 402; 1 Wait’s L. and P., 470, 546, and cases cited; 9 M. & N., 312; 2B.& Ald., 329; 18 J. R., 434; 6 Wend., 77; 1 Den., 591; Joyce v. Adams, 4 Seld., 291; Russell v. Nicoll, 3 Wend., 112; Field v. Moore, Hill & Denio, 418; Ward v. Shaw, 7 Wend., 404; Rapelye v. Mackie, 6 Cow., 250; McDonald, v. Hewett, 15 J. R., 349; Ward v. Shaw, 7 Wend., 404; Outwater v. Dodge, 7 Cow., 85.) Parol evidence as to the custom in such sales was proper to prove what the contract was. (2 Pars, on Cont., 1st ed., 47, 55; Smith v. Wilson, 3 B. & Ad., 728, cited in note 2 Parsons on Cont., 51; Cooper v. Kane, 19 Wend., 386; 2 Sarkie’s Ev., 258, 259; 1 Phillips’ Ev., 420, 421; Whitnel v. Gratham, 6 Term R., 398; Outwater v. Nelson, 20 Barb., 29; Fox v. Baker, 44 id., 541; Dawson v. Kittle, 4 Hill, 107; Goodyear v. Ogden, id., 104; Cowan & Hill’s Notes to Phil. Ev., 1408, 1409, 1412, 1413; Wadsworth v. Alcott, 2 Seld., 72; Flett v. Merrton, L. R. [7 Q. B.], 126; Moak’s Series, 1 Eng. R., 32; Humphrey v. Dale, 7 E. & B., 266; E. B. & E., 1004; Cuth-bert v. Cumming, 10 Exch., 809; S. C., affirmed, 11 id., 405; Van Santvoord v. St. John, 6 Hill, 157; Muncey v. Dennis, 1 Hurl. & Nor., 216; Smith v. Dann, 6 Hill, 543.) The court erred in holding .that plaintiffs were entitled to recover the highest price of the wool between the demand and the trial, with interest from the time of the demand. (Romaine v. Van Allen, 26 N. Y., 309; Andrews v. Durant, 18 id., 496; Kennedy v. Strong, 14 J. R., 128; Smith v. Griffith, 3 Hill, 333; Cortelyou v. Lansing, 2 Caines Cas., 200.</p>

In Diovember, 1867, the relator made claim to the board of supervisors of Madison county at its annual session for repayment of taxes alleged to have been illegally assessed against it, and paid by it, upon stocks of the United States exempt from taxation. The claim was made under chap. 938 of the Laws of 1867. The board rejected the claim. The relator then procured a writ of certiorari from the Supreme Court, directed to the board, which made return thereto.

This action was brought by the plaintiff as purchaser of certain premises in the city of New Tork, on a sale by a referee under a judgment for the foreclosure of a mortgage for moneys received by the defendant, who was the owner of the equity of redemption, in payment of rents that became due from tenants, from November 2d, 1864, to August 2d, 1865.

The action was brought to recover of the defendants, ás owners of the schooner “ Susan Orleans,” divers sums of money paid out and expended for the use of the said schooner, and for services performed by plaintiffs for the defendants in procuring freight for the said schooner and for other matters. The principal facts are stated in the opinion.

This action was founded upon a policy of insurance issued by the defendant on the 23d of May, 1865, to one George Brown. The policy was assigned by Brown to the plaintiff on the eleventh day of July, 1865, with the assent of the defendant, and on the 25th of December, 1865, the buildings covered by the policy were destroyed by fire. The court directed a verdict for the plaintiff for the amount of the claim.

the county of Erie, upon appeal from an order of the commissioners of highways of the town of Hamburgh, in that county, discontinuing a highway in that town.

Appeal by defendants, Coe S. Buchanan and Daniel A. Bullard, from an order of the General Term of the Supreme Court in the fourth judicial district, reversing a judgment entered in their favor upon a verdict. (Reported below, 61 Barb., 86.) The action was brought to recover damages occasioned by the explosion of a steam boiler, while the same was owned and being used by the Saratoga Paper Company, at their mill, situated in the village of Schuylerville, Saratoga county.

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial district, affirming a judgment entered upon an order dismissing plaintiff’s complaint on the trial.</p> <p>The action was brought to recover damages caused to the property of the plaintiff by the explosion of a steam boiler while the same was owned and being used by the Saratoga Paper Company at their mill situated in the village of Schuylerville, Saratoga county and State of New York, on the thirteenth day of February, 1864, by means whereof the boiler was thrown on to the plaintiff’s premises and through several of his buildings, thereby injuring and damaging the same.</p> <p>The defendants, Chite, were made parties defendants to the action with the Saratoga Paper Company and Coe S. Buchanan and Daniel A. Bullard, trustees and agents of said company, on the ground that they were the manufacturers of the boiler, and made the same out of poor and brittle iron and in a negligent and defective manner, in consequence of which negligence said explosion occurred.</p> <p>At the close of the evidence the complaint was dismissed as to the defendants Clute.</p> <p>The facts, so far as they are material to the decision in this court, are sufficiently stated in the opinion.</p> <p>This action is not based upon contract, and no privity of contract was necessary to exist or shown between plaintiff and defendants to warrant a recovery. (Thomas v. Winchester, 2 Seld., 397, and cases cited, 401; Farrant v. Barnes, 103 E. C. L., 533 ; Nolton v. West. R. R. Co., 15 N. Y., 444, 449.) Defendants were liable without proof of negligence on their part. (Hay v. Cohoes Co., 3 Barb., 42; S. C., 2 Comst., 159; Tremain v. Same, id., 163; St. Helen's Smelt'g Co. v. Tipping, Am. L. B. [Dec. ’65], 104.) Being agents and stockholders, they were liable the same as the paper company. (Suydam v. Moore, 8 Barb., 358, 360, 363; Judson v. Cook, 11 id., 642; Montford v. Hughes, 3 E. D. S., 591; Wright v. Wilcox, 19 Wend., 343; Phillips v. Wait, 30 N. Y., 78.) The evidence of negligence should have been submitted to the jury. (Kelsey v. Barney, 2 Kern., 425 ; Fero v. Buff. R. R. Co., 22 N. Y., 213; Johnson v. H. R. R. R. Co., 20 id., 65; Requa v. Holmes 16 id., 193.) The Olutes were properly made parties defendants in this action. (Code, § 118; Colgrove v. R. R. Co., 6 Duer, 382; S. C., 20 N. Y., 492; Davenport v. Ruckman, 16 Abb., 341.) Defendants having failed to take such objection by demurrer or answer, have waived it. (Code, §§ 144, 147; Fosgate v. Herkimer Hy. Co., 2 Kern., 580; Dillaye v. Wilson, 43 Barb., 261.)</p> <p>Plaintiff cannot recover; the damages are too remote. (Ryan v. N. Y. C. R. R. Co., 35 N. Y., 210; Loop v. Litchfield, 42 id., 351.) The act of putting up the boiler, not being tortious yer se, the principal, not the servant is responsible. (Ang. on Cor., § 579 ; Chapman v. N. Y. C. R. R. Co, 33 N. Y., 364; Montgomery Bk. v. Albany City Bk., 3 Seld., 459.) An agent is not liable for neglect of duty in the matter of his agency; the principal is alone liable. (Colvin v. Holbrook, 2 Comst., 126.) The boiler was in the hands of experienced and mature men, who assumed to know how to use it, and they are responsible for the use they put it to. (Letter v. N. Y. & H. R. R. Co., 2 Keyes, 154.)</p>

<p>The degree of care which a person owing diligence must exercise depends upon the hazards and dangers he may expect to encounter and the consequences which may be expected to flow from his negligence. Such care only is required as a man of ordinary prudence and capacity may he expected to exercise in the same circumstances.</p> <p>The same degree of care is not required of the carriers of passengers upon street cars drawn by horses as of railroad companies, whose cars are drawn by steam. No greater degree of care as to pedestrians in a street is required of a street railway company running its cars therein than is required of the driver or owner of any other vehicle.</p> <p>In the attachment of horses to its cars it is not bound to use the best method human skill and ingenuity have devised to prevent accidents. If it uses the method in general use, and which has been found usually adequate and safe, its duty in this respect is discharged.</p>

This action was brought to redeem certain mortgaged premises from a sale and foreclosure under the mortgage. On the 10th of December, 1855, one John Groff was the owner of the premises in question. On that day he, with the plaintiff (his wife), executed and delivered to one Daniel Groff a mortgage upon said lands, to secure the payment of $1,800, and interest. On the 7th of January, 1856, Daniel Groff assigned the bond and mortgage to the defendant, William H. Shankland.

' Appeal from judgment of the General Term of the Supreme Court in the sixth judicial district in favor of the plaintiff, entered upon an order denying a motion for a new trial and directing judgment upon a verdict. The action was brought to recover damages alleged to have been sustained by plaintiff by reason of his falling through, down or upon a defective sidewalk in the city of Elmira, in the month of July, 1864.

Appeal by Henry W. Scofield, one of the defendants, from an order of the General Term of the Supreme Court in the ' sixth judicial district, reversing a judgment in favor of the defendants, entered on the report of a referee, and granting a ‘new trial.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial district, affirming a judgment of Special Term dismissing plaintiff’s complaint.</p> <p>This action was brought to set aside an assignment by defendant, Dakin, of a bond and mortgage as fraudulent.</p> <p>The plaintiff commenced an action on a promissory note against Dakin as a non-resident. An attachment was issued to Tompkins county and served on one Miller for the purpose of attaching a debt claimed to be due from him to Dakin and secured by bond and mortgage. The plaintiff obtained judgment in the suit, issued execution thereon to the sheriff of Tompkins county, which is still in his hands unreturned. After the giving of the note and before the commencement of the suit Dakin assigned this bond and mortgage to his brother-in-law, the defendant Jewell. This assignment is claimed to be without consideration and fraudulent as to creditors, and plaintiff thereupon commenced the present action, asking to set the same aside. The court at Special Term, after hearing the plaintiff’s evidence, dismissed the complaint on the ground that the action could not be maintained while the execution was in the sheriff’s hands unreturned. The General Term affirmed the judgment apparently on the ground that the action should be in the name of the sheriff.</p> <p>Plaintiff had a right to bring this action in its name to enforce its lien by setting aside the fraudulent transfer. (Hendricks v. Robinson, 2 J. Ch. R., 283, 296; 17 J. R., 438; McElwain v. Willis, 9 Wend., 548, 561, 567; Falconer v. Freeman, 4 Sand. Ch., 565; Skinner v. Stuart, 13 Abb., 442, 454, 456; Crippen v. Hudson, 13 N. Y., 161; Rinchey v. Striker, 31 id., 140; 26 How., 75; 28 N. Y., 45; Greenleaf v. Mumford, 19 Abb., 470; S. C., 30 How., 30; Hall v. Stryker, 27 N. Y., 596; Frost v. Mott, 34 id., 251.) Plaintiff could reach the bond and mortgage by virtue of the attachment and execution through the sheriff, and this action is within the jurisdiction of a court of equity. (Code, §§ 232, 235, 237; 3 B. S., 5th ed., 80, § 7; Russell v. Ruckman, 3 E. D. Smith, 419 ; McKay v. Harrrower, 27 Barb., 463, 468, 469; Greenleaf v. Mumford, 19 Abb., 470 ; 30 How., 30.)</p> <p>If this is an action in the nature of a creditor’s hill it cannot be maintained. The execution has not been returned nulla bona. (Dunlevy v. Tallmadge, 18 Abb. Pr., 48; S. C., 32 N. Y., 457; Crippen v. Hudson, 13 id., 161; Beardsley Scythe Co. v. Foster, 36 id., 561; McElwain v. Willis, 9 Wend., 548; affirmed, 3 Paige, 505; Voorhees v. Howard, 4 Keyes, 371; Greenleaf v. Mumford, 50 Barb., 543, 557.) The allegation that the sheriff is unable to satify the execution or any part thereof does not cure this defect. (Beck v. Burdett, 1 Paige, 305; Dunlevy v. Tallmadge, 32 N. Y., 457; Shaw v. Dwight, 27 id., 244.) A fraudulent assignment of dioses in action stands on the same footing as a fraudulent assignment of any other property. (Willard’s Eq. Jur., 238.) This action cannot be maintained as an action in aid of the execution because the bond and mortgage cannot be reached thereby. (Beck v. Burdett, 1 Paige, 305; McElwain v. Willis, 3 id., 505; Mech. and Trad. Bank v. Dakin, 50 Barb., 587; S. C., 33 How. Pr., 316; S. C., 28 id., 502.) The action in aid of the execution can only be maintained by the sheriff. (Mech. and Trad. Bank v. Dakin, 50 Barb., 587.) The Code prescribes the proceedings to be taken on an attachment, and the parties are confined thereto. (Edgerton v. Ross, 6 Abb., 189; Dudley v. Mahew, 3 N. Y., 9 ; Sedgwick Stat. and Crim. Law, 92; Becker v. Torrance, 31 N. Y., 636; Jordan Plank-road v. Morley, 23 id., 554; Hollister v. Hollister Bank, 2 Keyes, 248; Hardman v. Bowen, 39 N. Y., 199.) The complaint was properly dismissed. Plaintiff had not exhausted its legal remedy. (Dunlevy v. Tallmadge, 32 N. Y., 459; Wilson v. Forsyth, 24 Barb., 105.)</p>

After the appeal was taken, the original plaintiff died, and the action was continued in the name of his -administrator. The action was slander.

This action was ejectment; the defence that the defendant was in possession under a lease; the facts appear sufficiently in the opinion. Defendant was a tenant at sufferance and was entitled to notice. (Woodfall’s Tenant Law, chap. 7, § 6, 237; Coke’s Littleton, 57, b; Wendell’s Blackstone, 150.) No action of ejectment can be maintained against him without a month’s notice to quit.

The action was brought to recover damages for injuries to plaintiff’s horse and wagon and merchandise, alleged to have been occasioned by the defendant’s negligence. The injury complained of occurred in a highway or street in Elmira. The defendant’s train of ears was standing in it, but not entirely across it. There was space enough between the rear car of the train and the sidewalk to allow the plaintiff’s horse and wagon to pass.

Appeal by defendants, Abraham W. Leggett and Phoebe B. Leggett, from judgment of the General Term of the Supreme Court in the second judicial district, affirming a judgment in favor of plaintiff, entered on the decision of the court at Special Term. This action was brought by plaintiff, as judgment creditor of Abraham W. Leggett, to set aside a deed executed by the latter to James R. Leggett, and one by the latter to Phoebe, wife of Abraham W. Leggett, as fraudulent and void.

The action was brought to foreclose a mortgage given by defendant, Chapman, to Eunice Chapman, to secure the payment of his bond of $5,490, and interest, which bond and mortgage were held by plaintiff as assignee.

Appeal fi'om order of the General Term of the Supreme Court in the fifth judicial district, reversing an order of Special Term setting aside a verdict in favor of defendants and granting a new trial. The motion was founded upon an alleged improper communication between the court and the jury after the latter had retired. The facts sufficiently appear in the opinion.

This action was brought to recover the possession of a horse. The horse had been taken in the action, and delivered to the plaintiff and retained by him to the time of the trial. There was conflicting evidence as to the title of the horse, but the jury found the title to be in the defendant, and assessed its value at $175, and damages for its detention by the plaintiff at seventy-five dollars.

<p>Under the provision of the general railroad act of 1850, requiring every corporation, organized under that act, to erect and maintain farm crossings, etc., for the use of the proprietors of lands adjoining such railroad (§ 44, chap. 141, Laws of 1850), it is the light of the corporation to determine where the crossing shall he located. In the exercise of this right, however, the interest of the corporation is not alone to be considered, but regard must be had to the convenience of both parties, and such a location must be made as will not .subject the proprietor to needless and unreasonable injury.</p> <p>The case of Wheeler v. The B. and 8. B.B. Oo. (13 Barb., 337) overruled.</p> <p>Plaintiff, owning land upon both sides of defendant’s road, brought this action to compel it to construct a suitable farm crossing, also claiming damages. The court which, tried the cause found that the crossing actually built by defendant was inconvenient for plaintiff, and not of easy access, and that the proper place for a crossing was where plaintiff desired. Held, that this established a cause of action.</p> <p>Instead, however, of directing a specific performance by defendant of its obligation, the court gave plaintiff a pecuniary compensation, to an amount less than the cost of erecting a new crossing in the proper place. Held, no error; that nothing in the statute prevents the giving of damages for the breach of duty on the part of defendant, and that defendant could not complain, as the judgment was more favorable than it was otherwise entitled to.</p>

(Reported below, 52 Barb., 390.) This action was brought to recover damages for injuries to the plaintiff’s road bed, caused by the same being washed and flooded in the years 1864 and 1865. The complaint alleges that an embankment and bridge, built and constructed for the defendant’s railroad, at and over Head’s creek, in the town of Irwin, Steuben county, dammed the stream so as to produce the flood and injury.

The complaint contained two causes of action ; and for the first cause alleged in substance that in Hay, 1855, the plaintiff agreed to convey to the defendant about an acre and twotliirds of an acre of land, together with the right of ingress and egress, to and from the land so to be conveyed, to the plaintiff’s land, and to build and keep in repair cattle yards and pens for live stock, sufficient to accommodate the shipping or transporting such stock to and from the cars to…

Appeal by the defendant Swift from a judgment of the General Term of the Superior Court of the city of Hew York, affirming a judgment against the defendants entered on the report of a referee. Rice, the other defendant, was not served with the summons, atid did not appear in the action. The nature of the action and the facts so far as they are material to the decision sufficiently appear in the opinion.

(Reported below, 49 Bari, 542.) This action was brought upon a promissory note made by defendant, payable to the order of one Henry Church, for the sum of $300. 'i The note was' made by defendant for the accommodation of Church, and was delivered to the latter without any restrictions as to the manner of its use. Church being indebted to plaintiff in a larger sum, transferred the note to him on account thereof, and the amount of the note was credited to him.

The nature of the action and the facts pertinent to the questions discussed appear in the opinion. At the close of the evidence upon the trial the court directed a verdict for plaintiff for the amount of the reward and interest, subject to the opinion of the court. Subsequently an opinion was rendered holding that plaintiff was not entitled to the reward, and directing the entry of a judgment dismissing the complaint. Judgment was entered accordingly.

The action was brought against Gray and one John M. Smith, for wrongfully talcing and converting legal tender notes to the amount of $2,525.81. The defendants, by separate answers, denied the allegations in the complaint, and justified under a warrant alleged to have been issued by the board of supervisors of Herkimer county (of which Gray was a member, as supervisor of the town of Herkimer in that county) to the defendant Smith, as collector of the said town.

The action was brought for a settlement of the accounts of the firm of Reimer & Mulcke, of which firm plaintiff claimed to be a partner. Held: that under the agreement the parties were not partners, and plaintiff was not entitled to any share of the goods of the film left unsold or to profits arising out of subsequent sales; that the contract was an entire one, and plaintiff’s compensation was to b.e determined by the result of the business at its termination ; that…

This action was to recover the balance of an account. Held: that the defence of non-joinder was properly overruled; that plaintiff was entitled to the commission received with defendants’ assent, but that no presumption arose from the assent to a commission in one case of such an assent in all; that defendants were entitled to all the profits made by plaintiff, their agent, in the prosecution…

This action was brought to recover the amount of a tax paid by plaintiff, alleged to have been illegally assessed upon a portion of its… Held: that the tax was not voluntarily paid (upon authority of Bank of Commonwealth v. The Mayor, ete., 43 N. Y., 189); and that as the demurrer admitted the allegations in complaint, that defendants held the whole amount illegally collected, it must be deemed to hold it for the use of plaintiff, and, having refused to pay it over on…

This was an action brought to recover damages for injuries sustained by plaintiff while attempting to get on to one of defendant’s cars. Held: error; that the question of contributory negligence was one of fact for the jury; also held (Johnson, C.), that the rule, requiring the absence of contributory negligence, was not established out of any tenderness for the negligent infliction of an injury, but to discourage carelessness; and that, in determining whether the fault…

This action was brought by plaintiff as judgment creditor of defendant, William Norman, to set aside a conveyance made by the latter to one Wiley and by Wiley to defendant, Margaret Norman, wife of William. Said defendants were married in 1832, in England. At different times prior to 1843 Mrs. Norman received from her father and others about $2,000, all of which she let her husband have without any agreement as to its return.

This was an action to recover $1,537.82, alleged to have been had and received by defendant for the use of the Auburn City Bank, plaintiff’s assignor. One Sheldon agreed to turn out to plaintiff certain securities, including a promissory note of $4,209.72, made by L. D. Robe, and indorsed by H. B. Hewitt & Co., to secure an indebtedness. The note was then in the hands of defendant as collateral to an indebtedness of Sheldon’s. Defendant consented to the arrangement.