Volume 51 — New York Supreme Court Reports

<p>Appeal from an'-order, made at the Albany Circuit, setting aside a verdict, as against the weight of evidence, and awarding a new trial on a motion made upon the minutes of the justice presiding at the trial.</p>

After the entry of a judgment herein, upon the defendant’s failure to appear or answer, he was arrested under an order procured by the plaintiff. The complaint alleged, among other things: First.

<p>Discharge of an imprisoned debtor by a sheriff under an order of a county judge — Code of Civil Procedure, secs. 2203, 2204 — when omissions, in the recitals of jurisdictional facts in the order, may be supplied by proof — if not recited or proved the order of discharge will not protect the sheriff.</p> <p>This action, brought against the defendant, a sheriff, for an escape, was defended by him upon the ground that the imprisoned debtor had been legally discharged. The plaintiff claimed that the order of discharge, introduced in evidence upon the trial, did not show jurisdiction in the county judge, as it failed to recite that the petition was “in writing,” “signed by the party,” or that a schedule was annexed thereto.</p> <p>Held, that the want of these allegations in the order was supplied by proof given upon the trial showing that the petition was in writing, signed by the party, and that the schedule was annexed.</p> <p>Bullymore v. Cooper (4G 1ST. Y., 236; affirming S. C., 2 Lans., 71).</p> <p>The order did not recite that the affidavit required by section 2204 of the Code of Civil Procedure had been made, and the proof showed that the affidavit used was made on February twentieth, while the petition was presented on March ninth.</p> <p>Held, that as the section above cited required the affidavit to bo “subscribed and taken by the petitioner on the day of the presentation of the petition,” the county judge had no jurisdiction to make the order, and that as the order of discharge contained no recital as to the making of such affidavit it did not orotect the sheriff. (Landon. J., dissenting.)</p>

Lawrence County Special Term overruling a demurrer interposed by the plaintiff to two counter-claims set up by the defendants in their answers.

<p>Evidence — the testimony of a physician as to the exclamations of a person, during an examination made eight months after the injury, are inadmissible — no recovery can be had for sufferings to occur in the future unless there is evidence in the ease to show that they will be sustained.</p> <p>Upon the trial of this action, brought by the plaintiff to recover damages for injuries sustained by being hit by a gate, maintained and managed by a railroad company at place where its tracks were crossed by a highway, he was permitted to prove by a doctor that more than eight months after the injury had been sustained the doctor examined the plaintiff for the purpose of determining his condition in reference to the injury. The doctor testified that the plaintiff “complained mofe or less of pain upon pressure about the neck, and pain when 1 attempted to move his head; ” that “ pressure upon the head, driving the head down upon the neck, caused pain, the patient winced, twisted, tried to get away from me.” At the time of this examination the doctor found no abnormal conditions of the plaintiff either from his personal examination or the application of tests by compass points or electricity, except such as appeared from the complaints and wincing of the plaintiff, and the scar on his forehead and ear.</p> <p>Held, that the court erred in admitting this testimony. (Per Mayham and Landon, JJ.; Learned, P. J., not concurring.)</p> <p>That the evidence could not be claimed to be admissible as part of the res gestee, as the complaints were made more than eight months after the injuries were sustained; nor from necessity as the plaintiff was a competent witness, and if his feelings, on being examined by the doctor, were competent or material evidence he could have been called on to swear to them.</p> <p>The judge charged the jury that the plaintiff was entitled to be fully compensated for all loss he had sustained, for the pain he has endured, and for the pain he was likely to endure in the future.</p> <p>Held, that as there was no evidence in the case from which the jury would have been justified in inferring that the injury was permanent, or one from which the plaintiff was likely to suffer in the future, it was error to so charge.</p>

Jonas Strauss, residing in the city of New York, and doing business in said city and also in San Francisco, died in New York in November, 1885, leaving’ a will by which the relators were appointed his executors and trustees. The will was duly admitted to probate in January, 1886, and the relators, who also resided in New York city, duly qualified as the executors thereof.

<p>Appeal from an order denying tbe relator’s motion for a peremptory writ of mandamus, and dismissing tbe alternative writ.</p>

<p>Appeal from a judgment m favor of the plaintiff, entered upon the trial of tins 'action by the court without a jury.</p>

<p>Purchaser at a sale on foreclosure — he may recover damages for a breach of a covenant of warranty contained in the deed conveying the properly to the mortgagor.</p> <p>In April, 1867, the defendant, Coe, conveyed certain premises hy a warranty deed to one Fisher, who, while in possession thereof, mortgaged the- same to the plaintiffs, and thereafter conveyed the same to one Fuller, who, in 1874, conveyed them to one Leavitt, who was, in 1878, ousted therefrom hy a party who recovered possession thereof under a claim of title paramount to the title conveyed hy Coe to Fisher.</p> <p>In an action commenced hy the plaintiffs in 1878 to foreclose his-mortgage a judgment was entered under which the premises were sold and conveyed to' the plaintiffs.</p> <p>Held, that as the plaintiffs thereby succeeded to Fisher’s rights, they were entitled to maintain an action against Coe to recover the damages sustained hy the breach of the covenant of warranty contained in the' deed.</p> <p>Christ Church v. Mack (93 ÍT. Y., 488) followed.</p>

<p>Appeal from an order made at Speeial Term denying a motion •for a peremptory mandatnus.</p>

<p>Appeal from an injunction order, made and entered in the above entitled action, in the county of New York.</p>

<p>Appeal from an order of the Special Term cancelling an assessment of personal property.</p>

In July, 1885, the Wallingford Bank, which then kept an account with the plaintiff, drew on the plaintiff a draft or check for the .sum of eight dollars, in the usual form, to the order of one Frank Saxton, and delivered the same to him. On the 15th of July, 1885, .Saxton requested the Eldred Bank to colleet the said draft or check, and thereupon indorsed the same and delivered the same to the Eldred Bank.

On February 1, 1886, and for several years prior thereto, the defendants, Augustus W. Eitzinger and Frank L. Eitzinger, were partners in business at Indianapolis under the firm name of Eitzinger & Co. Prior to said date the said firm had procured the plaintiff, the Nassau Bank, to discount five notes for $5,000 each, and had given to the plaintiff to secure the payment of said five notes a quantity of commercial paper and 230 shares of the capital stock of the Franklin…

<p>Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.</p> <p>The plaintiff is an Ohio corporation. The New York Brewing Company during the years 1883 and 1881 was a domestic corporation created and existing under the laws of the State of New York for the formation of corporations for manufacturing, mining and other purposes. During the said years the defendants were the trustees of the said New York company. In the year 1884, and prior to the 19 th of February of that year, the plaintiff sold and delivered to the New York Brewing Company goods to the amount of $1,015, for which the company gave the plaintiffs their note, dated February 19, 1884, payable three months after date. At the time of the making of said note, and at the maturity thereof, the defendants were still the trustees of the Brewing Company. The note, although long past due, has never been paid. On the 1st day of January, 1884, more than a year had elapsed from the time of the filing of the certificate of incorporation of the New York Brewing Company, which company did not, nor did the defendants nor any of them within twenty days from or after the 1st day of January, 1884, or at any time thereafter, make a report stating the amount of the capital of said company or of the proportion actually paid in, or of the amount of its existing debts, nor did they at any time after the 1st of January, 1884, publish such a report or file the same in the office of the clerk of any county in the State of New York. On the 22d of December, 1883, such a report dated on the 21st of December, 1883, signed by the defendants, was published in the New York World, and on the 28th of December, 1883, filed in the office of the clerk of the city and county of New York. The plaintiff upon this state of facts, having brought its action against the trustees to recover its claim for a failure to file such report, judgment was rendered in its favor, and from such judgment this appeal is taken.</p>

<p>Letters of administration — the non-residence of the person entitled to receive them does not prevent their being granted to him.</p> <p>Tlie surrogate of New York having granted letters of administration upon the estate of one David Williams who died in Tennessee, leaving him surviving no widow, child or father, to the mother of the said David, an appeal was taken therefrom by a half brother of the deceased, who resided in this State, upon the ground that the mother being a non-resident of this State was excluded from acting as administrator by the policy of the law of this State.</p> <p>Held, that the decree of the surrogate should be affirmed.</p>

<p>Attachment— Oode of Givil Procedure, §§ G3S and, 638 — the affidavit need not show ' that an action has been commenced.</p> <p>Upon an appeal from an order denying a motion to vacate an attachment, upon the ground that it appeared on the face of the order on which the warrant was granted that at the time the application was made for the warrant the action had not been commenced or the summons served, or issued' for service, it appeared that, in the affidavit presented to the judge who granted the attachment, it was stated “that the plaintiff is about to commence an action against the defendant for the cause above stated by issuing the summons hereto annexed.”</p> <p>Reid, that as the summons was made out and accompanied the affidavit a sufficient compliance with the requirements of section 638 of the Code of Civil Procedure was shown.</p> <p>That section 636 of the said Code does not require that the affidavit should state that an action had been commenced, but simply that one of the causes of action specified in section 635 existed, and the plaintiff, after obtaining the attachment, has thirty days in which to serve the summons.</p> <p>Ptekardt v Antony (27 Hun, 269) followed.</p>

<p>Appeal from a judgment entered on the dismissal of the plaintiff’s eom plaint at tlie circuit.</p>

<p>Sale on foreclosure — a purchaser acquires all .the rights of the mortgagor — when a mortgagee purchasing at a sale and conveying the land to a bona fide purchaser will be compelled to account to the holder of an unrecorded deed who was not made a parly to the foreclosure action — the effect of filing a lis pendens is avoided by proof of notice of the unrecorded deed — what evidence is required to charge a client with notice of facts known to his attorney.</p> <p>By the judgment entered in this action the plaintiff was declared entitled to redeem certain premises in the city of New York from a mortgage executed by one Decker, on December 13, 1877, to one Hewlett, to whom the premises, on September 32, 1880, had been sold at a sale under a judgment entered in an action brought by him to foreclose the mortgage, to which action the present plaintiff was not made a party. The deed from the referee having, on December 17,1880, been recorded in the register’s office, the premises were thereafter conveyed by Hewlett to the defendant Schwannecke for the consideration of $2,500, $2,000 of which was secured by a mortgage upon the premises.</p> <p>The plaintiff claimed to be entitled to redeem under a deed from Decker, executed on July 25, 1878, but not recorded until March 15, 1881, the action of foreclosure having been commenced on July 26,1880, and a notice of the pendency of such action having been filed in the office of the clerk of the city and county of New York on July 16, 1880. From the evidence given upon the trial the court found as a fact that the plaintiff Hewlett had actual and express notice of this deed at and before the time of the commencement of the action.</p> <p>Held, that, even if this notice were established, it would not affect the defendant Schwannecke, who was, to the extent of the $300 (which it was to he presumed from the recitals in the deed he had paid), to be treated as a purchaser in good faith.</p> <p>That the defendant Schwannecke’s right to be treated as a horn fide purchaser was not affected by the fact that Hewlett did not acquire title by a direct conveyance from Decker, as the effect of the foreclosure and sale was precisely the same as though Decker had executed and delivered a deed of the premises to him.</p> <p>That it did not follow from this result that the plaintiff would be deprived of all remedy, if the action could be legally maintained in other respects, as the defendant Hewlett might still be required to account for what he had received upon the sale and conveyance of the property, and in that manner the plaintiff might secure an equitable adjustment of her rights.</p> <p>That in order to avoid the effect given to the filing of the Us pendens by section 132 of the Code of Procedure, which was applicable to the filing of the notice in the action of foreclosure, it must be shown that Hewlett, the plaintiff therein, had notice, at or before the time of its commencement, of the existence of the deed to the plaintiff. That proof of this fact would probably defeat the judgment in the foreclosure suit, so far as to render it inoperative against the present plaintiff, as it would have been a fraud on Hewlett’s part to foreclose his mortgage and sell the property without making the plaintiff a party to the action if he, in fact, knew her to be the owner of the equity of redemption.</p> <p>That as there was no evidence to prove that Hewlett himself had any notice or information of the existence of the deed from Decker, the finding that he had such notice could only be supported by a finding that he was affected with notice of the existence of the deed, from information given concerning it to his attorneys, who had loaned the money which the mortgage was given to secure, and had acted as his attorney in the action brought to foreclose it.</p> <p>That the evidence given in this case was not sufficient to sustain such a finding, as it did not show that the information or knowledge of the attorney was acquired while engaged in the business of Hewlett, or that the information, however acquired, was retained by the attorneys down to the time of the commencement of the action of foi'eclosure and was then present in their minds.</p> <p>Holden v. N. T. and Erie Bank (72 FT. Y. 286) distinguished.</p>

<p>Appeal by Amory A. Lawrence and others as subsequent attaching creditors from an order denying a motion to vacate an attachment issued on the 9th of October, 1886, in favor of the plaintiff and against the defendant.</p>

<p>Appeal from an order directing the defendant to serve a further bill of particulars or that the first counter-claim set forth in his answer should be dismissed.</p>

<p>Appeal from a judgment in favor of the defendants entered upon the report of a referee.</p>

Appeal by tbe plaintiff, Harlin James Woodward, and by tbe defendants, Henry A. James, ílonorab C. James, Howard L. James, Horace E. James, Juba W. Pbillip and Virginia P. Kean, from that portion of tbe judgment of tbe Special Term, construing tbe will of Frederick P. James, deceased, which decides, first, that tbe defendant Julia C. James is entitled to one-balf the gross income of tbe estate; and second, that tbe devisees take per stirpes and not per capita, and third,…

<p>Appeal from an order and a judgment sustaining the plaintiffs’ demurrer to the' answer.</p>

■Appeal from a judgment, entered upon the trial of this action by the court without a jury, directing a' tax levied upon property of the plaintiff to be canceled and annulled, and' restraining the defendant from enforcing the tax or the lien created thereby.

Appeal by tbe plaintiff from a judgment dismissing the complaint, on the ground that there was no evidence showing negligence'on the part of the defendant, and also on the ground that the absence of contributory negligence was not shown on the part of the deceased, but that the presence of contributory negligence had been proven on his part.

This action was brought to recover for goods sold and delivered by the respondents to the appellants. The answer was payment.

<p>Appeal from a judgment in favor of the plaintiff entered u on a verdict directed by the court.</p>

By the first report, which was finally confirmed on March 10, 1885, the sum of $15,000, with interest from the date of the order, and the costs and expenses of the proceedings, were awarded to Story, to whom they were paid by the company on March 21,1885, Upon an appeal taken by the company to the General Term, the report was set aside and a new appraisal was ordered by new commissioners, who, on November 27, 1885, made a report by which’ they awarded to Story the sum of…

<p>Appeal from a judgment entered upon the decision of the court, rendered at the Erie Circuit, on a trial by the court without a jury.</p>

Motion by the p’aintiff for a new trial on exceptions taken at the Cayuga Circuit and ordered to be heard at the General Term in first instance.

<p>Deed — construction of the word “ tow-path ” when used as a boundm'y line-t? measure of damages for a breach of the covenants in a deed, stated.</p> <p>In November, 1880, the defendant conveyed to the plaintiff a house and lot in Penn Yan, lying between Lake street and what was formerly the Crooked Lake canal, the lot being described as bounded on the north by the “tow-path.” At the time of the conveyance the canal had been for several years abandoned, and the land owned by the State had been conveyed by it to a railroad company. Upon the trial of this action evidence was given tending to show that at the time the deed was executed a “ tow-path” was visible, and that the canal lands owned by the State extended some twenty-five feet south of the place where the tow-path ippeared to be. While the parties were in negotiation the defendant took the plaintiff and his wife on the premises and showed them the lot in the rear of the house, and the plaintiff then saw, but did not particularly notice, the tow-path. The plaintiff having been evicted from that portion of the premises described in the deed which belonged to the State, brought this action to recover damages for a breach of the covenants of warranty, seizin and quiet possession contained in the deed.</p> <p>Held, that he was entitled to maintain the action.</p> <p>That the contention of the defendant’s counsel that the word “ tow-path,” as used in the deed, was a general and not a particular designation of the north boundary of the premises, and that it. included not merely the beaten track, but also the adjacent lands, proper and necessary for its construction and maintenance, in other words, the strip of land owned by the State south of the canal, could not, under the circumstances of this case, be sustained.</p> <p>That as the State owned the land taken for canal purposes in fee, the general rule applicable to the case of a conveyance of land, bounded on an established highway, was not applicable to this case.</p> <p>Upon the trial the plaintiff was allowed to recover damages, based upon the idea that the measure of damages was the difference in value between the entire premises described in the deed and the portion remaining after the eviction.</p> <p>Held, that the court erred in so charging.</p> <p>That the measure of damages, in actions of this description, is such part of the original price as bears the same ratio to the whole consideration as the value of tlie land, to which the title has failed, bears to the value of the whole premises.</p> <p>Ordinarily the recovery does not include subsequent improvements or rise in ■market value, but it is limited to an aliquot part of the value of the entire premises, as fixed by the price paid, with interest not exceeding six years.</p>

<p>Appeal from a judgment of the Erie County Court, entered on a verdict in favor of the plaintiff directed by the court.</p>

<p>Appeal from a judgment of the Court of Sessions of Erie county, sustaining a demurrer to the indictment herein.</p>

<p>City ordinance forbidding noise in streets — when singing by members of the Salvation Army does not constitute a nuisance or violate such an ordinance —form of judgment for the penalty and of the execution to be issued upon it.</p> <p>The relators were convicted of violating a penal ordinance of the city of Rochester, which provided that no person shall make, aid, countenance, or assist in making, any noise, disturbance or improper diversion in any of the streets, public squares, lanes, alleys or other public places in the city of Rochester; nor shall any assemblage or crowd of persons collect in such streets, public squares, lanes or alleys, or on any of the bridges, to the annoyance or disturbance of any of the citizens or others, under a penally of ten dollars for each offense. Upon the trial it appeared that on the occasion in question (a Sunday afternoon) seven members of what is known as the “ Salvation Army,” including the relators were walking in single file on the sidewalk on North avenue, towards and near their barracks. Three of them were singing the words of a religious song, and one of them was carrying a small flag. Their object was to draw into their barracks those who were on the streets and in the saloons in order to convert them and to persuade them to leave their evil ways.</p> <p>There was no evidence tending to show that there was any disorderly crowd, or that there was anything indecent or immoral in the appearance or conduct of the relators, or in the words which they sang, or that any person was disturbed or annoyed by their singing.</p> <p>Held, that the conduct of the relators did not constitute a nuisance, nor did it justify their conviction of a violation of the ordinance.</p> <p>That the provision of the ordinance that no person should make any noise in the public streets was not to be construed literally, nor was it intended to interfere with individual liberty of action in any respect, except so far as might be necessary to preserve the public peace and order and to prevent public annoyance or disturbance.</p> <p>That a procession in a public street is not necessarily a nuisance.</p> <p>That the fact that the occurrence was on Sunday did not affect the question.</p> <p>That it was not pertinent to inquire into the sentiments or purposes of the organization of which the relators were members, or the expediency or propriety' of their practice, in a religious or moral point of view, so long as there was nothing in their conduct which was unlawful or which threatened some tangible public or private mischief.</p> <p>Judgment was taken against the relators “for ten dollars or to be imprisoned in the Monroe County Penitentiary for twenty days.”</p> <p>It seems, that the court had no power to enter such a judgment; that, under the provisions of the city charter and the ordinances passed pursuant thereto, it could only enter a judgment ior tlie penalty, and that the execution to be issued thereon could only direct the imprisonment of the defendant in case no property of the defendant could be found out of which to make the amount of the judgment. (Smith, P. J.)</p>

<p>Appeal from a judgment entered on tlie decision of the court in a case tried at the Erie Equity Term.</p>

<p>Action for divorce on the ground of adultery — the right to a trial of the issue by a jury is a constitutional one — it cannot be reduced to a discretionary one by the General Mules of Practice— General Mule No. 81 — to what class of cases it must be confined.</p> <p>In this action for divorce, upon the ground of alleged acts of adultery of the defendant, the commission of which were denied by him in his answer, the plaintiff, on notice, moved for an order directing such issues to be tried by a jury. The motion was denied on the ground that the application was not made within ten days after the issue was perfected, as required by General Rule No. 81, without prejudice to a renewal of the motion addressed to the discretion of the court.</p> <p>field, that the order should be reversed.</p> <p>That the right to have the issues of fact upon the question of the alleged adultery tried by a jury was preserved by the Constitution, and could not be modified or limited by a rule of practice so as to reduce it to a matter in the discretion of the court if not made within ten days after issue.</p> <p>The limitation of time for making such application, as a matter of right, imposed by Rule 31, is applicable to the cases embraced within the provisions of section 971 of the Code of Civil Procedure, and those in which the framing of specific issues is not requisite for the trial, and it cannot have the effect of qualifying the right to make the application and have it granted in an action like this, where the right of trial hy jury exists and the framing of issues is essential to enable the party to have a trial of the issues in that manner.</p>

Motion by the defendant for a new trial on exceptions taken at the Cattaraugus Circuit, and ordered to be heard at the General Term in the first instance.

<p>Appeal from a judgment of the Cattaraugus Oyer and Terminer, convicting the defendant of the crime of murder in the first degree, and directing the execution of the sentence.</p>

Appeal by the people from the judgment of the Ontario Sessions reversing the judgment of a Court of Special Sessions convicting the defendant of an assault.

<p>Appeal from an- order of the Erie Special Term appointing ■Commissioners to ascertain and appraise tlie compensation to be made to Catharine Miller-, as the owner or person interested in a right or easement on ’certain real ‘éstate.</p>

<p>County Court —power of, to settle controversies between creditors and an assignee — a claim to property, m possession of an assignee who denies the claimant’s title, should not be determined on the petition of the davmamt.</p> <p>One Potter having presented to the County Court of Wayne county a petition praying that Durfee, the general assignee of one Howd, be directed to deliver to Potter certain property which he claimed to own, and the assignee having opposed the application on affidavits, the County Court directed the issue so made to he heard and determined by a referee. Upon the report of the referee, who found that the petitioner owned the property and that he was entitled to a judgment requiring the assignee to return it to him, a judgment for such relief with costs, was entered by the petitioner without any direction from . the court</p> <p>Held, that an order of the County Court, granting a motion made by the assignee to have the judgment vacated and set aside, should be affirmed.</p> <p>That the County Court had no power to determine the controversy between the - claimant and the assignee, as to the title to the property in question on the petition of the claimant, where the assignee was rn possession of and claimed to own the property.</p> <p>That the proceeding instituted by the claimant was a special proceeding, and that no judgment could be entered therein without the direction of the court</p> <p>That the costs in such proceedings are wholly in the discretion of the court, except where a right to them is expressly given by statute.</p>

<p>Contraéis made by an executor do not bind the estate — actions for breach of them, must be brought against the executor as an individual — right of creditors to a lien upon money used, by an executor in carrying on a business as directed by the testator.</p> <p>Upon the trial of this action, brought in a County Court against the defendant, as the executrix of her deceased husband, to recover the price of one car load of coal sold and delivered to her, it appeared that the testator had, by his will, authorized his executrix to continue the business of manufacturing and selling starch for the period of ten years from the time of his death, and to use the capital then invested in such business and to divide the proceeds and profits of the business between the executrix and the testator’s children. It was conceded that the coal was purchased to be used in the starch business.</p> <p>Held, that no cause of action against the executrix, in her representative capacity, was established by these facts, and that a motion made by the defendant for a nonsuit should have been granted.</p> <p>Austin v. Munro (47 N. Y., 360); Thompson v. Whiimarsh (100 id., 35) followed. Before the judgment was entered a motion, made by the defendant to set aside the verdict and for a new trial, was denied by the County Court, which permitted the plaintiff to enter a judgment containing a provision directing that it be enforced against the property of the decedent’s estate invested in the business carried on by the defendant, as executrix, for the carrying on of which business the coal in question was purchased.</p> <p>Held, that the court erred in so doing as the complaint was not framed for the purpose of obtaining relief of this character; nor was the judgment, as so modified, capable of being enforced so that the rights of other creditors would be protected.</p>

<p>Might of a raibroad company to locate its route — when its act in so doing is not subject to remew by the courts —1850, chap 140, secs. 18, 22 — a person or corporation attempting to hinder or delay it from constructing its road will be enjoined from so doing,</p> <p>When a corporation, organized in compliance with the provisions of the general railroad act (1850, chap 140), has made a map and profile of the route intended to be adopted by the company and has caused the same to be duly certified and filed as required by section 22 of the said act, it has acquired a vested and exclusive right to build, construct and operate a railroad on the line which it has adopted, subject to the right of other railroad companies to cross its route and lands in the way and manner and for the purposes provided by law.</p> <p>Although the legislature has required that the general termini and route must be stated in the articles of association, it has left to the company the right, to locate the route in other respects, including the precise termini and the intermediate points, after it has caused surveys to be made and has ascertained which is the most feasible Line to adopt. So long as the company acts, in good faith and within the limits of the powers conferred upon it hy the act, its exercise of the discretionary power conferred upon it by the act cannot be reviewed by the courts, except upon the application of an aggrieved person over whose land the route is located, made as provided in section 22 of the said aot.</p> <p>On June 9, 1886, the plaintiff was organized, under the general act of 1850, for the purpose of building and constructing a railroad, commencing in the village of Canisteo, in the county of Steuben, and terminating at a point on the line of the Lackawanna and Pittsburg Railroad Company, in the town of Burns, Alleghany county, via the village of Hornellsville. The plaintiff thereafter surveyed and located its route, filed a map duly certified as required by the act, caused notices to be served on the landowners over whose lands the road was located, acquired the right of way for the greater portion of its entire • line, and was in good faith proceeding with due diligence to complete and put its road in operation. In the village of Hornellsville the route adopted by the plaintiff passed for some distance along and beside the lands of the defendant corporation upon lands which were owned in fee by the defendant Babcock, to which the plaintiff had acquired no title nor had any proceeding been instituted to condemn the same. After the defendant corporation had been served with notice of the proposed route it took a lease from Babcock, for the period of three years, of a piece of land between its road and a brick-yard and laid a switch thereon. The plaintiff, having caused this track to be taken up, and having laid down a section of its own track, about ninety feet in length, and placed rails thereon, commenced this action to restrain the defendants from interfering with or placing obstructions upon its road-bed, and procured therein a temporary injunction which was upon the return day dissolved.</p> <p>Held, that as it appeared from the affidavits, and the history of the proceedings and the declarations of the agents and managers of the defendant corporation, that in taking the lease -and in constructing the switch it acted maliciously and in bad faith, and for the purpose of hindering, annoying and delaying the plaintiff in the construction and completion of its road, the plaintiff was entitled to a preliminary injunction against the defendant corporation, which should be continued during the action and thereafter made permanent if the facts above stated should be proved upon the trial.</p> <p>Osborn v. United, States Bank (9 Wheat., 740-841;: Oroton Turnpike Company v. Byder (1 Johns. Ch., 611): T. and P. C. Bailroad Company v. W■ and V. Bailroad Company (12 Phil. R., 642); Contracosta Bailroad Company v. Moss (23 Cal., 423) followed.</p> <p>That the injunction was properly dissolved as to the defendant Babcock, as he was the owner in fee and entitled until the plaintiff acquired the right, by purchase or otherwise, to construct its railroad upon his land, to remain in possession thereof, and occupy, or sell or lease the same, without any restraint arising from the location of the road over the premises.</p>

Appeal from an order made at Chambers by a justice of the Supreme Court, adjourning proceedings and granting leave to the petitioners to serve and bring in other parties; and also' from an-order made by the same justice appointing commissioners to' examine and determine whether the appellants proposed route-should be changed under section 22 of the railroad act as amended,

<p>Nuisance — when an open area near a public alley is one — a person injured while passing along the alley is not guilty of contributory negligence because of his knowledge of the defect — liability of the owner because of his failure to erect proper guards — when he is chargeable with constructive notice of the condition of the alley.</p> <p>Upon the trial of this action, brought to recover damages resulting from the death of one Bond through the negligence of the defendants, it appeared that the defendants Smith and Davis were the owners of a four-story brick building on the east side of Main street, in the city of Buffalo, running through to a public alley, known as Webster’s alley, which runs southerly from Seneca street, along the rear of the buildings fronting on Main street, and is a cul de sac. The buildings on each side of the defendants’ store are built to the line of the alley, but the defendants’ rear wall, is about three feet from the alley, between which and the rear wall there is an open area three feet wide and eight deep, with no guard except a stone wall that extends six or seven inches up above the surface of the alley, just high enough so that a person in a dark night could stub a foot against it and fall over into the area.</p> <p>The plaintiff’s intestate was employed as a watchman to go through the alley at least once an hour during the night and examine the doors and windows of buildings owned or occupied by subscribers to the agency, who employed the watchman. The defendants were not subscribers and it was not the intestate’s duty to examine their doors. On September 17, 1884, between twelve and one o’clock a. m. , the watchman was found lying on his back in the northerly end of the area with his head to the south. No one was present or saw him fall into the area. He was taken out and carried home where he died on October seventh from the injuries received from falling into the area. The night was dark, and the evidence tended to show that a public lamp therein was not lighted on that night.</p> <p>Held, that the question of contributory negligence on the part of the deceased was properly submitted to the jury, and that a verdict in favor of the plaintiff would not be disturbed.</p> <p>That as the alley was public a person traveling thereon was justified in assuming that it was safe, and the fact that he had previous knowledge of the defect thereon did not, per se, establish negligence on his part.</p> <p>That, although the area was not within the limits of the alley, yet if it was so near to it as to endanger persons passing along the alley, it was a public nuisance.</p> <p>0am v. Oily of Syracuse (29 Hun, 105; S. C., 95 NT. Y., 83-89); Kileyv. Oily of Kansas (69 Mo., 102); Jones v. Gity of New Haven (34 Conn., 141) followed.</p> <p>The defendant Bassett had owned and occupied the premises for some twenty-eight years, and until 1881, when he sold and conveyed the premises to the defendants Smith and Davis, but still continued in the use and occupation thereof as their tenant under a lease by which he was to keep the premises, and every part thereof, in good repair during the term, the lessors reserving the right to enter in person or by agent at all reasonable times of the day to examine the same and to make such repairs thereon as they should think requisite. The area was made many years before the accident for-the benefit and convenience of the owners and occupants of the buildings. The owners were residents of Buffalo, their office being on Main street, nearly opposite the building in. question, and they had passed this building many times and been in it.</p> <p>Held, that the owners were chargeable with constructive notice of the existence of the area, and were liable for the damages occasioned by their neglect to abate the nuisance occasioned by its being left unguarded.</p> <p>Corilwcton Stone Boad v. The Buffalo, New York and Eh'ie Baih'oad Company (51 . N Y.,573); Wolfv. Kilpatrick (101 id., 146) distinguished.</p>

of the plaintiff, entered in Livingston county, on the report of a referee. On the 23d day of May, 1881, one T. J. Reynolds made and -entered into a contract with the defendants, who were copartners ■doing business under the Arm name of Lewis Brothers, for the purchase of a quantity of railroad ties. The contract was in writing and of which the following is a copy: “ May 23, 1SS1. “ Messrs.

The verdict was for $1,000 in favor of the plaintiff. The plaintiff was injured on the 4th of September, 1883,while in the discharge of his duties as car repairer of the Rome, Watertown and Ogdensburg Railroad Company, in their yard, about, a quarter of a mile from'the tracks of the New York Central and Hudson River Railroad Company.

Also declaring due to the plaintiff, at the date of the referee’s report, $891.71 on the contract for the sale of the property to the defendant, and awarding possession of the premises to the plaintiff, unless the defendant shall redeem the premises upon payment of the aforesaid sum within forty days, with interest and costs, and requiring the plaintiff if such redemption shall take place, to execute and deliver to the defendant “ such a deed of conveyance of said premises…

<p>Evidence — right of a witness to read, a paper to refresh Ms memory — what declarations of a person who is alleged to have signed a lost contract may he proved to establish its existence — when to prove its contents.</p> <p>This action was brought by the plaintiff to recover for labor and. services alleged to have been performed for the defendant’s testator, T. B. Slingerland, pursuant to a written contract for the manufacture and sale of a compound, known as “The Old Homestead "Wild Cherny Bitters,” in a bottle for which the plaintiff had the patent. Upon the trial, the plaintiff being unable to produce the original contract, and the defendant having failed to produce it after having been notified to do so, the plaintiff produced what was claimed to be a copy of the original paper, which was dated April 20,1805, and purported to be executed by both parties and witnessed by one Q-. S. Armstrong, and called a witness, who testified that he was acquainted with the handwriting of the parties to the alleged agreement; that he saw an original paper in New York, which was signed by the plaintiff and Slingerland; that seals were opposite the names; that he read the paper; that the paper was in a safe, the key of which he had, that at the request of the plaintiff he took the paper from the safe and made a copy of it, and that the paper produced by the plaintiff was that copy; that the original paper was not in the handwriting of the paintiff or Slingerland, and that he could not tell in whose handwriting it was; that the safe was afterwards removed to Slingerland’s residence, the paper being then in the safe, since which time he had never seen it.</p> <p>The plaintiff then called an attorney, who testified that he drew a contract between the plaintiff and. Slingerland; that it was in reference to the manufacture of wild cherry bitters; that he drew it at the suggestion of both the parties; that he did not keep it, and thought he delivered it to one of the parties to draw a copy for the other; that he thought the paper was executed in his presence; that he could not state the contents of the paper with any definiteness, that he only knew to what it referred. He was then asked to read the paper produced by the plaintiff and then state all he recollected of the contents “ of the contract he drew.” Upon the objection of the defendant that the witness had no right to look at the paper and then give his evidence the referee refused to allow the witness to answer.</p> <p>Held, that he erred in so doing.</p> <p>That if the witness had been allowed to refer to and read the paper his recollection might have been refreshed, his memory quickened, and he thereupon might have been able to state the contents of the paper which he drafted.</p> <p>Huffv. Bennett if, Seld., 338) followed.</p> <p>The plaintiff called another witness, who testified that he had been acquainted with both the parties and had seen them at the manufactory; that he had seen and heard the paper read more than once; that he heard Slingerland speak of it in conversation with the witness’ father; that he had seen Slingerland write, and knew his handwriting; that the paper was signed by both Scott and Klinger land, and that there were seals after their names. He was then asked questions as to whether the paper provided for or referred to the manufacture of Old Homestead Wild Cherry Bitters; and was also asked to state its contents and what he had heard Slingerland say as to its contents, and what he had heard him say as to the terms of employment between him and the plaintiff. Objections to those questions as incompetent and immaterial, and that the contract claimed by the plaintiff to be in writing was the best evidence, were sustained by the referee.</p> <p>Held, that he erred in so doing, as the questions called for evidence which would tend to establish the existence of the original paper and the contents thereof.</p>

Appeal by the defendant from a judgment entered upon a verdict rendered in the County Court of Onondaga county, and also from an order denying a motion for anew trial made upon the judge’s minutes. Upon a former appeal to the General Term a new trial was granted, holding “ that plaintiff’s evidence should have been confined to the market value at the time of the conversion.

Motion, by tbe plaintiffs and respondents, to dismiss tbe appeal “upon the ground that said appeal is taken from a judgment rendered or made by default, and is unauthorized, and upon the further ground that no case and exceptions has been made and filed.” In September, 1884, this action was commenced to obtain the actual partition, or, if that could not be had, the sale of certain lands described in the plaintiff’s complaint.

This action was brought by plaintiff as the daughter and heir of Mary Malaney, deceased, who died, seized, holding and in possession of the premises described in the complaint. The action is founded on section 1537 of the Code of Civil Procedure.

<p>Appeal from parts of a report of commissioners, fixing and determining the points and manner of the crossing of the New York, Lake Erie and Western Railroad Company, in the town of Chemung, by the petitioner’s railroad, and from the order confirming the same.</p>

<p>Divorce — not granted when hath parties are guilty of adultery — evidence—recriminating chargee sustained on less than would he required to sustain an action for adultery.</p> <p>If both parties to an action, brought by a husband to procure a divorce from his wife on account of her adultery, have been guilty of adultery, neither is entitled to a judgment of divorce.</p> <p>A recriminating charge, made in such an action by the wife, may be sustained on evidence not as strong as might be necessary to sustain the suit for adultery.</p>

<p>Certiorari to review tlie action of the resj>ondents, tlie members of the board of commissioners of police of the city of Oswego, in removing the relator from his position as captain of the night watch in said force.</p>

<p>ffaffrant of attachment — Oode of Ovett Procedure, see. 682 — a party proceeding under it must show that he has acquired a valid lien upon the property.</p> <p>To entitle a person other than the defendant to move, pursuant to> the> provisions of section 683 of the Code of Civil Procedure, to vacate or modify a warrant of attachment, he must show that he has acquired a lien; upon or an interest in the property held under the prior attachment, before- he has any standing in court to move to vacate the prior attachment.</p> <p>Whether or not he has such a lien is a question which the prior attaching creditor may dispute, and if the facts be decided.against the.moving party, his motion must fail.</p>

<p>Oeieral assignee for the benefit of creditors — when an assignee who volunlaril deposits Vie,moneys of the estate with a co-trustee, who is an individual banker, is liable for the same if lost by his failure.</p> <p>In this action, brought to compel the defendants, the general assignees of one Beadle, to render an account and distribute the assets among the creditors, the appellant G-illet sought to avoid liability for any part of the balance found due, upon the ground that he had intrusted his co-trustee, Hall, a man in good credit, with the management of the trust estate. Hall, who was at the time of the assignment a banker in the city of Elmira, continued to carry on that business until July 20,1884, when he failed and made a general assignment for the benefit of his creditors. He testified that a large portion of the moneys was at first deposited to the credit of the assignees in the Chemung Canal Bank and in the Second National Bank, but that it was shortly thereafter drawn out by the joint checks of the assignees and deposited with him, and that he kept an account with the assignees and credited the moneys collected to them, with the knowledge of Gillet, and, also, that he used the trust fund in his private business.</p> <p>Held, that as the defendant Gillet had voluntarily placed the money in the sole custody of his co-assignee, whom he knew to he añ individual banker, he was guilty of gross negligence, and that, under the well settled rules of law relating to the liability of trustees for their conduct, both defendants were properly held liable for the loss of this sum.</p> <p>Duffy v. Duncan (33 Barb., 587; affirmed, 33 N. Y., 187); Berwick v. Halsey (4 Bedf., 18) followed.</p>

<p>Overseer of the poor — may receive cm assignment of a claim as indemnity from a person who is chargeable to the pvblie for expenses incurred during her sickness and in her burial — he may receive and enforce in his official capacity a claim for wages assigned to him.</p> <p>One Bridget Rice, while employed by the defendant at weekly wages as a domestic, was taken sick in March and died on the thirteenth of the following April. As she had no property, other than the amount due to her for wages from the defendant, and as he neither paid nor properly cared for her in her sickness, she became a town charge, and the plaintiff, as overseer of the poor, was compelled to expend, legally and necessarily, the sum of fifty-seven dollars and eighteen cents in caring for her during her last sickness and in her burial. After she became chargeable to the town she assigned to the plaintiff the amount due to her from the defendant for the purpose of indemnifying him in his official capacity, so far as she could, for such expense as he might be put to in her behalf.</p> <p>Upon the trial of this action, brought by the plaintiff, as overseer of the poor, the referee found that the defendant was indebted to Bridget, in March, 1885, in the sum of $180.50, but held that the plaintiff, in his official capacity, acquired no title to the cause of action, and had not legal capacity to maintain this action.</p> <p>Held, that he erred in so doing.</p> <p>That it is not against public policy for a poor person suddenly taken sick and chargeable upon the public to indemnify, so far as she may be able, the public authorities against expenses incurred on her account.</p> <p>That it was the duty of the plaintiff to accept from Bridget Rice indemnification for the expenses incurred in her care, in so far as it could be fairly and justly done, and that at common law he had a right to enforce by action a chose in action so received.</p>

<p>Action by an administrator to recover damages for the negligent hilling of his intestate— the fact that no bond was filed on the issuing of the letters cannot be set up as a defense to the action — when an employee of a company owning and controlling a station-yard, is not a co-employeeof an engineer in charge of alocomotive of another company entitled to use the yard.</p> <p>For a year before December S, 1883, Michael Sullivan, the plaintiff's intestate, was employed by the Erie railroad to shovel ashes from a pit thirty feet long, four feet wide and two and a-half feet deep, situated seventy feet south of a turn-table in the yard of that company at Elmira. Before beginning to shovel from the pit the ashes, which were dumped therein from the locomotives, water from a hydrant was turned upon the ashes to cool them and enable the shoveler to handle them readily, which, on the day above stated, developed so much steam that it was difficult, if not impossible, for Sullivan, who was shoveling ashes from the pit, to see an approaching locomotive for any considerable distance, or for the employees on the locomotive to see Sullivan until very near the pit. While Sullivan was leaving the pit on that day he was run over hy one of the defendant’s locomotives, sustaining injuries which caused his death twelve days thereafter. Upon the trial of this action, brought hy the plaintiff, as the administratrix of Sullivan, to recover the damages occasioned by his death, the defendant claimed that the plaintiff was not the legal administratrix of Sullivan, because of the omission of the surrogate to require, and of the omission of the plaintiff to file, a bond pursuant to the provisions of section 2667 of the Code of Civil Procedure.</p> <p>Held, that as the surrogate had jurisdiction to grant the letters upon the decedent’s estate, his omission to require, and the plaintiff’s omission to give, a bond did not render the letters void ab initio.</p> <p>Bloom v. Burdick (1 Hill, 130); Lawrence v. Parsons (27 How., 26) followed.</p> <p>That the plaintiff was authorized to maintain the action, and that the letters could not he questioned in such action,'because of the omission to give a bond until the surrogate’s action was reversed on appeal or the letters were revoked by a proceeding brought for that purpose.</p> <p>Code of Civil Procedure (§ 2591), Carroll v. Carroll (60 N. Y., 121); Sullivan v. Fosdick (10 Hun, 173) followed.</p> <p>The acting superintendent of the Erie railroad testified that, hy the rules, employees on locomotives were required to ring their bells while moving in the yard, and several other witnesses testified that it was the custom to ring /• the hells upon locomotives when approaching the ash-pit. The employees on the locomotive, who were accustomed to daily run this locomotive over the ash-pit to the turn-table, and who, when they saw steam, knew that some person was at work in or about the pit, testified that they saw steam arising from the pit on the day in question. The evidence as to whether or not the bell on the locomotive was rung as it approached the pit was in direct conflict.</p> <p>Held, that it was not error to permit the plaintiff to show that it was the custom of the station-yard for the hells of locomotives to be continuously rung while approaching the ash-pit, and that, on the occasion in question, the locomotive ran towards the pit at a greater than the usual rate of speed.</p> <p>That it was for the jury to say whether the defendant’s employees were guilty of negligence, and whether the intestate was free from contributory negligence.</p> <p>The defendant’s line terminated at Elmira. The Erie road owned and controlled the yard, and when the defendant’s locomotives were in it the servants employed on them were under the exclusive control of the officers of the Erie railroad, who directed how locomotives should he run, at what speed, what precautions should he used and what signals given.</p> <p>Held, that the plaintiff’s intestate and the defendant’s employees on the locomotive were not co-servants.</p> <p>The authorities bearing upon this question, collated and considered by Follett, J.</p>

April 9, 1878, Charles Pardee died:, leaving a last will and testament, of which the following is a copy: “ I, Charles Pardee, of Skanea,teles, county of Onondaga, being of sound mind and memory, do make, publish and declare this to be my last will and testament in the manner following: I do order and direct my executor, hereinafter named, to pay all my just debts and funeral expenses,as soon after my decease as can conveniently be done.

In 1883 and in 1884, the plaintiff occupied a farm owned by one Kelley, which adjoined on the south a farm owned, in 1884, by Aldrich, and occupied, in 1884, by Baldwin. By an agreement between the proprietors, the owner of the Kelley farm was bound to build and maintain the part of the division fence west of a certain chestnut post; and the owner of the Aldrich farm was bound to build and maintain the part of the division fence east of said chestnut post.

<p>When the title to a legacy, to he paid out of the proceeds of sale of land to he sold on the death of a tencmt for life, vests in the legatee on the death of the testator —</p> <p>‘ when a devise of land will he satisfied by a conveyance of a part thereof by the testator to the devisee in consideration of his agreement to receive it in satisfaction of his claim as heir.</p> <p>Willard Cotton left a will "by which, after devising to his son, Hamilton, a tract of land therein described, he gave, bequeathed and devised to his wife, Eliza, all the residue of his real estate, consisting of about fifty acres, known as his homestead farm, and also the undivided equal one-half part of about twenty-four acres of land, jointly owned by the testator and his son-in-law, Elijah French, to have and enjoy the occupancy of the said described premises, and the use and occupancy of all his personal estate, during her natural life. On the decease of his wife his executors were directed to sell and dispose of all of his real estate, and the avails of such sales, together with the avails of his personal estate, after paying and discharging all the provisions made by the will, were given and bequeathed to his “ daughters, Eliza Tuke, Clarissa O. French and Ann Snell, to be divided equally between them, share and share alike,” and in 'case anyone or either of his said, daughters should “die in his life-time, leaving issue or descendants, he directed that her share should not lapse but should be baid to her child or children.” Power to sell the whole or any part of the real estate, before the decease of the testator’s wife, was given to the executors upon the condition that his wife should give her consent in writing. By a codicil to the will the daughter, Clarissa French, was given the right to use and occupy the homestead farm during the term of her natural life, provided she paid certain sums, annually, to her sisters, and complied with other terms and conditions prescribed in the codicil.</p> <p>September 1, 1874, Willard Cotton died,leaving him surviving his widow, Eliza, and a son, his three daughters, Ann, Clarissa and Eliza, and two grandchildren. The widow occupied the homestead until March 30,1880, when she died, after which event Clarissa occupied it until 1885, complying with all the conditions of the codicil until October, 1880, when Eliza Tuke died, leaving a will by which she bequeathed all of her estate to Clarissa.</p> <p>■Held, that, under the testator’s will, the interests of the three sisters in the fifty acres vested at the testator’s death, and that Clarissa, under the will of her sister Eliza, acquired a two-thirds interest therein.</p> <p>On April 9, 1874, the said Willard Cotton and his wife, and the said Elijah French and Clarissa C., his wife, conveyed to Ann Snell three-fourths of an acre out of the aforesaid twenty-four acres by a deed reciting a consideration of $1,000, which stated that the consideration of the deed was “ five hundred dollars, a gift of the parties of the first part, and the other five hundred dollars, the arrangement of the party of the second part, to relinquish all her right, title and interest, prospective as heir-at-law of Willard Cotton and wife, in the twenty-four acres, of which said three-fourths acre is a part, so that the twenty-four acres shall be free and clear of her claim, as heir, as aforesaid.” On the same day Ann Snell executed an instrument, under seal, by which she acknowledged the receipt of the aforesaid conveyance, and that the same was in release and satisfaction of all her present and prospective interest in said twenty-four acres, as heir-at-law of said Willard Cotton.</p> <p>Held, that by executing the said deed and release the plaintiff, Ann Snell, satisfied and discharged the interest in the twenty-four acres devised to her by her father.</p> <p>Burnham v. Comfort (37 Hun, 216) distinguished.</p>

This action was brought to recover damages for personal injuries sustained by the plaintiff, a miner in the employment of the defendants, in an accident caused by alleged defective and unsafe machinery furnished by the defendants.

<p>Fines imposed for violations of laws “ relating to or affecting children” — when to he paid to the society prosecuting the accused — 1875, chap. 130 —1876, chap. 122, sec. 5 — 1881, chap. 184.</p> <p>'Tlie plaintiff, a corporation organized under the provisions of chapter 130 of 1875, having made complaint against certain persons for violating the laws relating to or affecting children, the accused persons were tried before the city judge of Yonkers and fined. The fines having been paid by him into* the city treasury, the plaintiff brought this action against the city to recover the amount so paid.</p> <p>Meld, it was entitled to recover the amount of the fines.</p> <p>'That the provisions of section 5 of chapter 122 of 1876, providing that “ all fines, penalties and forfeitures imposed and collected in any county in this State, under the provisions of this and of every act passed, and which may be passed, relating to or affecting children, in every case where the prosecution shall be instituted or conducted by a.society incorporated pursuant to the provisions of chapter 130 of 1875, *' * shall, except where otherwise provided, inure to such society in aid of .the purposes for which it was incorporated,” did not conflict with the section of the defendant’s charter which made it the duty of the city judge of Yonkers to pay all fines imposed and collected by him into the city treasury; that the' latter act simply forbids the city judge to .pay the fines to the plaintiff'society, but did not authorize the defendant, after receiving the fines ffomithe-city jjjdge, to withhold the same from the plaintiff.</p>

24, in the city of Brooklyn. The children were refused admission to the primary school of the district in which they resided, because such school had no accommodations for other scholars than those in attendance.

<p>Appeal from so much of an order, and from so much of the interlocutory judgment entered thereon in Kings county, as sustains the demurrer of the plaintiff to the counter-claim set up in the answer of the defendants.</p>

In this action brought to foreclose a lien upon chattels as provided by section 1737 of the Code of Civil Procedure, a warrant of seizure was issued, directed to the sheriff of Niagara county, under which he seized the chattels. The case being noticed for trial, the defendants moved on the call of the calendar, without notice, to vacate the warrant upon the papers on which same was granted.

The action was brought to recover the possession of a bond and mortgage claimed by the plaintiff to belong to her, but which being found among the assets of the deceased were taken possession of by the defendants, his executors.

The action was brought upon a written promise or undertaking, signed by the defendant, by which he agreed to pay to the plaintiff $500. The defense was that the undertaking was without consideration and void. The defendant was.the executor of the will of Lewis T. Wright, who died in or about the year 1875, and as such executor he propounded said will for probate before the surrogate of Westchester county.

<p>Contract to assist another person to invent improvements — one so employed cannot take out letters in his own name for inventions so made.</p> <p>This action was brought to compel the defendant, George Wren, to assign certain letters patent for an invention in hand-trucks issued to him, as the assignee of W. C. Wren, his brother, who, claiming to bo the inventor of the improvement, had applied for letters patent.</p> <p>It appeared upon the trial of the action that the plaintiff while engaged in the business of manufacturing iron wheelbarrows and trucks, and in endeavoring to improve the same, had employed the defendant, W. O. Wren, at a weekly salary, to apply himself personally to the development of this business, and that the said Wren, while so assisting him, had made certain inventions, and had made drawings and models thereof for the purpose of procuring letters patent to be issued to the plaintiff. While so remaining in the employment of the plaintiff, Wren secretly made application for letters patent to be issued to himself, and he assigned the same to his brother George, who obtained the letters patent knowing of the rights of the plaintiff thereto and of the facts and circumstances upon which they were based.</p> <p>Held, that the court had jurisdiction over the subject-matter and parties, and that a judgment granting to the plaintiff the relief sought should be affirmed.</p>

Robinson. On or about the 17th day of February, 1881, Joseph Robinson died, having previously made his last will, dated the 16th day of March, 1883, which was admitted to probate in Kings county on the 31st day of March, 1881. By said will the defendant, Charles E. H. Robinson, was appointed executor, and duly qualified as such on the day of probate. Harriet Robinson, the widow of testator, died on. the 5th day of May, 1881.

<p>Regulations of the State militia — á non-commissioned officer may be reduced to the ranks by order of the commanding officer, without being afforded any opportunity to be heard.</p> <p>Section 163 of the regulations governing the military forces of this State provides that “non-commissioned officers may be returned or reduced to the ranks by the commanding officer of the organization (officerj issuing warrants), on their own request in writing, approved by their immediate commander, or for cause on the application of their immediate commander, or by the sentence of a .court martial.”</p> <p>Held, that upon the request of a captain of a company, requesting the colonel of the regiment to reduce to the ranks a non-commissioned officer upon the ground, :among others, of disobedience of orders, the colonel may issue an order returning the non-commissioned officer to the ranks without affording him any opportunity for a hearing upon the charge made against him.</p>

<p>Agreement between husband and wife to discontinue an action for divorce and resume marital relations — right of the husband to recover property transferred in consideration thereof to the wife, on her breach of the agreement.</p> <p>The defendant having left the residence of her husband, the plaintiff, and commenced an action against him for a divorce on the ground of his adultery, an agreement was entered into between them by the terms of which the action was to be settled and discontinued, and the defendant was to return to her husband and live with him and a son of his and perform her duties as his lawful wife and the husband agreed to, and thereafter did, execute and deliver to a third person a bond and mortgage for $8,000 for the use of the defendant, which was to be, and was, assigned to her. The defendant returned to the residence of the husband, but refused to permit the return of the son thereto, and left the house when he was brought to it. The husband thereupon brought this action to procure tbe bond and mortgage to be canceled and surrendered.</p> <p>Held, that he was entitled to the relief sought.</p> <p>BucMin v. Bucldin (1 Abb. Ot. App. Dec., 343) explained and distinguished.</p>

<p>W'ill — when a limitation over to surviving children does not include grandchildren.</p> <p>In July, 1884, Henry Davis died leaving a will, executed on September 6, 1875, by which he gave and bequeathed all his “ real estate in fee simple to my (his) three sons, Henry Davis, Charles Davis and James Albert Davis, and the survivor and survivors of them in case either dies before me without issue, and in case either dies before me leaving issue the share of such deceased child shall go to such issue.” The son Henry died in December, 1880, leaving three children, who are still living. James Albert died, without issue, in February, 1882.</p> <p>Held, that upon the death of Henry his share passed to his children, and upon the death of James Albert his share passed to his brother Charles. (Barnard, P. J., dissenting.)</p>

<p>Appeal from a judgment in favor of the plaintiffs entered upon the report of a referee.</p>

Upon May 13, 1884, the Penn Bank, a foreign corporation, delivered to the American Exchange National Blank, of New York, a large amount of negotiable securities, among others notes of McCalmont Oil Company for $2,500, and notes of American Tube and Iron Company for $6,200, as collateral security for a loan then made to the Penn Bank by the American Exchange National Bank, which loan was less than the face of the securities.

By the Dongan charter of 1686, the city of New York was granted the title of all the land situate between high and low-water mark surrounding the island of Manhattan. By the Montgomery charter of 1730 there was granted to the city of New York from the north side of Corleara Hook to Whitehall all the land under water for 400 feet from low-water mark into the East river.

The appellant is a foreign corporation and the respondent is a domestic corporation. On divers dates between the 25th of February and the 10th of May, 1884,.the plaintiff drew ten certain drafts or bills of exchange, each dated as of the day when drawn, whereby it directed the respondent to pay to the order of W. C. Wadsworth & Co., certain sums of money.

Appeal by James O. Van Dyke, as administrator under tbe will annexed, of Michael M. Van Dyke, deceased, from an order of the surrogate of the county of New York, directing him to render an account of the proceedings of Michael M. Van Dyke, as administrator of Isaac Van Dyke, deceased.

On the 2d day of July, 1883, the Bankers and Merchants’ Telegraph Company-of New York, the Bankers and Merchants’ Telegraph Company of New Jersey, the Bankers and Merchants’ Telegraph' Company of Pennsylvania, and the Bankers and Merchants’ Telegraph Company .of Baltimore City, made a mortgage to the Farmers’ Loan and Trust Company, as trustee, whereby they mortgaged all their property ¡situate in several States to secure an issue of $300,000 of bonds by the said Bankers and…

The relator is an insurance company and its shares of stock at par amounted to $210,000. The highest rate at which such shares sold in the open market during 1884 was ninety dollars per share but the respondent assessed the same as of the actual value of one hundred and forty-six dollars }ier share, for the purpose of taxation.

<p>Corporations — agents of undisclosed principals — persons dealing with corporations are chargeable with notice of the purposes for which they a/re created — when a corporation is not estopped from disputing the validity of contracts made by its officers.</p> <p>In this action, brought by the plaintiffs, commission merchants and cotton brokers-to recover a balance of money, claimed to have been expended by them in the purchase and sale of cotton futures for the defendant, and for the plaintiffs’ commissions, it was shown that the defendant was incorporated under the name of Citizens’ Savings Bank of Jefferson, Texas, by an act of the legislature of the State of Texas. It was authorized to carry on the business usually carried on by savings banks in this State, and also to borrow money, buy and sell exchange, bullion, bank notes, government stocks or other securities. The purchases and sales were made by the plaintiffs under the direction of the cashier of the defendant, who informed the plaintiffs that neither himself nor the bank dealt in futures, and that in case he ordered purchases it would only be for good responsible customers who had put up the necessary margin.</p> <p>Aeld, that as the defendant did not disclose its principals at the time of giving the orders, it was not exonerated from responsibility merely because it stated that it was acting as an agent.</p> <p>That the plaintiffs were chargeable with notice of the purposes for which the corporation was formed, and that the question as to whether or not they had knowledge of the limitations imposed upon its powers was an immaterial one.</p> <p>That, as the corporation had no power to speculate in the manner in which it attempted to do, and as the plaintiffs were bound to know this fact, they could not recover the amount claimed.</p> <p>That, as the entire transaction resulted in a loss, and no properly was received by the defendant, the contract was not an executed one within the meaning of that term, as used in the decisions holding that in such cases a defendant corporation cannot claim that the contract was ultra vires.</p> <p>Whitney Arms Company^. Barlow (63 N. Y.-, 62); The Bider Life Baft Compamj v. Roach (97 id., 378); Parish v. Wheeler (22 id., 494) distinguished.</p>

The complaint alleges that John C. Henderson died leaving a last will and testament which was thereafter admitted to probate, and being seized and possessed of a large amount of real estate.

Denton E. Connor, on tbe 16th of January, 1886, made a will, and died on the twenty-third of January following. On the 23d of July, 1886, tbe said will was admitted to probate by tbe surrogate of tbe county of New York.

In 1882 one George Robinson, an insolvent merchant of New York city, executed to Henry J. Kopper, as assignee, a general assignment- of all his property for the benefit of creditors. The assignee accepted the same, the assignment was recorded and the assignee executed and filed a bond and took possession of the assigned property.

<p>Attachment — the interest of an equitable mortgagor cannot be enforced by replevin against the sheriff— the ml/ue of the chattel, at the time of the trial, without reference to the equitable mortgage, must be fixed by the report or decision — Code of Oivil Procedure, sec. 1726.</p> <p>In March, 1886, the plaintiff agreed to sell to one Tremelling two printing presses and a quantity of printers’ supplies for the price of $1,100, $500 to be paid in cash upon the completion of the delivery and the balance by giving a chattel mortgage on the property. While the plaintiff was making the delivery, which was not completed for some fifteen or sixteen days, Tremelling paid $250 on account of the $500 cash. After the delivery had been completed the plaintiff endeavored, bat without success, to find Tremelling, and on the following day learned that he had absconded, and that the defendant, the sheriff, had taken possession of the goods by virtue of an attachment issued against him.</p> <p>Upon the trial of this action, brought by the plaintiff to replevy the goods, the court directed a verdict in favor of the defendant.</p> <p>Held, that it did not err in so doing as the goods were sold on credit to the extent of the $500, which was not to be paid until the delivery was completed.</p> <p>That, although the vendor might have an equitable lien to the extent of the mortgage which was to have been given, yet the mortgagor was the owner and had an interest in the property upon which the sheriff could levy, and which justified him in taking possession of the property.</p> <p>Upon the trial the only evidence given as to the value of the property was the affidavit of the plaintiff, as to its value, made in the proceedings in which the property was replevied.</p> <p>Held, that the court did not err in directing the jury to assess the value of the property at the value stated in the affidavit. (Daniels, J., dissenting.)</p> <p>That its right so to do was not affected by the fact that the plaintiff had an equitable mortgage on the property, and that the sheriff could only sell the equity in the property owned by Tremelling. (Daniels, J,, dissenting.)</p>

<p>Appeal from parts of a decree of tlie surrogate, entered upon the final accounting of tbe executors, refusing to allow commissions claimed by them.</p>

<p>Statute of frmds — surrender of stolen bonds — sufficiency of, as the consideration for an agreement to pay the debt of another — original contract between newly contracting parties.</p> <p>One Mur, having pledged certain bonds with, the plaintiffs to secure his indebtedness to them, afterwards entered into the employment of the defendant’s firm and induced the defendant to write the following letter to the plaintiffs:</p> <p>“Messrs. Barney, Raymond & Co., 84 Broadway:</p> <p>“ Dear Sirs. — Mr. J. M Mur, being under engagement to Messrs. Russell & Co, as their head bookkeeper, will have $4,000 (Mexican) per annum as salary, and I will undertake that the agreement made by him to pay a certain amount to you each year shall be carried out until the indebtedness to your firm ¡s liquidated.</p> <p>“Yours, truly,</p> <p>“JOHN M. FORBES, Jr.”</p> <p>This letter, with one signed by Mur, stating that he had accepted a position in China in the house oí Messrs. Bussell & Co., that he would pay $8,000 a year upon his indebtedness, and asking that his bonds be released, was sent to the plaintiffs, who thereupon surrendered the bonds. Mur had declined to go to China until he could get these bonds, which in fact did not belong to him but had been improperly obtained possession of by him.</p> <p>Held, that the agreement of the defendant was not void within the statute of frauds, as the consideration therefor, the surrender of the bonds, clearly and distinctly appeared.</p> <p>That the promise was an original one arising out of a new and original consideration running between the newly contracting parties —the securing, in this case, of the services of Mur for the China house of which the defendant was a member.</p> <p>That the fact that the bonds were not owned by Mur did not show a failure of consideration, as the possession of the bonds gave the plaintiffs a quasi title to them and left the question of their right to retain them one which might be contested with possible success.</p>

<p>Appeal from an order confirming the report of a referee as to a claim of Leo C. Dessar against the above named defendant.</p>

<p>Creditors’ suit — an order dweating a purchaser at a judicial sale to pay the damage resulting from Ms failu/re to complete the same, is a sufficient basis therefor.</p> <p>An order directing the purchaser at a judicial sale to pay an amount duly ascertained and determined by the court to be the damage resulting from the refusal of such purchaser to complete his purchase, is to be regarded as a judgment of the court for all the purposes of supplementary proceedings and a creditor’s action brought to set aside conveyances made by such purchaser in fraud of the rights of his creditors.</p>

<p>Accounting by an executor of an executor — power of the surrogate to compel it.</p> <p>A surrogate has power under section 2606 of the Code of Civil Procedure, as amended by chapter 399 of 1884, to compel an executor of another executor to account for property received by the latter.</p> <p>The purpose of the amendment is to develope all that the executor of the executor knows or can learn about the trust estate and in reference to it.</p> <p>Its design is also to vest the power in the surrogate to enforce the delivery of the trust estate remaining.</p>

<p>Appeal from a judgment entered at Special Term dismissing the complaint.</p>

<p>The giving of (he notes ofathvrd person in satisfaction of a judgment, (hough for less than the amount due (hereon, operates as an accord and satisfaction — effect of the receipt of principal on (he right to collect interest.</p> <p>The plaintiffs having recovered judgment against the defendants for $578.72, and nearly ten years interest having accrued thereon, accepted from the defend- . ants $260 in cash and three promissory notes of a firm, which was not the judgment debtor, for $100 each, which were paid at maturity, in full satisfac ■ tion of the judgment.</p> <p>In an action, brought to enforce the judgment on the ground that the acceptance of a sum less than the amount due thereon could not operate as a satisfaclionthereof:</p> <p>Reid, that the giving of the notes of a third person operated as an accord and satisfaction and discharge of the judgment debt.</p> <p>That, as the cash payment and notes exceeded in amount the judgment, aside from the costs and interest, the receipt of the principal sum due was a har to any claim for interest thereon.</p>

<p>A statute making the possession of an article conclusive evidence of an intent to sell the same, in an action for a penalty, is constitutional — 1885, chap. 183, sec. 8.</p> <p>Section 8 of chapter 183 of 1885, providing that “ if any person shall coat, powder or color with annatto, or any coloring matter whatever, butterine or oleomargarine, * * * or shall have the same in his possession, or shall sell or offer for sale or have in his possession, any of the said products which shall he colored or coated in semblance of or to resemble butter or cheese, it shall be conclusive evidence of an intent to sell the same for butter or cheese,” is constitutional.</p>

<p>Arrest — application for discha/rge — when it should be granted under section 572 of the Code of Ovott Procedure, as amended by section 6 of chapter 672 of 1886 — when unreasonable delay must be shown.</p> <p>On October 11, 1883, the defendants in this action were arrested under an order of arrest and held to bail in the sum of $9,000, and thereafter discharged upon giving an undertaking, with sureties, in the form prescribed by subdivision 3 of section 575 of the Code of Civil Procedure. The issues in the action having been tried and a verdict recovered against the defendants a judgment was, on December 24, 1884, entered against them. In February, 1887, no execution having been issued upon the judgment, an application was made for the release of the defendants and the discharge of their sureties</p> <p>Held, that the court erred in denying the application, as the defendants were entitled to their discharge under the provision of section 572 of the Code of Civil Procedure, as enlarged and amended by section 6 of chapter 672 of the Laws of 1886.</p> <p>Wliere no judgment has been entered the motion for a discharge must he made under the first part of section 572 of the Code of Civil Procedure, as amended by chapter 672 of 1886, and will not be successful unless the fact that the plaintiff has unreasonably delayed the trial of the action be affirmatively established by the applicant.</p>

<p>Warehousemen — liabilittfvf, for issuing receipts in violation of the provisions of chapter 326 of 1858, as amended by chapter 440 of 1866 — the liability does not depend on proof that the violation was willful — what proof will justify a recovery of damages by the person receiving the receipts.</p> <p>On March twenty-eighth the defendant, a warehouseman, signed two receipts, stating that he had received from Max Von Angern, to be held “ on storage and to be delivered to his order on return of this receipt and payment of storage and charges, fifteen hundred barrels Portland cement,” which receipts were deposited with a bank as security for a note made by Von Angern. The plaintiffs guaranteed the payment of the note, upon the transfer of the note and of the right, title and interest of the bank in the collateral security, to them, if requested at the time of such payment. The note not being paid by Von Angern, the plaintiffs, at the request of the bank, paid it and received the warehouse receipts.</p> <p>Upon the trial of this action evidence was given by witnesses tending to show that the article they found in store upon the defendant’s premises, and which they there examined, was not Portland cement.</p> <p>Held, that the court erred in dismissing the complaint upon the ground that the evidence was insufficient to allow the plaintiff to maintain the action.</p> <p>That a cause of action for a violation of the provisions of chapter 326 of 1858, as amended by chapter 440 of 1866 — prohibiting any warehouseman from issuing any receipt for or upon any goods, wares or merchandise, to any person purporting to be tbe owner thereof, unless such goods, wares or merchandise shall have been actually received, and shall then be in the store or on the premises of the said warehouseman — was given to the plaintiffs by the concluding portion of section 7 of the said act, providing that “ all and every person or persons aggrieved by the violation of any of the provisions of said act, as hereinbefore mentioned, may have and maintain an action at law against the person or persons violating any of tlie provisions of said, act, as hereby amended, to recover all damages, immediate or consequential, which he or they may have sustained by reason of any such violation, as aforesaid, before any court of competent jurisdiction, whether such person shall have been convicted, as hereinbefore mentioned, or not.”</p> <p>That it was not necessary to prove that the defendant had willfully violated the provisions of the act, but only that he had in fact violated them.</p> <p>That the plaintiffs were' not required to take and sell the property before bringing the action, but were entitled to recover the damages sustained by them on proving that the property was of no value over and above the charges of the defendant for keeping it in store, and that the person in whose name the ■ receipts were issued was insolvent.</p>

<p>Appeal from an order made at Special Term, directing the payment of the costs of a litigation between these parties by the plaintiff personally.</p>

<p>Appeal from an interlocutory judgment sustaining a demurrer interposed to tlie plaintiffs’ complaint. ' "</p>

<p>Costs — not allowed, as a matter of course, to cm infant defendant in w7ios_e favor a verdict is directed on proof of infancy — costs should not be allowed to an infant escaping from a partnersTiip liability by pleading infancy.</p> <p>Upon the trial of this action, brought by the plaintifl: to recover for goods sold to the defendants, composing the firm of A. Hoexter & Co., a verdict was directed in favor of the defendant Leo, upon the ground alleged and proved that he was an infant, and a judgment for costs and an extra allowance was also entered in his favor.</p> <p>Held, that, in so far as it awarded costs and an extra allowance, it should be reversed.</p> <p>That, under section 3239 of the Code of Civil Procedure, he was not entitled to costs, as a matter of course, but that their allowance depended upon a special application to the court by which costs could be withheld or allowed according to its sound discretion.</p> <p>That where a person, who is engaged in business as a copartner with another, and is ostensibly competent to carry it on, incurs in form the usual liability appertaining to it, and escapes that liability by pleading his infancy, it is not a just exercise of discretion to allow him to recovei costs after having enjoyed the advantages of the purchase of property by the firm.</p>

<p>Penalty for a violation of the act prohibiting the sale of oleomargan'ine — the right to bring an action to recover it does not depend upon a conviction having been Jii'st had in a criminal action — 1885, chap. 183, sea. 7, as amended by chapter 458 of 1885.</p> <p>Upon the trial of this action, brought to recover a penalty of $500 for a violation of section 7 of chapter 183 of 1885, as amended by chapter 458 of the same year (forbidding the sale of oleomargarine), the complaint was dismissed upon the admission of the plaintiff that the defendant had not been tried or convicted in a criminal action for the violation of the statute mentioned in the complaint, the court holding that it was required to dismiss the complaint by the language used in sections 7 and 19 of the said act.</p> <p>Held, that it erred in so doing.</p> <p>That the law had provided for the prosecution and punishment of the offender by indictment,' and, in addition to that liability, it had declared tha( he should forfeit and pay a fixed penalty of .$500; these punishments being entirely separate and distinct.</p> <p>That the two proceedings, if not concurrent, are entirely independent, and one may be prosecuted without resorting to the other.</p>

Appeal from a judgment of the Court of General Sessions of the county of New York, convicting the- defendant of the crime of larceny in the second degree,

<p>Specific performance of a contract to convey land — presumption of a conveyance from the lapse of time — what title by adverse possession the court will compel the purchaser to accept — one tena/nt in common when presumed to hold adversely to his co-tenant.</p> <p>In an action, brought by the vendee to compel the specific performance of a contract to convey land, it appeared that the vendor derived title from one Bayard under a deed dated in 1797; that Bayard had conveyed the same premises, in 1771, to other parties than those through whom the vendor claimed title; that there was no evidence that the title acquired by the grantees under the conveyance of 1771 ever passed to Bayard or any other of the vendor’s predecessors in title; that the vendor’s predecessors in title had been in actual possession since 1797; that neither of the grantees named in the deed of 1771 had ever been in possession of or made any claim to the premises, and that no conveyance by them had ever been found.</p> <p>Held, that the foregoing facts raised a conclusive presumption that the grantees ■named in the deed of 1771 had reconveyed to Bayard before the latter’s conveyance of 1797, or that the conveyance of 1771 never had an operative delivery to the grantees therein named.</p> <p>Where the title by adverse possession is so clear that the court should direct a jury to find such title, the court will compel a specific performance of a contract where the vendor can give such a title.</p> <p>One tenant in common may acquire the title of another tenant in common by adverse possession. An ouster will be presumed after an exclusive possession and receipt of the entire profits, with a claim of right to the whole thereof, for twenty-one years.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court.</p>

<p>Motion — when it cannot he renewed without leome of the court.</p> <p>A motion made by the defendant in this action to have the complaint made more definite and certain, and in default of that relief being granted, for a bill of particulars, having been denied without any leave being given to renew it, this motion was made by him for a bill of particulars in reference to the second cause of action mentioned in the complaint herein.</p> <p>Held, that the adjudication upon the prior motion was a bar to the making of the present motion.</p>

<p>Appeal from an order directing the plaintiff to cause the action to be revived, or in default thereof that the administratrix of the deceased defendant be substituted and simultaneously the action be dismissed, with costs and allowance.</p>

One James Linden, residing in the city of New York, died on the 10th day -.of June, 1885, leaving no issue and a last will and testament made, executed and published on the 9th day of November, 1879, which will was duly admitted to probate by the surrogate of the city and county of New York, as a will of real and personal estate, on the 25th of August, 1885.

<p>. Appeal by the plaintiff from a judgment entered upon an order sustaining a demurrer intei’posed to the complaint.</p>

The summons and complaint was served upon defendants on January 20, 1887. On February 9, 1887, the defendants’ time to answer or demur was extended twenty days from said date. On March first the defendants interposed a demurrer. Within twenty days thereafter, to wit, on the seventeenth day of March, the defendants withdrew the demurrer and served an answer which was returned by the plaintiff’s attorney.

Appeal by the defendant from a judgment entered upon the verdict of a jury at circuit, and from an order denying a motion for a new trial made upon the minutes.

The complaint, after setting forth that the plaintiff is a domestic corporation created under the laws of this State, and that the defendant is a town of this State situated in the county of Westchester, alleges that by an act of the legislature entitled “ An act to authorize the towns of Yonkers and East Chester in the county of Westchester to make, extend and improve the several highways in said towns, passed April 22, 1869, as amended by a certain other act passed April…

<p>Submission of a controversy upon an agreed statement of facts under sections 1279 and 1280 of the Code of Civil Proceedure.</p>

<p>Legacies — when held to vest at the death of the testatrix under a direction to pay at a futwre time.</p> <p>A testatrix gave and bequeathed to her executors all the rest of her estate, both real and personal, to hold in trust to pay the entire net income thereof, semi-annually, to her brother during his natural life, “and on the death of my said brother John C. Minturn to pay to my cousin, Penelope Ooit, widow, the sum of $5,000 ; to pay to my cousin, Niobe M. Abbott, the sum of $5,000.” Then followed other bequests to other persons and corporations.</p> <p>Held, that the legacies to Penelope Ooit and Mobe M. Abbott vested in them at the time of the death of the testatrix, and that as they died during the life of John C. Minturn, their representatives were entitled to receive the legacies.</p>

Louis and San Francisco Railway-Company, and other persons, to show cause why a peremptory writ of mandamus should not issue against said corporation and persons, directing them to allow the relator to inspect the transfer books, and list of stockholders of said company.

been so taken and filed in the clerk’s office of Franklin county, the cause be brought to trial upon the pleading and evidence so taken before the court sitting in said county. The action is brought to foreclose a mortgage upon which plaintiff claims $16,104.85, and interest on different amounts from different dates.

<p>Appeal from a decree of the surrogate of St. Lawrence county, refusing to admit to probate an instrument purporting to be the last will of James Mackay, deceased.</p>

' Motion for a new trial on exceptions ordered to be beard in the first instance at the General Term, after the court had dismissed the proceedings. Hpon the trial before the Hlster County Circuit of the issues framed by a writ of alternative mandamus and the return, the court, at the close of the testimony, dismissed the proceedings and directed that the exceptions be heard in the first instance at the General Term. The relator now moves for a new trial.

This is an action in the nature of quo warranto and is brought by the authority of the attorney-general to oust the defendant and to restore the relator to the office of trustee of the village of North-ville in the county of Fulton. At the annual'election in 1885, one James A. Cole was duly elected trustee of the village of Northville and duly qualified and held such office until J uly 24,1885, when he resigned and his resignation was accepted.

The plaintiff, by his complaint, for lumber sold to the defendant, claimed a balance of eighteen dollars and seven cents due May 1, 1876, also an additional balance of $162 for other lumber sold July 1, 1878. The action was commenced September 30, 1884. The answer was the statute of limitations. The plaintiff proved' the sales and balances as of the dates claimed.

On the 1st of September, 1880, an appeal was pending in the County Court in this action. Judgment had been obtained by the plaintiffs in the Justice’s Court for forty dollars and six cents damages and five dollars costs. The defendant had appealed to the County Court and had demanded a new trial.

Plaintiff obtained judgment against the defendant before a justice of the peace of Fulton County January 29, 1876, for $200. A transcript was filed, and the judgment docketed in the Fulton county clerk’s office January 29, 1876. A transcript of the Fulton county j udgment was filed, and the j udgment was docketed in the Saratoga county clei’k’s office February 1,1876.

The action was brought to recover certain penalties under the game laws. The defendant is charged with having had on the 20 th of April, 1886, in his possession in Saratoga county certain speckled trout, after they had been caught, contrary to section 19 of chapter 534 of the Laws of 1879 as amended by section 1 of chapter 124 of the Laws of 1886.

The plaintiff, among other things, sought to recover of defendant $485, which the complaint alleged belonged to his intestate, and which, coming into the possession of the defendant, she converted to her own use. The referee found that no demand had been made of the defendant before action brought and reported in favor of the defendant. The only question urged upon the appeal is stated in the opinion.

The plaintiff brings this action as assignee of an accident insurance policy issued by the defendant to Frederick J. Oaks. The complaint alleged the incorporation of the defendant, the issuing of the policy alleging its conditions; the sustaining of bodily injury by the assured, of which he died; the assignment of the policy to the plaintiff; the making of proof of death and demand of payment.

<p>I/ihel — pleadings of justification and in mitigation — rules as to.</p> <p>This action was brought to recover damages for a libel uttered by the defendant, charging the plaintiff with preparing water for analysis as the water of Hathorn Spring, by adding to the spring water fresh water and valuable salts. The words claimed to be libelous were alleged to be as follows: “ In stating these the facts we do not intend to implicate the learned chemist who did not procure water himself (as he should) at the springs; who did not know how much fresh water was added to diminish the proportionate amount of the offending and gross salts to the water, or how much valuable salts were added before closing the bottles sent him.”.</p> <p>Upon an appeal from an order sustaining a demurrer to so much of the answer as alleged that “ it is also true that the chemist referred to in said article did not procure the water himself from the waters of the spring as he should; that he did not know how much (if any) fresh water was added to diminish the proportionate amount of offending iron and gross salts to the water, or how much, if any, valuable salts were added before closing the bottles sent him.”</p> <p>Held, that it should be affirmed, as the answer was defective as a Justification, in that it was not as broad as the charge made, nor did it state facts tending to. establish the truth of the alleged libel; and defective as a plea in mitigation, of damages in that it did not state that it was pleaded as a partial defense, and in containing no statement of the facts which were to be proved to support the plea.</p>

Submission upon a ease containing an agreed state of facts under the provisions of sections 1279, 1280, 1281 of the Code of Civil Procedure. The action which this submission is intended to determine was commenced between these parties on the 31st day of December, 1884.