Volume 52 — Barbour's New York Supreme Court Reports

1YFTT8 was an. action to compel the determination of the . defendant’s claim to land in Brooklyn. On the first trial, before J. F. Barnard, J. the defendant recovered a judgment declaring that he was the owner of the land claimed by him, and in possession of the plaintiff. The plaintiff appealed.

THIS action was commenced before M. L. Taylor, a justice of the peace of the town of Brighton, in the county of Monroe, to recover the sum of seventy-five dollars, the alleged value of the plaintiff’s farm dog, which, as was averred in the complaint, the defendant by himself or his agent, willfully and without cause, shot and killed, on or about the 19th day of November, 1867, in the town of Chili, in said county.

The action was brought by the plaintiff', as a judgment creditor of the defendant Gilman, to set aside a conveyance of real estate made by the latter to the defendant Thurston.

THIS is an appeal by the defendant from a judgment rendered in the county court of Columbia county, in favor of the plaintiff, for $191.53 damages and costs.

THIS action was brought by the plaintiff, as assignee of Edward B. Crowell, to recover of the defendants the sum of $5440, being the aggregate amount of several dividends declared by it during the years 1861, 1862, 1863 and 1864, and remaining unpaid, on eighty-five shares of its capital stock owned by said Crowell. The complaint alleges that the plaintiff is and for several years has been a resident of the state of Hew York, to wit, of the city and county of Hew York.

<p>OH the 27th June, 1864, at Cincinnati, in the state of Ohio, James B. Grant, the plaintiffs’ agent, delivered to the Union Transportation and Insurance Company, a corporation of the state of Pennsylvania, engaged in the business of transporting freight as carriers for hire, forty barrels, containing sixteen hundred gallons of lard oil, the property of the plaintiffs, for transportation to Hew York, and received and accepted from said company a bill of lading therefor, which he forwarded, with an invoice of said merchandise, to the plaintiffs, at Hew York, who received the same in due course. The bill of lading declared that the merchandise was to be transported by the said Union Transportation and Insurance Company, until the same reached Hew York, upon the terms and conditions therein set forth, one of such conditions being that the company should not be liable “ for damage or loss by fire or other casualty ” while the merchandise was “ in depots or places of transhipment.” Pursuant to the agreement contained in the bill of lading, the said Union Transportation and Insurance Company transported the said merchandise in its own cars, in charge of its own employees, over the various railroads in its customary route between Cincinnati and Hew York, including the railroad of the defendants from Philadelphia to South Amboy, and at this latter point delivered the same On Saturday, the 9th July, 1864, for transportation to Hew York city, upon the steamboat Transport, owned by the defendants, and employed by them, as part of their regular line, in the carriage of freight between Philadelphia and Hew York. The defendants received the plaintiffs’ merchandize upon their railroad and steamboat, for transportation to Hew York, according to their usual course of business with the said Union Transportation and Insur-’ anee Company, and upon the understanding and agreement with said company, and other carriers, who aided in the transportation of said merchandise, that the defendants should collect the entire freight upon said merchandise from Cincinnati to Hew York, and pay the same over to the said Union Transportation and Insurance Company, to be thereafter distributed and apportioned as should be just and equitable. The defendants duly and safely transported the merchandise to, and delivered the same at, their usual and only landing place and regular freight depot, erected on pier Ho. 1, Horth river, in the city of Hew YoTk, where all merchandise carried by them,. or by the said Union Transportation and Insurance Company, to or from said city, was accustomed to be received, landed and deposited, ready for transportation or delivery; and the same was, after working hours on said 9th July, 1864, deposited in said depot, upon said pier, ready for delivery to said plaintiffs, upon the payment of the freight specified in the bill of lading. During the night between Sunday, July 10, and Monday, July 11, before the plaintiffs had any notice of the arrival of the merchandise, or opportunity to remove it, the pier and depot with its contents, including such merchandise, was wholly destroyed by fire, and such destruction was not occasioned by the design or negligence of either 'party. This action was brought to recover of the defendants the value of the oil. Upon these facts, the court (Clerks, J.) before whom the case was tried at circuit, held, as matter of law, that the defendants were entitled to judgment. Judgment was accordingly entered for the defendants for their costs and disbursements, amounting to $218.73. The plaintiffs excepted to the legal conclusion of the court appealed from the judgment to the general term.</p> <p>I. This court has twice, (at least,) decided that an express company’s receipt, similar in form and substance to the receipt or bill of lading in this case, does not constitute an agreement between the company and the shipper. It is only a receipt, with notice of .the terms on which the company is willing to undertake the transportation of the goods. (De Barre v. Livingston, 48 Barb. 511. Belger v. Dinsmore, 34 How. 421.) A long series of decisions in this state and elsewhere has settled these two propositions: 1. The common law liability of a common carrier can only be abridged by express contract. 2. Notice of a restricted liability, however distinct, though brought home to the actual knowledge of the shipper, is not sufficient—is not evidence of the shipper’s assent—nor can a'special ageement be inferred therefrom. (Hollister v. Nowlen, 19 Wend. 234. Nevins v. Bay State Company, 4 Bosw. 225. Rawson v. Penn. Railroad Co., 2 Abb. N. S. 220. Dorr v. N. J. Co., 11 N. Y. Rep. 485. Bissell v. N. Y. C. Railroad Co., 25 id. 442. F. and M. Bank v. Transportation Company, 23 Vt. Rep. 186, 205. York Co. v. Central Railroad Company, 3 Wall U. S. 113. 10 N. H. Rep. 487. 10 Metc. 479. Prentice v. Decker, 49 Barb. 21. Limburger v. Westcott, Id. 283, &c.) “Without attempting to draw nice distinctions to show when special bills of lading or receipts may be so treated by the owner of the goods as to amount in legal effect to special contracts, it may be sufficient to say that, according to the recent decisions in this state, the law will not imply the owner’s assent to the qualifications which they may contain; nothing less than express agreement upon his part will suffice to relieve the carrier from his otherwise legal risks.” (Woodruff, J. in Mercantile Ins. Co. v. Chase, 1 E. D. Smith, 138.) Whenever a carrier has been released from liability by the terms of a receipt or bill of lading, the evidence has shown “ a special contract limiting his liability at time of acceptance,” or “ a notice brought home to the knowledge of the owner of the goods at the time, or before the delivery of the goods, and assented to by him.” (Redfield on Railways, 2d ed. 270. Cases supra. Moriarty v. Harnden’s Express, 1 Daly, 227. Moore v. Evans, 14 Barb. 524.)</p> <p>II. There was no such agreement between the Union Express Company and the plaintiffs in this case, nor was there any assent on the part of the plaintiffs from which an agreement can be implied. The receipt was not issued to the plaintiffs’ agent until two days after the delivery of the goods, and probably after they had been sent forward from Cincinnati. The stipulation recites that the oil was delivered for shipment “ on or about the 27th day of June,” and the receipt shows that it was shipped on June 25. The receipt was issued June 27.-</p> <p>III. If it shall be held that the foregoing objection is . not well taken, we say the only agreement made by the plaintiffs for the carriage of the oil was made with the Union Company. To that the defendants are not parties. It was not made by their agent, nor by their authority, nor for their benefit, except as hereafter stated; nor does the ease show that it came to their possession, or that they had knowledge of it, at any time prior to the commencement of this suit. The Union Company was not, in any sense, the defendants’ agent in procuring this oil for transportation, or in contracting with the plaintiffs in reference to it. It was the plaintiffs’ agent, entrusted with the plaintiffs’ goods, and undertaking, within certain limits, to deliver those goods safely at JSTew York. In the leading case of the New Jersey Steam Navigation Company v. Merchants' Bank, (6 How. 344,) the Supreme Court of the United States held that Harnden, the expressman, was the agent of the bank, and that the hank was bound by his contract with the steamboat company. In Stoddard v. L. I. R. R. Co., (5 Sand. 180,) the Superior Court decided that the owner of goods delivered to expressmen for transportation was bound by any agreement they might make with carriers for such transportation. So here, the Union Company might have bound the plaintiffs by a. special contract with the defendants; but no such contract was made. The bill of lading was intended to define the nature, the terms, and the liabilities of the Union Company’s agency; nothing more.</p> <p>TV". A receipt, or bill of lading, or notice, is construed strictly against the carrier, and liberally in favor of the shipper. “ The rule of construction as to exceptions is, that they are to be taken most strongly against the party for whose benefit they are introduced.” (Curtis, J. in Avery v. Merrill, 2 Curtis, 11.) “ The language must be taken most strongly agsinst the defendants. The instrument is executed by them alone. It was drawn up with care, in language selected by themselves, the blank form having been printed in advance, ready to be presented to all persons offering property for transportation. The restrictions were for their benefit. The owners of -packages sent by express rarely examine with care, or indeed have an opportunity to critically consider, the terms of the receipt presented to them.” (Sawyer, J. in Hooper v. Wells, 5 Am. Law Reg. N. S. 23, citing Ch. J. Gibson, in Atwood v. Trans. Co., 9 Watts, 88.)</p> <p>y. Reference to a few general principles will aid in giving a correct construction to the bill of lading in this ease. 1. A carrier may contract to transport goods beyond the terminus of his own route. 2. He may stipulate for a restricted liability for himself, and leave the common law liability of connecting carriers unaffected. 3. Or he may provide that the qualified liability shall extend to connecting carriers. 4. Or that it shall extend to some, fully, or to all, partially, &c. All these are involved in the general proposition, that competent parties may define the terms of the contract which they make.</p> <p>VI. The hill of lading in this case is peculiar, and somewhat novel. It contains whatever agreement was made by the plaintiffs. It expresses the conditions limiting the liability of the Union Company. It assumes the necessity of the use- or employment by the Union Company, in the fulfillment óf said agreement, of “ connecting lines,” and it specifies plainly to what extent the general liability of such “connecting lines” shall, be qualified. 1. All the6 conditions and exemptions . are made applicable to the Union Company. 2. Those that relate to loss or damage to the oil, while in transit, are confined to the Union Company in express terms. The language is, “To he transported by the Union T. and I. Co.” “ That the Union T. and I. Co. shall not be liable,” &c. The plaintiffs agreed to exempt no other party. 3. The rights of “ connecting lines” are then agreed upon and settled. A receipt for the oil, in “ good order,” shall discharge them from liability for “ deficiency in packages.” If they become liable for loss, they “ shall have the benefit of an insurance” upon the property destroyed. Ho further stipulation in their behalf was asked for by the Union Company, or assented to by the plaintiffs.</p> <p>VII. If the bill of lading had provided that' its several provisions should extend to, and enure to the benefit of, any party who might undertake the carriage of the oil over any portion of the route, the only question would be, Is the loss within any of the exceptions ? Or, if it had referred to the Union Company alone, and been silent as to other carriers, it would have afforded a plausible argument in favor of these defendants. But neither is the case. The terms of the agreement are explicit. The Union Company shall not be liable for leakage, delay, collision or fire. The defendants shall not, in a certain event, be liable for deficiency, and in case of loss, shall be entitled to insurance held by the plaintiffs. Why was special provision made for the defendants’ indemnity in these two particulars if all the stipulations of the agreement were intended.to be for their benefit and protection ? Lxpressio unius, ¿■e. ' “ Where parties have- entered into written agreements with express stipulations, it is manifestly not desirable to extend them by any implications; the presumption is, that having expressed some, they have expressed all the conditions by which they intend to be bound under that instrument.” (Broom’s Legal Maxims, 582, marg.)</p> <p>VIII. That the fire clause was inserted for the protection of the Union Company only, and intended to be limited to it, is placed beyond doubt by reference to the character of that company, and the manner in which it was to perform its contract for the carriage of the oil. It was an express company—a “ fast freight line,” running over various routes—owning its own cars, but wholly dependent for motive power upon the companies over whose roads it operated. For carriage by water it relied upon the vessels of other carriers. There was neither railroad, nor steamboat, nor depot anywhere, over which it had control. As a vehicle of transportation, it was largely, if not completely, in the hands and power of the carriers which it patronized.' Its cars could move only as and when those carriers chose to move them. Its freight was deposited in places which those carriers provided or selected. The time consumed, the means employed, the dangers incurred in the use of those means, in the transit of freight, were alike beyond its regulation or control. Collision and fire, especially, were perils to which it was apt to be exposed by the mismanagement or neglect of other parties. It is not strange, therefore, that in undertaking to transport merchandise between distant points, the Union Company should contract for its own exemption from liability as insurers against casualties, which, though not inevitable, it could not even attempt to prevent. And it is significant, that the exemption from loss by fire is limited to places where the merchandise would be, if at all, least under the control of the employees of-the Union Company and most exposed to danger.</p> <p>IX. The judgment should be reversed, and the plaintiffs should have judgment for the value of the oil, with interest and costs.</p> <p>I. The bill of lading, issued by the Union Transportation and Insurance Company to, and accepted by, the plaintiffs’ agent, Grant, acting on their behalf, constituted a special contract by the terms and conditions of which both parties thereto were bound in law. 1. It is now incontrovertible that a carrier may, by special agreement,' contract with reference to the transportation of goods, and thus secure exemption from liability not arising from his own fraud, or culpable negligence. From the long list of cases, English and American, which may be cited in support of this proposition, the following are selected: Harris v. Packwood, (3 Taunt. 264;) N. J. Steam Nav. Co. v. Merchants’ Bank, (6 How. U. S. 382;) Parsons v. Monteath, (13 Barb. 353;) Moore v. Evans, (14 id. 524;) Dorr v. N. J. Steam Nav. Co., (1 Kern. 485;) Wells & Tucker v. The Steam Nav. Co., (4 Seld. 375;) Mercantile Mut. Ins. Co. v. Calebs, (20 N. Y. Rep. 173;) Wells v. N. Y. Central R. R. Co., (24 id. 181;) Bissell v. New York Central R. R. Co., (25 id. 442;) The Peninsular and Oriental Steam Nav. Co. v. Shand, 11 Jur. 771.) 2. In all the reported cases, both in England and America, where the questions involved have arisen upon a bill of lading, issued by the carrier, and accepted by the. shipper, concurrently with the delivery of the goods, such bill of lading has been held to constitute a special contract between the carrier and the shipper. (See Great N. R. Co. v. Morville, 21 L. J. R. Q. B. 319; York; &c. R. Cv. v. Crisp, 14 C. B. R. 527.) The stipulation of the parties and the findings of the court recognize and establish the fact of an “ agreement contained in said bill of lading.”</p> <p>II. By the special contract thus entered into, the Union Transportation and Insurance Company undertook the transportation of the plaintiffs’ merchandise (for the agreed price) from the place of shipment (Cincinnati) to the place where consigned (New York.) 1. The terms of the contract are explicit; and it is expressly admitted that the carrier undertook the transportation of the plaintiffs’ merchandise from Cincinnati to New York, the point named in the bill of lading. 2. Besides, the contract contains a charge for the carriage of the merchandise to New York. And wherever a carrier agrees to a rate of charge, (whether payable at the beginning or end of the journey,) for which the goods are to be transported to a particular place, he is, iii law, held as undertaking the carriage of the goods to, and as responsible, (subject to the restriction-contained in the contract,) for their safe delivery at, the place so designated. (Weed v. Saratoga and Schenectady R. R. Co., 19 Wend. 534. Merchants’ Bank v. Champlain Tr. Co., 23 Ver. R. 186, 209. Muschamp v. Lancaster and Preston R. R. Company, 8 Mees. & Welsb. 421. Wilcox v. Parmelee, 3 Sandf. 610. Mallory v. Burrett, 1 E. D. Smith, 248. Hart v. The Rensselaer and Saratoga R. R. Co., 4 Seld. 37. Krender v. Woolcott, 1 Hilt. 223. Dillon v. N. Y. and Erie R. R. Co., Id. 231. Scothorn v. The South Staffordshire R. Co., 8 Exch. 341. Collins v. Bristol and Exeter R. Co., 25 L. J. R. Exch. 185. Ex. Chamb. 26 id. 103. l H. & N. 517. House of Lords, 29 L. J. R. Exch. 41. 7 House of Lords Cases, 194. Welby v. The West Cornwall R. Co., 27 L. J. R. Exch. 181. Mylton v. The Midland R. Co., 28 id. 385. 4 H. & N. 615. Coxon v. The Great Western R. Co., 29 L. R. Exch. 165. 5 H. & N. 274.)</p> <p>in. The bill of lading being a through contract, and the Union Transportation and Insurance Company having transported the plaintiffs’ merchandise under the same to Hew York, over the various railways, including the railroad and line of the defendants, between Philadelphia and Hew York, the defendants, equally with the Union Transportation and Insurance Company, are entitled to all the exceptions and immunities which the contract contains. 1. Either the defendants were parties to the contract contained in this bill of lading, as joint participators in the service and thé freight paid therefor, the same having been entered into as regards their portion of the route by the Union Transportation and Insurance Company, acting in that behalf for the common benefit, and as their agents ; or the defendants were the agents of the last named company, in the performance of its contract, as respects so much of the entire route as lies between the cities of Philadelphia and Hew York. (Scothorn v. The South Staffordshire Railway Company, 8 Exch. R. 341. Muschamp v. Lancaster, R. R. Co., 8 Mees. & Welsb. 421. Watson v. The Ambergate R. R. Co., 15 Jur. 448. Hart v. Rensselaer and Saratoga R. R. Co., 4 Seld. 37. Mallory v. Burrett, 1 E. D. Smith, 234.) In any view of the case, the defendants were acting under and in subordination to the contract, at a fixed rate of compensation, prescribed by it; and they can, therefore, be charged only with its performance and with the liabilities it in law imposes. 2. Any other or different rule would operate harshly and unjustly as against the defendants, who undertook the duty with reference to the compensation specified and the risk prescribed. The compensation is to be deemed in law to have been fixed with express reference to the risk. (Dorr v. N. J. Steam Nav. Co., 1 Kern. 485, 492. Mercantile Mut. Ins. Co. v. Chase, 1 E. D. Smith, 115,126.) ' And the shipper who secures to himself a through rate of freight, reduced in proportion as his risk is increased and that of the carriers is diminished, should be deemed to have estopped himself from asserting against any carrier a liability voluntarily assumed by himself, when he stipulated for the rate of freight by which that carrier’s compensation is measured and determined. In Collins v. The Bristol and Exeter Railway Company, (25 L. J. R. Exch. 185,) the contract (which exempted the risk of fire) wa's to carry from Bath, on the Great Western Bailway to Torquay, a station on the South Devon Bail-way, passing over, between the lines of these two companies, the line of the Bristol and Exeter Company. The goods were destroyed by fire while in the possession of the Bristol and Exeter Company. The court of exchequer decided, that there being a contract with the Great Western Bailway Company to carry the goods to Torquay, “ the condition as to fire extends to, and protects from, such loss during the entire journey. We think, therefore, that no action is maintainable against any one of the companies, and a nonsuit ought to be entered.” On appeal, the House of Lords, (29 L. J. R. Exch. 41,) affirmed the judgment of the court of exchequer. The Lord Chancellor was of opinion that the contract being to carry to Torquay, the goods were carried on the defendants’ railway under the contract; and that the defendants were consequently either not liable at all, as no agreement was entered into with them, or, if the contract in any way attached to them, the exemption as to loss by fire accompanied it, and exonerated them from liability. In this opinion Lord Brougham concurred. In Coxon v. The Great Western Railway Company, 5 H. & N. 274,) a lot of cattle were received by the Shrewsbury and Hereford Bailway Company, at the Craven Arms station, to be forwarded to Birmingham, a station on the Great Western Bailway Company. The Shrews-bury and Hereford Bailway Company, fixed a through rate of charge, which was entered in the contract, the amount to be paid at the end of the journey. There were certain conditions inserted in the contract, the fourth condition being in the following terms: “ For the convenience of the owners, the company will receive' the charges payable to other companies for conveyance of such cattle over their lines of railway, but the company will not be subjected to liability for any loss, delay, default or.damage arising on such other railway.” The cattle were injured on the Great Western Railway Company’s line, against which company an action was brought to recover the loss'. The court of exchequer unanimously held, that the contract was for the carriage of the cattle to Birmingham; that the risk of the carrier under the condition ceased when the cattle reached the line of the Great Western Railway Company; that the cattle were carried over the line of that company under the contract; and the carrier being relieved of all risk of carriage (the same having been undertaken by the plaintiff,) while the cattle were .being carried over the portion of the route embraced in the Great Western Railway Company’s line, on which portion of the journey the cattle were injured, the plaintiff was not entitled to recover. The same rule of law has been applied and enforced in the courts of this state, in numerous cases at nisi prim, growing out of the same fire in which the plaintiffs’ oil was destroyed, and it has, almost uniformly, been held that the defendants are protected by exemption clauses, contained in bills of lading issued by other companies, at the west, and which provide for the transportation of merchandise to Sew York.</p> <p>IV. The defendants being thus entitled to the benefit of the restrictions and limitations contained in the contract, one of which is an exemption from liability for loss by fire, and it appearing that the plaintiffs’ oil was destroyed by fire while in the defendants’ depot, and that such loss was not attributable to negligence on the part of either party, the plaintiffs’ action cannot be maintained.</p>

APPEAL by the plaintiff from a judgment ordered at the trial, dismissing the complaint, with costs. The action was brought to charge the defendant, as owner of the steamship Euterpe, for the non-delivery of goods described in the bill of lading as having been shipped on board that vessel. They were, in fact, shipped on board the Twilight, another vessel belonging, also, to the defendant, which was lost by perils of the seas.

APPEAL by the defendants from an order made at a special term, overruling a demurrer to the first cause of action set forth in the complaint.

CEBTIOBABI. The railway of the relator is constructed six miles in the town of Carrolton, in the county of Cattaraugus, upon the lands of the Seneca nation of Indians, known as the Allegany reservation, under a contract made by the relator with the Seneca nation of Indians, dated June 28, 1850, giving to the relator the right to make and use the railroad upon such lands.

APPEAL, by the plaintiff, from a judgment entered upon the report and decision of a referee. The action was brought to foreclose a mortgage.

APPEAL, by the defendant, from a judgment rendered on the decision of a referee. The action was for an accounting between the parties as partners in the lumbering business.

<p>In an action to foreclose a mortgage executed by individuals as “ trustees ” of a religious corporation named, extrinsic proof of facts to show whether the mortgage was the act of the corporation, or the individual act of the persons signing it, is admissible.</p> <p>If it was intended by the parties, and especially by the corporation, to be its mortgage, and there is some evidence upon the face of the papers, of such intent, it is erroneous to exclude all explanation, and all extrinsic evidence to show that it was the object and intent of the parties to make it the obligation of such corporation, and not the individual obligation of the persons signing it.</p> <p>It is only in cases where the language admits of no doubt, and is without ambiguity, that evidence in explanation is excluded.</p> <p>Where a bond and mortgage contained a recital that the persons executing them were “ trustees ” of a corporation named, and a promise to pay, by them and their successors m office; Held that this was a clear implication of language that ' the obligation was, and was intended to be, that of the corporation.</p> <p>M'eld, also, that the presumption arising from these facts was strengthened by resorting to'the acknowledgment of the mortgage, in which each of the persons executing the instrument stated that he was a trustee of the corporation ; that he signed his name as trustee and affixed a seal thereto, by and under the order and resolution of the board of trustees ; and that the instrument was executed by him, as such trustee, for the purposes therein mentioned.</p>

THIS action is brought upon a promissory note in the following form : “ One year after date the undersigned promises to pay Joseph C. Kelso or order five hundred dollars with interest, value received, and ■ she hereby charges her separate estate with the payment of this note.” Signed by the defendant.

11 HIS is an appeal from a judgment entered upon the . report of a referee. The plaintiff brought the action for breach of contract by the defendants on their agreement to deliver a quantity of coal. The plaintiff is a dealer in coal at Amsterdam, Montgomery county.

<p>APPEAL from the judgment of the Supreme Court, entered upon the decision of a judge at the circuit, a jury being waived. The facts are stated in the opinion.</p>

THIS action was tried in Washington county, in September, 1867. After a jury was sworn, the plaintiff, by her counsel, opened the case to the jury, and, for the purpose of enabling the defendant to raise questions of law involved in the case, admitted that the action was brought by the plaintiff to recover damages for an injury done to her in December, 1857, while she was a married woman; that the plaintiff is now a married woman, and that her husband, Boyal G-.

THIS is an appeal from an order of the special term, which vacated a judgment in favor of the plaintiff for costs, and directed the clerk to adjust the costs of the defendant, and enter the same in the judgment roll; and that the plaintiff pay $10 costs- of the motion to the defendant.

The action was first tried in a justice’s court where the plaintiff recovered, and the defendant appealed to the county court, where the action was again tried. The only question made is that the defendant was a resident of Allegany county, and was sued by a long summons in Wyoming county, and that, therefore, the justice had no jurisdiction, and should have dismissed the case.

<p>APPEAL from a judgment entered upon the report and decision of a referee.</p>

Prior to April 5, 1859, certain persons, of whom tbe defendant was not one, entered into and subscribed articles of association for the purpose of organizing “The Medina Bank.” In one of the articles it was declared that “ the capital stock shall be called in at such times and in such manner as may, by the directors, be from time to time determined.” It was also provided that the association should cominence business April 5, 1859.

THE above entitled causes are between the same parties, and the same question arises in each.1 The first above entitled action was to recover for services of the plaintiff, as agent for the defendants in the purchase of wood and timber, for the use of the defendants’ road, during the months of August, September and October, 1866, claiming under a special agreement, at $1000 per annum.

THIS is an appeal by the plaintiff from an order made at special term in the third district, denying a motion made by him, to set aside or correct a judgment entered in this action as of the date of May 4,1858, on the ground that such judgment was irregular.

This action was commenced in a justice’s court of Saratoga county, by Harriet Baker against the defendant Joseph H. Brintrall as constable,—for neglecting his duty as an officer in returning an execution issued upon a judgment in favor of the plaintiff against one Mary A. Estee, unsatisfied, when the same might have been collected. The defendant denied the complaint. The cause was tried by a jury who found in favor of the plaintiff.

fTVEIIS action was brought to recover the value of a check JL for $10,000 in gold, alleged by the plaintiffs to have been delivered to the defendants by them on the 20th day of January, 1865, in pursuance of a previous agreement.

The proceedings were commenced before the county judge, by a complaint under the statute entitled “ Of forcible entry and detainer,” wherein the complainant, Cooper, alleged that the defendant Field, at the village of Oneida in said county on the 9th day of June, 1863, at about two o’clock in the morning, did unlawfully make a forcible entry into the lands and premises of the complainant, to wit: [describing them;] on which stood a shop, a building of the complainant; and…

<p>An agent cannot make a profit to himself out of the business of the agency, over and above such reasonable compensation as by law, or the agreement of the parties, he may be entitled to. All profits made by the agent belong to the principal.</p> <p>Where agents, employed to effect insurance upon property, having insured the same in their own names, as well to secure their advances to the owner, as for the benefit and advantage of the latter, in a mutual insurance company, received from the company scrip of the value of §2800, being the sum to which the insured was entitled as their share of the profits of the company for the year in which the property was insured; Held that, although the agents had taken the policy in their own names, had paid the premium, and charged no other commission for effecting the insurance, they were not entitled to the scrip; that it was the property insured that earned the money, and the owner was entitled to its earnings.</p> <p>Where an appropriation by the agents, of such dividends, is attempted to be justified on the ground of a custom prevailing among agents employed in the business of insuring, by which such agents are entitled to all dividends declared by mutual companies, in lieu of all other compensation, for effecting insurance, the custom should be proved by the clearest evidence, should be uniform, and notice of its existence brought home to the principal.</p> <p>No custom can be established which contravenes a well settled principle of law.</p> <p>And it being the settled doctrine of the courts, both of law and equity, that an agent cannot appropriate to his own use any portion of the profits arising from the business of the agency, a custom which overrides that rule of law, and authorizes the agent not to appropriate to himself a part only, but the whole of the profits arising from the business of his principal, cannot prevail. The rights of all parties are best secured by requiring the broker to charge such commissions as he may be fairly entitled to, and permitting the customer to take whatever profits may be earned in the course of the business. Per Mrorar, J.</p>

The action was ejectment,-to recover a farm of between fifty and sixty acres lying in the Morris & Coeyman’s patent, in Schoharie county, which was claimed by the plaintiffs as the heirs at law of Catharine and Elizabeth Sternbergh, deceased. The leading facts are stated in the report of the case in the Court of Appeals, in 33 Sow. Sr. 464. Upon the ■ last trial, the will referred to in the reported case was introduced in evidence.

of John Brandow, deceased. It appeared before the surrogate that on the 13th day of September, 1855, John Brandow executed his will, by the seventh clause of which he gave and bequeathed to the… Held: used, or invested for the benefit and use of the said church, in such manner as they deem best for the interest of the church.

11HIS action was brought by the plaintiff as assignee of . David and William. Welch, under a general assignment for the benefit of creditors, to recover for the alleged conversion of a portion of the assigned property. The defendants justified as creditors, under an attachment, judgment and execution against the Welches, averring that the assignment was fraudulent as to creditors.

<p>The plaintiffs, being first indorsers, in their firm or partnership name, upon certain drafts drawn, and bank notes made, by B. and the defendant second indorser only, on a small portion thereof, and a bank note on which he was first indorser, they entered into a written agreement with B.—the plaintiffs in their firm name, and the defendant individually—by which they, in consideration of certain property assigned by B. jointly agreed “ to pay and assume all drafts by us indorsed for the accommodation of said B. drawn by him on S. G. & Co. amounting to $4500, and the bank paper indorsed by us $936." The agreement then provided that in case more should be realized, out of the property so assigned, “ than enough to pay our said liabilities over said sum of $3693, and all costs, expenses and legal charges, we agree to pay over to said B. or his assigns, all such surplus or excess after payment of our said liabilities, &c. over the said sum of $3693 as aforesaid.”</p> <p>Beldl. That by this agreement neither of the assignees and promissors intended or expected to incur any liability, beyond what they had already incurred, contingently, by their indorsement. That to hold that the defendant, by virtue of such agreement, became jointly liable with the plaintiffs to pay the debts of B. for which he was not before in any respect liable, would be to wrest it from its plain terms and obvious meaning. •</p> <p>2. That there was nothing in the surrounding circumstances which showed, or tended to show, that the defendant meant to bind himself, to any extent, beyond his then existing liabilities.</p> <p>3. That although the defendant supposed, at the time, that he was upon all the paper, as second indorser, the amount of which was specified, this mistaken belief or supposition would not operate to enlarge the contract beyond its - plain limitation in terms, viz. paper “indorsed by us."</p> <p>4. That the legal effect of the joint undertaking by the plaintiffs and the defendant, upon the receipt of the assigned property, was, to change the nature and character of their obligation, as accommodation indorsers of B. into that of principal debtors, with B. as their surety, in respect to all the paper On which their names appeared.</p> <p>5. That the agreement could not be so construed as to interpolate a covenant that the parties would pay and assume all drafts and other bank paper indorsed by them, or either of them; the effect of which would be to change the contract which the parties made.</p>

EXCEPTIONS ordered to be heard in the first instance at the general term. The action was tried at the Schoharie circuit, before Justice Ingalls and a jury. It appeared upon .the trial that in addition to another demand of the plaintiff^ not material to be stated, on the 1st day of April, 1854, one Henry Vrooman, Jr. made his note to the defendant for $300, payable one year after date.

THIS action was tried at the Ulster .circuit. It was brought to recover for injuries to the plaintiff, caused by the running away of his horse, the breaking of his wagon, and his being thrown out, while descending a hill, in the town of Rochester, Ulster county, known as “Deyo’s hill.” The first count of the complaint alleged that the defendant made or caused to he made across the road on the said hill, several embankments or breaks, which were steep, and composed of large…

<p>APPEAL from an order made at a special term, sustaining a demurrer to the complaint.</p>

The complaint alleged that the plaintiffs were the owners of lot number 122 on the Albany pier, and the building erected thereon, &c. and that the defendants are a municipal corporation, duly organized under the laws of this state.

The plaintiffs are the brothers, and sisters, either of Lot Ackley, or Tamson Ackley, who were husband and wife. They brought this action to recover of John Ackley, as trustee, their alleged interest in certain trust funds, claimed to be held by him for their use. The other defendants (except William Ackley and wife) were made parties, as being entitled under the deed, and refusing to join as plaintiffs.

THIS is an appeal from a judgment rendered upon the report of a referee. Joshua Fiero died May 14, 1864, having duly made a will, wherein he appointed the defendants executors thereof, and said will was admitted to probate, and letters testamentary were issued to such executors, and thereafter the plaintiff presented a claim to the appellants, as such executors, which was rejected by them, and the same was referred, under the statute, to a referee to hear and determine.

<p>ACTION for the construction of the will of William Bostwick, deceased.</p>

APPEAL by the defendant from a judgment entered upon the report of a referee. On the 4th day of October, 1864, the plaintiff becanie the purchaser, at a foreclosure sale, of certain premises, under a decree which provided that the purchaser should be let into the possession of the premises sold upon production of the referee’s deed.

THE Second National Bank of Erie, Pennsylvania, on March 23, 1866, sold a draft on Culver, Penn & Co. the agents of this bank in New York, to W. G. Gardner of Erie, which was remitted by him to the plaintiffs in this action, in payment of a debt due them. The plaintiffs received it on the 26th March, and on the same day deposited it with the Tradesmen’s Bank.

<p>An agreement which is designed, or which, in its nature and effect, tends to lead persons who are charged with the performance of trusts or duties for the benefit of others, to violate or betray them, is contrary to public policy, and void.</p> <p>There is no difference, in principle, whether the trust which it is meant to prevent, is public or private; nor is it material that nothing actually fraudulent or illegal was done, under the contract. It is enough that such is the tendency of it.</p> <p>An agreement between the plaintiff and defendants, which contained a simple and plain engagement on the part of the latter, to control the action of directors and trustees of an existing railroad corporation, or those of a corporation which was thereafter formed, under their auspices, and to cause such directors or trustees to agree by vote to pay a claim of the plaintiff on account of past due coupons on bonds of the company, without reference to the legality thereof, or to the interests of their cestuis que trust; and in fine, to pay the plaintiff at all events, regardless of their duty to the corporation or its creditors^ in consideration that the plaintiff should use his influence to induce the bondholders to fund their coupons ; Held to be clearly within the operation of the principle above stated.</p>

THIS action was for fraud in the sale of lands bought by the plaintiffs in December, 1864. It was brought by the plaintiffs, who, in 1864, were partners in the petroleum business in Hew York, against Francis A. De Wint, John W. Jones, Edgar Reed and John S. Dickerson. Francis A. De Wint died during the pendency of the action. The cause was tried at the Dutchess circuit in December, 1866, before Justice J. F. Barnard and a jury.

THIS is an action of replevin, brought to recover the possession of a quantity of mill feed, described as bran and fine middlings. The defendant justified the taking, under an attachment issued and directed to him, as sheriff of Brie county, in an action wherein George Hunter was plaintiff and John Boche was defendant; and alleged that, on the 3d of January, 1867, he attached the property in question as the property of the said John Boche.

APPEAL by the defendant Stenton from an order made at a special term, allowing the exceptions of the defendant Boughton to the report of a referee in a foreclosure suit, and declaring that Boughton was entitled to the first lien on the surplus moneys arising from the sale of the mortgaged premises, to the amount of his claim, ($975,) and modifying the report accordingly.

THIS is an action on the case, to recover damages for injuries to the plaintiffs’ road bed, caused by the same being washed and flooded, in the years 1864 and 1865. The complaint alleged that the embankment and bridge built and constructed for the defendants’ railway, at and over Mead’s creek, in the town of Irwin, Steuben county, dammed the stream so as to produce the flood and injury, and contained all the necessary averments to make out a cause of action.

<p>Where a conveyance of land is made, subject to a prior mortgage thereon, given by the grantor, the premises are the primary fund for the payment of the mortgage, and thenceforth, as between the grantor and the grantee, and those claiming under the latter, the grantor stands as a mere surety for the payment of the bond debt; and, upon being compelled to pay the same, has a right to be subrogated to the position of the holder of the mortgage, in order' that he may resort to a sale of the premises to effect Ms own indemnity.</p> <p>And if the holder of the bond and mortgage refuses to accept a tender of the amount due thereon, with costs, and to assign the securities to a third person, for the benefit of the mortgagor, and attempts to enforce the payment of the bond, by suit, he may be ordered to assign the bond and mortgage to such' third person, on receiving the amount due thereon, with the costs accrued in the action, on the bond, and be forever restrained from prosecuting such action.</p> <p>When such assignment is made, the assignee will be the trustee of the vendor.</p> <p>A deed conveying premises, “ subject to a certain mortgage, executed by the parties of the first part, on said premises, in the year 1856, of one thousand dollars,” sufficiently describes the mortgage; as an examination of the record will disclose the name of the mortgagee, and the date of the record.</p>

APPEAL by the plaintiffs from' a judgment entered at the circuit, on a trial before the court, without a jury.

<p>Teh AHOY BY THE CURTESY.—MARRIED W OM AH’S ACTS.— COHSTRUCTIOH OE WlLL.—TRUST.—SlTSPEHsioh oe Power oe Aliehatioh.</p> <p>The estate of tenancy by the curtesy still exists in this State, notwithstanding the statutes of 1848 and 1849, known as the Married Woman’s Acts. Those statutes have not interfered with the right- of the husband to the personal estate, or the estate by curtesy, in the real property of the wife, after her death, if not disposed of by her, either during life, or by will ' to take effect at her death.</p> <p>A direction in a will that all the residue of the estate shall remain in the hands of the executors, or under their control, for the use of the testator’s wife and children, while under age, and that after the youngest child shall have arrived at age, the same shall be divided among the children,—does not give the executors an estate in trust.</p> <p>Where it is apparent from the whole frame of the will that the testator did not contemplate any of his children dying before coming of age, but limited the distribution of the estate upon the majority of the youngest child, the bequest may be regarded dependent on the life or minority of that child alone, and is not void as suspending the power of alienation beyond the period of two lives.</p>

THIS is an appeal from an order of the special term of this court, sustaining a demurrer to the complaint and ordering judgment for the defendants thereon.

THE plaintiff sued for the last quarter’s rent of the lot and the building thereon, number 390 Broadway, Hew York, upon a lease dated July 13, 1859, from the plaintiff to the defendants, for the term of six years, eight months and fifteen days, from the 1st day of August, 1859, at $12,000 a year. The defendants set up a counter-claim, arising under the terms and provisions of that lease.

THIS action was brought by the plaintiffs as Commissioners of Pilots, to recover penalties for violation of the provisions of section 29 of the act “ to provide for the licensing and government.of the pilots, and regulating pilotage of the port of Hew York,” passed June 28, 1853, as amended by chapter 243, laws of 1857, in employing a person not holding a license from the plaintiffs, or under the laws of Hew Jersey, to act as pilot.

The plaintiff sued the defendant upon a policy of insurance against fire. It appeared, on the trial, that a fire had occurred, and the defendant, under a clause to that effect in the policy, elected to do the repairs, instead of paying the damage caused hy the fire. The defendant contracted with a mechanic, a Mr. Coar, to do the repairs, and the plaintiff employed a person (Mr. Howell) to oversee the work.

THIS-action was brought upon a policy of-life insurance issued by the defendant by its local board of directors in the city of Hew York to Cunningham P. Maemurdo on the 8th day of December, 1845. The policy is substantially in the usual form of such instruments, and by.it, in consideration of the payment of the premium agreed upon, the defendant agreed and undertook to insure Macmurdo’s life in the sum of ten thousand dollars.

OB the 14th day of October,- 1857, the defendant Abram Fradenburgh was the owner of a lot of land situate in the village of Yonkers, Westchester county, which he had purchased a few months previous. He had for several years prior as well as subsequent to that time, been engaged in the blue stone business in Yonkers.

THIS case was tried at the Franklin circuit in February, 1868.

THIS is an appeal by the plaintiffs from a judgment dismissing the complaint, directed by the judge at the circuit, on the ground that the plaintiffs had failed to establish a cause of action. The action was brought against the defendants as common carriers.

THIS is an appeal by the defendant from a judgment in favor of the plaintiff entered on the report of a referee. The plaintiff, by his original complaint, claimed to recover $80 and interest, under a special oral contract, for services rendered by his minor son. The defendant admitted the contract- for services, in substance, except that payment was to be made to the son; and denied all obligation to the plaintiff.

APPEAL by the defendants from a judgment entered upon the findings of the judge before whom this action was tried without a jury. The action was brought by the plaintiffs, to recover certain premises described in the complaint, which they claimed as equitable owners, and upon which the defendants, Corson and Shields, claimed a lien as judgment creditors of Christopher Wildberger, the holder of the legal title thereto.

- I. The act of 1867, chapter 945, contemplates an invasion of proprietary rights of the plaintiffs, as owners of the said piers, with their adjacent slips and wharves, and is therefore unconstitutional and void.

<p>The defendant’s testator executed a lease to H. of certain premises for the term of twenty-one years from the 1st day of May, 1824, which contained a covenant on the part of the lessor for a new lease at the expiration of the term, for another period of twenty-one years. On the 1st day of March, 1844, a lease was executed and delivered to the plaintiff, as assignee of the original lessee, for a second term of twenty-one years, which contained a covenant that at the expiration of the said second term, the lessor would, at his election, either grant a new lease of the premises for a further term of twenty-one years, or that he would pay the party of the second part the value of “ all such stone or brick buildings ” as might have been “ erected by the said party of the second part, his executors, administrators or assigns, on the said demised premises, and be then standing thereon.” At the expiration of the second term, the defendant elected not to give a lease for a a third term, and refused to pay for certain stone and brick buildings on the premises, which had been erected by H. the original lessee.</p> <p>Held that although the plain import of the clause in the second lease, respecting payment for the buildings, standing and considered by itself, was that the defendant would pay for such buildings only as the plaintiff erected; yet that other provisions contained in such lease, as well as in the original lease to H. indicated that a different construction should be given to it. And that as the second lease was given for the purpose of continuing and extending the term created by the first, the latter should be considered, so far as applicable, in ascertaining the construction to be placed upon the clause in question.</p> <p>And the defendant having given the plaintiff the second lease without attempting therein to divest him of the title to the buildings which he had under the assignment to him of the first lease; the same expressly declaring that the plaintiff should continue to be the owner of the buildings, and should remain such owner even though a third lease should not be given to him; and securing to him the privilege of taking them away, provided he did so within ten days after the expiration of the term created by the second lease; Held that the buildings were not only the plaintiff’s property, as the assignee of the first, and lessee of the second lease, but he was to remain owner of them, even though the defendant should conclude not to give the third lease.</p> <p>And that the second lease should be so construed as to render the defendant liable to pay for such buildings, upon his refusal to give a new lease. And that thus construed, it imposed on the defendant the obligation of giving the plaintiff a new lease, in default of an election on his part to pay for the buildings.</p>

CTIObT-to recover back the sum of $45,000, the price of certain shales of stock in a gold company, which the plaintiffs allege they were induced hy certain false and fraudulent representations of the defendants, set forth in the complaint, to buy of them; the plaintiffs offering to return and transfer the stock to the defendants. The action Was tried at special term before the court, without a jury

<p>Although there is a certain trust relation between the shareholders and the directors of a corporation, yet the trust put in the directors usually extends, and in any particular case will be assumed to have extended, only to the management of the general affairs of the corporation, with a view to dividends of profits, and therefore that the trust relation between the stockholder and director extended no farther.</p> <p>Hence a sale of stock, by a stockholder to a director, or the stock itself, is not so far connected with, or the subject of the trust or trust relation, which is admitted to exist, as to subject the director to, or give the seller the benefit of the principle of equity applicable to the dealings and contracts of parties between whom there is a trust, or confidential relation, and to require the purchaser to prove not only that he paid a full and fair price for the stock, but also that he disclosed to the seller every fact'or circumstance known to him, and not known to the seller, material on the question of the value of the stock.</p> <p>Such a case is not a case of constructive fraud; and there is no such trust or confidential relation between the stockholder and director as to make the above principle of equity applicable; and the sale, if set aside, must be set aside on the ground of actual positive fraud.</p> <p>As between buyer and seller, fraud may be perpetrated by a false and fraudulent representation of a material fact, or by a fraudulent concealment of a material fact.</p> <p>Where there was no evidence to show that on a sale of stock by a stockholder to a director of the corporation the purchaser made any material representation as to 'the affairs or condition of the company, or of any fact material to the question of the value of the stock, or any false representation of p. material fact, that induced the sale; or that he either did or said any thing to mislead the seller, or to divert or prevent him from ascertaining all that could then be known of the affairs, condition and prospects of the company; or from making any inquiry as to any fact material on the question of the value of the stock; or that the purchaser did any thing which misled or deceived the plaintiff, or was likely to mislead or deceive him; or which diverted or was likely to divert or prevent him from learning all that he, the purchaser, knew about the value of the stock, or any fact material to the question of value; Held that under these circumstances the sale could not be declared void, on the ground of fraudulent representations of material facts or fraudulent concealment of material facts, by the purchaser.</p>

From the case it appears that, some time in November, or early part of December, in the year 1865, one O. F. Burns drew his check, and post-dated it, January 10, 1866, of which the following is a copy: “Albion, N. Y., January 10th, 1866.

THE ■ complaint in this case is to recover damages for steam engines, boilers, and other fixtures taken by the defendants and converted to their own use. -The answer sets up as a defense, that the goods were seized by authority of a court appointed under an act of the Confederate congress, during the war, as the property of alien enemies; that after such seizure the property was confiscated and ordered to be sold; that at such sale the defendants purchased two engines, and…

<p>A testator, by his will, devised certain premises in the city of New York to his widow, daughter and son, “ in equal portions, to them and their heirs forever, to have and to hold said estate upon the conditions, qualifications and reservations herein contained, and subject to a trust to be executed by my said executors, who are hereby appointed trustees for the purpose.” The executors were required to have the control of the property for the purposes of their trust, to enable them to execute the duties of their appointment; to rent the premises; to collect the rents; and, after paying the taxes and premiums for insurance, to pay certain designated annuities to various -persons, including the father and sisters of the testator, amounting in all to the annual sum of $850, apply the balance towards the payment of two mortgages, one on the property yielding such rents, the other upon a farm in Connecticut, devised to the testator’s son, and at the expiration of the trust, to surrender the property to the persons to whom it was devised, subject to the performance and discharge of all these duties.</p> <p>SM1. That these provisions of the will created a trust in the executors.</p> <p>2. That such trust was illegal and void, by reason of the limitation upon its existence and continuance which the testator had imposed upon it, viz. the payment and extinction of the mortgages; which might suspend the absolute power of alienation beyond the period allowed by law.</p> <p>3. That the annuities to the father and sisters of the testator could be sustained, as charges upon the real estate, notwithstanding the failure of the trust, .</p>

APPEAL by the defendants from a judgment entered upon the report of a referee. Held: reversing decree below, that when the same person was administrator de bonis non and guardian, the sureties of the administrator were not liable for amount of a legacy due the ward of the guardian.

THIS is an action brought by the plaintiffs, as stockholders of the Erie Railway Company, against that company, and all its directors, seventeen in number, seeking: 1. To remove those directors, and appoint a receiver of all the property, rights of action, and records of the company. 2.