Volume 53 — Barbour's New York Supreme Court Reports

QUO W ABE AM TO against Edward L. Molineux, claiming the military office of major-general of the second division of the Mational Guard of the state of Mew York, under an appointment made by the governor, August 31, 1868, during the recess of the senate.

<p>THIS is an action to recover damages for the non-performance of an agreement for the sale of real estate. The agreement was signed on behalf of the defendant by one Poillon, a real estate broker, who testified that he called on the defendant, who told him “ that the price was $5500; that $4000 could remain on the property, but if 1 could sell it so as to get $2500 cash in place of $1500, he would be very much pleased'; ” and after the agreement was'signed, Poillon met the defendant and told him he had sold the property agreeably to his terms, receiving $2500 in money instead of $1500. He said “all right,” and passed on. Again, he testified: “ I called on the defendant to get a chance to sell it. He authorized me to sell it and gave me the terms.” Again, “ I wrote him a letter before I saw him. He called at my office then, and that was my first interview with him. That? was when he gave me the terms as I have stated, and nothing further took place between us before the signing of the contract that I can recollect. ' He wanted me to sell it on these terms, if I could.” On the day of the contract, the broker gave the defendant written notice of it. At the conclusion of the plaintiff’s testimony the defendant moved for a verdict on the ground that no authority had been shown in Poillon to execute a written contract for the sale of the premises, and that no ratification of such contract by the defendant had been shown. Which was denied, and the defendant excepted. . At the conclusion of the case, the court charged the jury that if authority was given to Poillon, as he stated, to sell the property, he had power to execute the written contract and bind his principal. To this the defendant excepted.</p> <p>The court further charged the jury that if the defendant was liable at all, he was bound, not only to refund to the plaintiff the $100 paid by him, but was liable also for the difference between $5500, the contract price, and the actual value of the premises at the time the contract was to have been performed. To this ruling and charge of the court the defendant duly excepted.</p> <p>The jury rendered a verdict in favor of the plaintiff for $250.</p> <p>■ The defendant thereupon made a motion for a new trial upon the minutes of the judge, which motion was denied by the court, and the defendant duly excepted to such decision.</p> <p>■ The defendant appealed from the judgment, and from the order denying motion for a new trial.</p>

<p>THIS was an action on a promissory note for $400, made by "William H. Horton, on the 3d day of May, 1865, payable to Hiles Knickerbocker, or bearer, one year after date, with interest at six per cent, and indorsed by Samuel Horton. The action was brought against maker and indorser, jointly, but Samuel Horton, the indorser, only, appeared. On the 19th day of April,' 1866, Henry H. Sheldon, the then holder of the note, transferred and delivered it to the plaintiff, who became the holder and owner thereof. On the same day, and previous to the delivery of the note to the plaintiff, Henry H. Sheldon went to the defendant Samuel Horton, and told him he had the note, and that William H. Horton wanted it to lie another year. He asked Samuel Horton if he was willing, and he said he was; he looked it over and said it was a good note. The note was then passed to the plaintiff, and was permitted to run another year, without any demand being made. At the expiration of said year, to wit, on the 3d day of May, 1867, the plaintiff, being still the holder and owner of said note, demanded payment of the same from William H. Horton, which being refused, he notified Samuel Horton, the same day, that he should look to him for payment.</p> <p>Ho part of the note having been paid, this action was brought for the recovery of the amount due thereon.</p> <p>On the trial at the circuit, the above facts were established, and a verdict found by the jury, for the plaintiff, against both defendants, and judgment entered accordingly. The defendant Samuel Horton moved, upon the minutes of the judge, to set aside the verdict, and for a new trial; which motion was denied. And from the judgment and order the said defendant Samuel Horton appealed.</p>

<p>APPEAL by tbe plaintiff from a judgment ordered at a special term, on a trial before the court! without a jury. The plaintiff, as the widow of Patrick Maloney, deceased, brought this action to recover her dower interest in certain real estate situate at Hunter’s Point, Queens county.</p> <p>The facts are briefly these: Patrick Maloney, being the owner of the premises described in the complaint, on the 11th of ¡November, 1864, conveyed the premises to hi's brother, Michael Maloney, for the nominal consideration of $1. The plaintiff, Eliza Maloney, joined in this conveyance and released her dower; and on the 28th of December, 1864, Michael Maloney conveyed the premises in fee to the plaintiff Both of these conveyances were duly acknowledged and recorded in the office of the clerk of Queens county. In March, 1865, judgment was recovered against Patrick Maloney for $1946.14. Subsequently, upon proceedings supplementary to execution, a receiver of the property, &c. of Patrick Maloney was appointed. On the 10th of April, 1865, the receiver brought an action in the Supreme Court against Patrick Maloney, Miza Maloney and Michael Maloney, for the purpose of having the above mentioned conveyances set aside and declared fraudulent and void as to creditors of Patrick Maloney. All of the defendants appeared and answered the complaint. The issues so joined were tried, and judgment was, on the 17th of ¡November, 1865, rendered, declaring that the conveyances were void, as having been made to hinder and defraud creditors; and directing the premises to be sold; and further ordering that any of the .parties who should be in possession should deliver possession thereof to thé purchaser. Under this order, the receiver sold the premises to John J. Conklin for .$6100, subject to a mortgage of $750, and Conklin assigned his bid to the defendant Horan. On the morning of the sale, and. prior to the property being offered for sale, the plaintiff called at Horan’s place of business and asked him to attend and bid, informing him that she had no claim upon the property. Conklin' the purchaser, was present at this time. The plaintiff, Horan and Conklin attended the sale, and were present when the terms of sale were read, by which it was stated that the premises would be sold subject to the $750 mortgage. The report of sale having been confirmed, the receiver, on the 31st of July, 1867, conveyed the premises to John Horan. The price paid was the full value of the premises at the time of sale.</p> <p>The court found the above facts, substantially; and as a conclusion of law decided and determined that the plaintiff had no estate of dower in the premises described in the complaint, and that judgment should be rendered for the defendant dismissing the complaint, with costs.</p>

mHIS action was brought to recover money due on a X contract entered into between Patrick Coyle, deceased, and the city of Brooklyn, for the paving of Grand street with Belgian pavement. The contract bears date the 14th day of April, 1865. The work was commenced in the month of March previous, and was completed about the 16th day of September, 1865. Coyle died on the 30th day of May, 1865, and the plaintiff is his administratrix.

THIS action was brought against Peter Neefus and Sarah Neefus, for the specific performance of the following agreement: “ Peter Neefus and Sarah Neefus sell unto John J. Snyder the piece of land in Platbush on East Broadway, adjoining land sold to Mr. Randolph, containing fifty feet front and rear, and in depth to land of Mr. Schoonmaker, for the price of $1325.

APPEAL by the plaintiff from a judgment entered upon the verdict of a jury. The action was brought by the plaintiff as survivor of the firm of Eoberts & Cathell, to recover a balance due from the defendants upon a sale of merchandise. The defense set up in the answer was that the merchandise was sold upon a special agreement that the same should be paid for, to the full amount thereof, by promissory notes of third parties.

APPEAL by the defendants from an order made at a special term, directing a peremptory mandamus, to the commissioners of highways of the town of Palatine, in the county of Montgomery, commanding them, forthwith, to reduce a certain highway in said town, from’ the width of four rods, to the width of three rods, under the provisions of an act of the legislature, passed May 7,' 1868., chapter 687, entitled “ An act to regulate a road in the town of Palatine, Montgomery county.”…

APPEAL by the plaintiff from an order sustaining a demurrer to the complaint. The complaint alleges the appointment, in March, 1865, of Jacob Hartman as administrator of the. estate of Sanford Hartman, deceased, his removal in December, 1866, and the appointment of Myrick in his place; that in May, 1865, said Jacob, as such administrator, contracted with the plaintiff to manufacture and deliver a set of grave stones, for the price of $140, to be ready by September following.

THIS action is in the nature of a quo warranto, to dissolve a corporation known-as the Northern Eailroad Company, and for other relief.

<p>THIS is a civil action for an assault, and battery, alleged in the complaint to have been committed' by the defendant upon the plaintiff, with the intent “ against her will, to have carnal connection with her, the plaintiff, and by force and violence against her will, to ravish herthese latter allegations being obviously made with the view of enhancing the amount of damages to be recovered, if any recovery should be had. The answer merely denies the allegations of the complaint.</p> <p>On the trial, at the circuit, the defendant offered to prove: 1st. That the plaintiff" on previous and divers occasions, after coming to the house, had conducted herself lasciviously towards the defendant, and to show particular indecent acts.</p> <p>2. That three or four days after Mrs. Crossman came to the house, one Vincent came there, and staid over night, and that during the evening the plaintiff took indecent liberties with him, and he with her, in the presence of the defendant and others.</p> <p>3d. That among other things, she sat down facing Vincent, putting her elbow on his knee, and handled and fondled him indecently.</p> <p>To which testimony, and to each proposition as evidence the plaintiff objected. The court sustained the objection as to each of said propositions severally. To which rulings the defendant excepted.</p> <p>The defendant offered to prove separately and as separate propositions:</p> <p>1st. That Vincent staid in the house over night on that occasion, and slept up stairs, and when he was ready to go to bed, Bradley took a light to show him to his room; that the plaintiff took the light out of his hand, and went up to Vincent’s room herself with him, and there remained until the circumstance attracted the notice of the family.</p> <p>2d. That Bradley having himself gone to bed, got up and went to Vincent’s room, and called the plaintiff out and spoke to her about the impropriety of her conduct, saying to her in substance that it was scandalous, and that his family were shocked at it.</p> <p>3d. That he then went down stairs and again went to bed, and that the plaintiff soon followed and came into his room, and first sat down on the side of his bed, and then lay down by the side of him, and then made indelicate and indecent remarks and demonstrations.</p> <p>4th. That she afterwards returned to Vincent’s room, and there remained the balance of the night.</p> <p>5th. That from time to time, after she came to the house, she made unchaste approaches and demonstrations to the defendant.</p> <p>6th. That when the defendant was about to pass through the doors of the house it was her habit to meet him in the doorway and rub and push against him.</p> <p>7th. That she would go down cellar at various times, and call the defendant down after her, and then act unchastely.</p> <p>8th. That she would go to her own room and call him in after her, and then act unchastely.</p> <p>9th. That she often, while there, indecently handled the person of the defendant and exposed her own.</p> <p>10th. That while there, and on a day previous to the last, she directly proposed to the defendant to become his mistress.</p> <p>To which testimony and each and every item thereof, both separately and collectively, the plaintiff’s counsel objected and the court sustained the objection, excluding" such testimony and each and every item thereof, separately, to which ruling, and each of them separately, the defendant’s counsel then and there duly excepted.</p> <p>The defendant’s counsel again asked that the said testimony might be admitted as' affecting the question of damages, to which the plaintiff’s counsel objected, and the court excluded the same; to which the defendant’s counsel excepted.</p> <p>The defendant’s counsel again asked that the said testimony might be admitted as circumstantial evidence affecting the question of probable gtiilt of the defendant. To which the plaintiff’s counsel objected, and the court sustained the objection, to which ruling the defendant’s counsel excepted.</p> <p>The said testimony was also offered as affecting the relative credibility of parties, and also for showing the intent of the parties, but was also excluded and exception taken as above.</p> <p>The plaintiff obtained a verdict of $500 on the trial at the circuit, upon which an order was made that the exceptions taken at the trial, in regard to the admission and rejection of evidence, and as to certain points of the charge to the jury, be heard in the first intance, at the general term.</p>

This is. an action by a lessor to recover rent in arrear, from a guarantor or surety in the lease.

ACTIÓS to recover the possession of real estate. The' plaintiff was the owner of a farm in Genoa, Cayuga, county. On the 26th of February, 1867, the parties entered into a written agreement under seal, the plaintiff to sell and convey, and the defendant to purchase and pay for the same.

The appeal is brought by said Clark, Smith and Lewis. The injunction restrained said Clark, Smith and Levns and the town of Lebanon from taking any steps or proceedings whatever towards executing or issuing, or disposing of the bonds, or any part or portion thereof, of the said town of Lebanon, amounting to $125,000, in payment or satisfaction and discharge of a subscription to the capital stock of the ¡New York and Oswego Midland Railroad Company, made by said Clark, Smith…

The defendant answered, first, denying the . .allegations of the complaint.

Lathrop, on the ground that she was not served with any process in the action, and that she did not appear therein. The petitioner, Mrs. Lathrop, was married to Solon II. Lathrop in July, 1847. In July, 1854, the petitioner and her husband executed a mortgage upon lands belonging to her husband, situate in Buffalo, to Thomas M. Foote as executor, &e. Default in payment was made, and- this action was instituted, April 14,1857, to foreclose the mortgage.

<p>MOTION for a new trial, on exceptions ordered to be first heard at á general term.</p> <p>The action was brought on a contract to deliver, on demand, two thousand bushels of corn; breach, neglect and refusal to deliver.</p> <p>The bark Crolden West, and her cargo, some 15,000 bushels of corn, were owned by the defendant; J. N. Corn-stock was master and S. S. Guthrie consignee to sell. The bark arrived in Buffalo harbor, near the close of navigation on the lakes, in 1866, and wintered in the harbor. March 18, 1867, Guthrie sold to Abraham S. Griffin 10,000 bushels of the corn, mentioned in the receipt of the price as “corn on board the bark Golden West now lying in Buffalo Creek, which corn I agree to store free, and deliver in store free of all charges (except that I am not to insure it,) until the opening of navigation.” This instrument was signed L. S. Guthrie. On the 10th of April Griffin sold to the plaintiffs 2000 bushels of the corn, and received payment. The corn was still in the Golden West. It was mentioned in the bill of sale “Insurance 7 days,” and “ Curtis & Co. pay insurance after the 13th, $2000.” The plaintiffs proved that the corn was insured against loss or damage on board the vessel, to the amount of $2400, until May 1, 1867.</p> <p>"When Griffin sold, he gave an order directing bark Golden West to deliver the corn, “ free of storage until the opening of canal navigation.” This order was “ accepted March 23, 1867, J. H. Comstock, master.” The bark was lying in front of the Hew York and Erie elevator, and on the 19th of April, by the direction of Guthrie, the consignee, the corn was transferred to the elevator. The plaintiffs had no notice of the transfer, and no insurance on the corn in the elevator, and during the night of the 19th of April, the elevator and corn were destroyed by fire. The plaintiffs demanded the corn ; it was not delivered, and this action was commenced. Some evidence was given as to the practice or custom to give notice of intention to remove grain from the vessel to the warehouse, and of Guthrie’s promise to see that the plaintiffs should have notice, which .is sufficiently noticed in the opinion.</p> <p>The court nonsuited the plaintiffs, and they excepted.</p>

The action was to recover the balance of the price of hogs sold. The plaintiff resided in Mexico, Wyandotte county, Ohio. One of the defendants resided in New York city, and the other in Chicago, and they had a place of business in each of those cities. On the 1st of November, 1867, between 8 and 10 o’clock A. M. the plaintiff sold to the defendants, in Buffalo, hogs, the price amounting to $3408.07. The sale was for cash.

On the 1st of October, 1857, The People’s Exchange Bank of Wakefield, Bhode Island, held two negotiable promissory notes of $4000 each, made by Edwin Thomas, the husband of the plaintiff, and indorsed by the defendant, the brother of the plaintiifj for the accommodation of the maker. These notes were past due, and the indorser had been duly charged.

THIS action was brought against the defendants, as common carriers, to recover for the loss of certain leather received by them for transportation from Hew Haven to Hew York. The plaintiffs were the agents of the tanneries of Homer Ely and Cotton Ely, of Ashleyville, in Massachusetts, the consignors of the property, and sued as their assignees.

THIS is an appeal from a decree of the surrogate of Monroe county, entered October 23, 1867, upon the final accounting of the respondent as sole executrix of, &c. of Matthew Brown, deceased. The testator died December 28, 1851. The decree of the surrogate adjudged the sum of $7150.54, to be due to the executrix, which sum, together with the costs, ivas ordered to be paid to her out of the assets.

ACTION to recover from the county of Livingston a portion of two several taxes paid by the plaintiff to the collector of the town of Geneseo, which taxes were based upon the annual assessment of said town, for the year 1864, duly made and returned to the board of supervisors.

THIS was an action brought by the plaintiff against the defendants upon a note for $1000, dated October 6, 1866, made by the defendants, payable to the order of the plaintiff on the first day of March then next, with interest.

APPEAL by the defendants from an order made at a special term overruling a demurrer to the complaint. The complaint alleged that the defendants Abram Hill and Margaret Hill are husband and wife; that they were before the commencement of this action lawfully married, and have for several years past lived and cohabited together as husband and wife.

THIS was an action for trespass on land, The land was a small gore or strip lying in the city of Auburn, originally owned by Dyer Palmer, the common source of title, and conveyed to the plaintiff, by deed dated October 15,1859, and subsequently to the defendant by deed dated April 14, 1864. The action was commenced in a justice’s court.

TVi HI plaintiff in this action claimed to recover the value of certain lands conveyed to the defendant in the year 1855, together with the expenses of building and maintaining cattle yards and pens erected upon his own land, to accommodate the defendant in the shipment of cattle, swine, sheep, &c. from his land, upon the cars of the defendant.

THIS action was brought to recover the sum of $400.19, which the defendant had received as the proceeds of the sale of a quantity of cheese manufactured and sold by the First Collins Cheese Factory. The plaintiff claimed to recover the money as the assignee of Peter G-arnel, to whose credit the money stood on the books of the factory. Whatever right he had to the money, was in some maúner, though how does not appear by the case, derived from his brother John G-amel.

THIS is an appeal by the defendants from a judgment rendered in favor of the plaintiff on the 4th day of October, 1867, for $304 54, damages and costs.

The action was brought by the plaintiff, against the defendants, to recover a balance alleged to be due to the firm of B. F. Carver & Co., of which firm the plaintiff was a member, on an account kept by that firm with the defendants. The case was tried before a referee, who found the following facts: Pirst.

THE complaint in this action was upon a promissory note given to the Bridgeport Eire and Marine Insurance Company, .'by the defendant,as a stockholder, and in part payment for stock in said company, for which he had subscribed. It was‘dated July 28, 1854, and given to said company for the purpose aforesaid, on or about that day.

This action was for the claim and delivery of personal property, being five bags of chiccory, valued at $35.48, with damages for the detention thereof. The defendants, in their answer,' set up several defenses: 1st. A general denial. 2d. That they had a lien upon said goods for storage. 3d. That the plaintiff was not the real party in interest. 4th. A former action pending for the same cause of action. The action was referred and tried before a referee.

THIS is a motion by the defendants, Woods, for a new trial, under' section 268, subdivision 1 of the Code, upon a case and exceptions to review a decision at special term, directing an account.

THIS action was brought to compel the defendants to interplead concerning the moneys payable under a policy of life insurance issued to Daniel H. Lawrence, Jr. the several defendants having commenced each her separate action agaist the company, claiming said moneys. The policy referred to was issued by said company and dated January 25,1861, and is numbered 347.

OH the 20th day of December, 1859, Howes & Co. who. were owners of one half the ship Wanderer, then under a charter to the Peruvian government to go to the Chincha Islands, take on a cargo of guano, and carry the same to Hampton Eoads, assigned to the plaintiffs all their interest in the said charter, and in and to the freight to be earned under the same, to be applied, when' received by the plaintiffs, to the payment of a demand they held against Howes & Co. as ship’s…

THIS action was brought by the above named plaintiffs against the above named defendants, (who all, excepting Thomas S. Furniss and Edward Tozer, are the heirs-at-law and personal representatives of Edward F. Sanderson,) to have the will of the said Edward F. Sander-son proved in this court as a will of real and personal estate, under a commission to be issued for that purpose, as provided by part 2, chapter 6, title 1, article 3, sections 78, 79, &e. (original §§, 63, 64,…

THE questions presented in this case arose upon a case and exceptions ordered to be heard at the general term in the first instance. The action was tried before Justice Johnson and a jury at the Steuben circuit, in November, 1867.

<p>APPEAL from a judgment entered at a special term, dismissing the complaint.</p> <p>The plaintiff is the owner of a saw mill, and the defendants own a grist mill. Both are supplied with, water from the same pond and through the same race. The plaintiff’s saw mill is located upon the race above the defendants’ grist mill; hence, all the water used by the defendants must pass the plaintiff’s saw mill. Both mills, and the whole of the water power, were originally owned by the same individual, Ezra Cuykendall. On the 14th of October, 1839, Cuykendall conveyed the grist mill to Mosher. That deed contained the following clause: “The said parties of the first part always reserving to themselves, their heirs and assigns, the surplus water over and above what shall be necessary for the propelling two run of •stone and other necessary machinery in the grist mill.” ' Also, the following clause: “ Also, the party of the second part, his heirs and assigns, to have the privilege of using, maintaining, and keeping in repair all that part of the raceway leading from the above described premises to the mill dam, and the privilege of using, maintaining, and keeping in repair the said mill dam, and raising the said mill dam so high as shall be necessary, and to flow water on the lands above said mill dam, so much as is contained in a grant made by Wilhelmus Cuykendall to the said Ezra Cuykendall, bearing date the 7th day of June, 1833.” Also the following: “ The said party of the second part to keep always, and at all times hereafter, the aforesaid dam and raceway in good repair, and of sufficient height to secure the water as high as it has heretofore been usually kept, inevitable accidents excepted.” The defendants hold the Mosher title. Previous to August 14, 1866, disputes had arisen between these parties in' regard to the use of the said water power by the respective parties, each claiming that the other had so used said water power as to deprive the other of the use of his proportion thereof, and to the injury of the other. Also in regard to the duties of the respective parties in keeping the dam and raceway in repair, and in keeping the raceway of sufficient capacity to allow sufficient water to flow therein for the use of both parties, and also in regard to the matters relating to said water power and to the use and enjoyment thereof. In order to settle all of said disputes, and to ascertain, determine, and settle upon the rights and duties of the several parties, and as between and towards each other, in regard to said water power, and the keeping in repair, cleaning out, and, if necessary, enlarging the capacity of said raceway, and in regard to all matters in any wise relating to said water power and said dam, and said raceway, as well as to what has heretofore taken place, as to what now is, and as to what shall hereafter be, the rights, privileges, and duties of the parties in regard thereto, the matter was submitted to Robert Howland, as sole arbitrator, who, among other things, was required to pass upon “the duties of the respective parties in regard to the further use of the said water power; the keeping in repair of said dam and said raceway; of enlarging said raceway, if necessary, and by whom the same shall be done.” And in regard to every other matter or thing submitted, and to determine what costs and expenses of the proceedings, if any, should be paid by either party to the other. The said arbitrator proceeded to examine and view the premises, and to hear the testimony of the parties and of many other witnesses, and upon several sittings heard all the proofs and testimony, and after the whole had been-submitted to him, and he had examined the said premises and seen the stream, the dam, reservoirs, raceway, and mills of both parties, and the condition and situation thereof, on or about the 1st day of February, 1867, he duly made and published his award and delivered a copy thereof to each of the parties.</p> <p>This action is brought to set aside and vacate that award.</p> <p>The material facts are stated in the opinion of the court.</p>

<p>nnHIS ease comes up for a second review, (see 46 Barb 272,) on a motion by the plaintiffs for a new trial on exceptions ordered to be heard in the first instance at general term.</p> <p>The action was brought to recover surplus moneys on a statutory foreclosure of a mortgage given by the plaintiffs to the defenandant on the 31st day of January, 1860, on premises in Oneonta, B*. Y. for $800. The sale took place on the 10th day of May, 1862, when the premises were bid off by the defendant for $2300, leaving a surplus of $1379.11. The defendant seeks to retain the moneys by virtue of a mortgage given by the plaintiffs to the defendant, July 5, 1861, on the same premises. The plaintiffs, by way of reply, claim that the latter mortgage was usurious because a portion of the consideration thereof was a bond and another mortgage given to the defendant by the plaintiff Elizabeth. That on and prior to the 22d day of Bovember, 1858, all the parties were residents of Oneonta, m this state, where the plaintiff*, Elizabeth, made an agreement with the defendant, by the terms of which he was to loan her $900, for which she was to give him a bonus of $100; that for the payment of the $1000 she was to give him her bond for $1000, and interest, and a mortgage upon certain lands in Grant county, Wisconsin, That the defendant, at Oneonta, paid her $1000, when she gave him back $100, and delivered him her bond and the mortgage agreed upon, neither of them specifying any place of payment. -</p> <p>It appeared on the trial that the legal rate of interest in Wisconsin, in the absence of a special agreement between the parties, is seven per cent, but that twelve per cent may be reserved by special agreement. That where more than twelve per cent is reserved, the excess over twelve per cent, only, is forfeited, and the agreement is valid and may be enforced, for the principal and all interest not exceeding twelve per cent.</p> <p>The court directed a verdict for the defendant, on the ground that the contract was governed by the laws of Wisconsin and was not usurious.</p>

<p>THIS is an appeal by the defendants from a judgment rendered upon the report of a referee, in favor of the plaintiff, for $586.41, on the .10th day of July, 1866. The facts appear in the following opinion:</p>

THIS action was brought by the plaintiff to recover the value of a quantity of quarried stone, left by him upon the bank of the Erie canal, and taken from thence by the defendant.

<p>Under the act of congress requiring stamps upon written agreements, &c. approved June 30, 1864, the invalidity of an instrument not stamped, as well as the forfeiture imposed, is made to depend upon the existence of the intent to evade the act.</p> <p>That the parties to an agreement are aware of the requirement of the statute is to be presumed; and their omission to obey it must, in the absence of any explanation, be deemed willful and with intent to evade its requirements.</p> <p>The act of omitting a revenue stamp is unlawful and injurious to the government, and must be deemed, presumptively, so intended. It comes within the class of cases in which the proof of justification or excuse lies with the party transgressing; and on failure thereof, the law implies a criminal intent.</p> <p>The plaintiff agreed to keep for the defendant, a sow and six pigs, from the 25th of May, to the 1st of September, 1865, for which he was to be paid two pigs and §5. The plaintiff, after having kept the animals some time, asked the defendant which of the pigs he should take. The defendant said there was no choice except, &c. and that the plaintiff might take which he had a mind to. Three or four weeks after this, the plaintiff, without notice to the defendant, selected two of the pigs and put them by themselves ; and the defendant afterwards took them away without the plaintiff’s consent. Meld that the plaintiff had no right of action against the defendant for the taking of the two pigs; as he could not, under the agreement, claim pay for the keeping of the sow and pigs, until the term for which they were to be kept had expired, and the time for a choice of pigs had not arrived, when the action was brought. And that there was no such setting apart of those two pigs for the plaintiff, as amounted to a making of them over, as so much payment in advance.</p>

THIS action was tried at the Ghemung circuit, without a jury, in September, 1859. The plaintiff recovered a judgment against the defendant for $272.27 damages, and $46.85 costs, amounting in all to $319.12. The defendant appealed from the judgment to the general term of this court.

THE plaintiffs were nonsuited at the Tioga circuit in March, 1665, and after judgment was entered against them for costs, they appealed to the general term of this court.

THIS action was originally brought in a justice’s court, in the county of Allegany, and upon the trial before the justice the plaintiff recovered a judgment exceeding the sum of fifty dollars. The defendant appealed to the county court, where a new trial was had, and the plaintiff was nonsuited.

THIS was an action in equity, brought to restrain the defendant from the further exercise of certain exceptions and reservations contained in a deed from the defendant to one Heminover, under whom the plaintiffs claim; for a construction of those exceptions and reservations; and for a decree declaring them canceled and extinguished.

The action was commenced by attachment, before the justice, and a judgment was rendered for the plaintiff on the 19th of January, 1852. The process was not personally served, and the defendant did not appear. The notice of appeal was not served by the defendant until July 17, 1856, and the justice made and filed his return thereto in August of the same year.

<p>Where it is claimed that an ordér to show cause is invalid, because not shown to have been made at a regularly adjourned special term, it will not be presumed that it was made at a term irregularly held.</p> <p>When a court has been regularly convened, it continues open till actually adjourned. An order for its continuance is not essential; and an order made by the court that it shall so continue need not be entered with the clerk. If necessary to be entered, it is the duty of the clerk to enter it; or if accidentally omitted, it may be entered by him mncpro tune, and would even be ordered to be entered on appeal, to sustain proceedings had under, it otherwise regular.</p> <p>It is the clerk’s duty to enter orders of the court, -without any special directions to that effect; and his delay or omission to make actual and speedy entry of orders in the minutes will not be allowed to prejudice the substantial rights of parties.</p> <p>An order for a bank to show cause why its business should not be closed, and a receiver appointed, is properly served upon its vice president; especially where it appears that he is also a director.</p> <p>Where two receivers of an insgjyent bank were appointed, on the same day, by different justices, both of which receivers claimed the assets of the bank, and one was in actual possession thereof; Held that it being a question of legal priority which the court was bound to settle, it would inquire into the fractions of the day on which the two receivers were appointed.</p> <p>The mere preparation and verification of the papers on applications for the appointment of receivers cannot determine the question of priority.</p> <p>Where two applications were made by different parties, on the same day, before different justices and in different districts, for the appointment of a receiver of a bank; Held that the party who obtained the first judicial action; the first service of papers; the first granting of the order for the appointment of a receiver; and the first perfecting of the appointment, by the execution, approval and filing of the required bond,- took precedence of the o*ther party, whose receiver merely first took actual possession of the assets of the bank.</p> <p>The provisions of the Revised Statutes, entitled, “ Of proceedings against corporations, in equity,” (2 S. S. 461,) are not repealed or abolished by the act of 1849, “ to enforce the responsibility of stockholders in certain banking corporations,” &e. (Zatos of 1849, chap. 226.)</p> <p>Hence, proceedings may still be instituted, under the Revised Statutes, by' the people, through their attorney-general, for the dissolution of a moneyed corporation, and the appointment of a receiver to wind up its affairs. This valuable right was not intended to be in any wise impaired by the act of 1849. So far as this question is concerned, the statutes do not necessarily conflict.</p> <p>Where two receivers are appointed, of the same bank, under distinct and independent proceedings, and by the terms of their respective appointments each has entire control of all the assets of the bank, they cannot with propriety both act; the title of the one is necessarily exclusive of that of the other, and the question of priority must be determined as a legal right.</p>

APPEAL by the defendant Lown, from an order of the county judge of ¡Rensselaer county, appointing a receiver in proceedings supplementary to execution.

ACTION to recover damages for a breach of warranty in the sale of a horse. It was brought before a justice of the peace in Jefferson county.

MOTION by the plaintiffs to set aside a judgment for costs in this case, entered in favor of the defendants, and to award costs to the plaintiffs, upon the report of a referee therein.

ACTIOS to recover dower in the premises described in the complaint, and damages for withholding the same. It was admitted that Sidney Marble, the plaintiff’s husband, was seised of said lands during coverture, and that she demanded her dower, before the commencement of this action.

The plaintiff commenced an action in a justice’s court, against the defendant, by a short summons, which was personally served. The defendant did not appear before the justice, and judgment was rendered in favor of the plaintiff, and the defendant appealed to the county court.

<p>APPEAL by the plaintiffs from an order made at a special term denying a motion for a retaxation of costs.</p>

<p>MOTION by the plaintiff, by way of appeal from an adjustment of costs in this action, by the clerk of Chautauqua county. The action was brought, originally, in a justice’s court. The plaintiff alleged, in his complaint, that the defendant wrongfully and unlawfully broke and entered the plaintiff’s close, in the town of Gerry, in the county of Chautauqua, on or about the months of May, June, July, August and September, in the year 1862; also, in the months of April, &c., 1863, and so as to 1864, 1865 and 1866; and the defendant, during each and all of the said months and years, being wrongfully and unlawfully upon the premises of the said plaintiff, in the town of Gerry, in the county of Chautauqua, did then and there, by himself, his agents and servants, with teams, horses, oxen, wagons, plows and scrapers,- wrongfully and unlawfully excavate the said premises, and did then aind there wrongfully and unlawfully cut timber of the plaintiff, upon his premises aforesaid, and destroy crops then and there growing, pull down and destroy fences of| the plaintiff, and build bridges, to the great injury and damage of the plaintiff, &c.</p> <p>The defendant, by his answer, first, denied each and every allegation in the complaint. For a second answer, he admitted that at divers times claimed in the complaint, he had been upon the ground and along a certain locality in said town, known as the plank road, and had done various work therein, in repairing the same and bridges thereon; that such -acts and labor were such only as were necessary and proper in repairing such road and bridges, in obtaining bridge timber, and other articles necessary for such purpose, and “ which are the acts complained of in said complaint; that at the times aforesaid said locality was a public highway, used and occupied by the public as such, and at such times of said alleged wrongs and acts upon, in and on said locality and premises, the said defendant was acting pursuant to the orders and directions of the commissioners and overseers of highways of said town, as he of right might do; and all he did there was in pursuance of such authority and directions, in repairing and fixing such road.”</p> <p>There was a further answer, that prior to the acts set forth in the second answer, the Fredonia and Sinclairville Plank Road Company owned the locality, and had full right and authority to use the same; that such company had abandoned said locality, and the same reverted to the public, and belonged to the town of Gerry, for the purposes of a highway, and was worked and improved as such; and that all acts done prior to such abandonment were pursuant to the authority and direction of such corporation.</p> <p>There was another answer, that after the commission of said alleged wrongs and trespasses, and each of them, the damages in consequence thereof were properly and duly appraised by proper authority, and said plaintiff duly notified thereof, and such damages were duly tendered and paid to the plaintiff, and were brought into court for his use and benefit.</p> <p>There was a further answer, that the acts done by the defendant upon and about said premises, as aforesaid, were fully ratified, and confirmed and authorized by virtue of an act of the legislature, passed April 13, 1866.</p> <p>The defendant demanded judgment for costs of suit. He gave the undertaking required by the Code, and the justice countersigned the pleadings ’and dismissed the action. •</p> <p>The plaintiff then brought this action. It was tried by the court, and the court decided that all the alleged trespasses committed within the limits of what was known as the plank road, and then the highway, after the plank road ceased to occupy, were justifiable. The plaintiff, on the trial,, proved certain trespasses committed in his field, outside of the bounds of the highway. The court overruled the defense of a tender of the damages-, and directed a judgment for damages for the trespasses outside of the highway, for three dollars. The judge before whom the trial was had, at the instance of the defendant’s attorney, certified that on the trial title to real estate was in issue so far as the line of the “old plank road was concerned;” and as to the alleged trespasses thereon, the court reported in favor of the defendant. That as to the alleged trespasses outside of the line of the road, title to real estate did not come in question. Each party claimed a full bill of costs. The clerk taxed the defendant’s bill, and refused to tax the plaintiff’s bill.</p>

<p>The plaintiff stopped at the defendant’s tavern with his two horses, which he had put in the barn and fed, and took dinner himself. Having paid his bill, he requested the defendant to get his horses. The latter told him to go on and be hitching up, and he (the defendant) would be ■ out in a few minutes. The plaintiff went to the barn, put the head-stalls on the horses, and while getting the team out, the defendant arrived. Previously two men arrived at the inn, and placed their horse (a stallion) in a stall between those occupied by the plaintiff’s horses and the outer door. The plaintiff led one of his horses out of the door, and the other followed on, as it was accustomed to do, and when passing the stall where the stallion stood, received a kick from him which broke its leg, resulting in its death. Held that the defendant’s liability as an innkeeper was not at an end, • when the injury occurred, the horses being still on his premises, and in his barn; that the plaintiff was only doing for the defendant, and with his assent, what it was his duty to do himself; and that unless there was some improper conduct on the part of the plaintiff, which caused the injury, the defendant was liable to the same extent as .though he, instead of the plaintiff, had been handling the horses at the time.</p>

<p>DEMURRER to complaint. The action was brought'to obtain a decree declaring void a marriage contract entered into between the plaintiff and defendant on the 28th of June, 186Í. The defendant was married to one Pomeroy, in the state of Massachusetts, in 1848. It is charged that in 1855 Pomeroy left Massachusetts, went to Chicago, and commenced a suit against his wife Abby. That the latter, by collusion with her husband, aided him in fraudulently obtaining a divorce in Illinois, &e.</p> <p>The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.</p>

APPEAL by Bath an Gr. Akin from an order made at a special term, confirming the report of commissioners awarding to him damages for land taken by the railroad company for the purpose of laying its track.

<p>Since the decision of the Court of Appeals in the case of the Metropolitan Bank v. Van Dyck, (27 N. Y. Rep. 400,) the constitutionality of the legal tender act is not open for discussion, in this state. Per Mollin, J.</p> <p>It is also the settled law of the state that in actions for the recovery of debts contracted before the passage of the legal tender act, the plaintiff can only recover the sum agreed to be paid, without any allowance for the difference in value between gold and legal tenders; notwithstanding the debtor may have agreed to pay it in gold or silver coin.</p> <p>The sum named in a bill or other contract is, in the absence of any provision to the contrary, presumptively payable in whatever is, at the time, a legal tender in payment of debts; but when the parties designate some other currency which is not illegal, it is the right of the creditor to have awarded to him such measure of damages as will constitute payment in the currency intended; and it is the duty of the court to award it.</p> <p>Upon a bill of exchange “ payable in United States gold coin,” the holder, in case of non-payment, is entitled to judgment for an amount equal to the value of the gold, at the time of the trial, in legal tender notes.</p> <p>There are two standards of value recognized by law—the one gold and silver, the other paper. Either is a legal tender for a debt; and a contract which calls for payment in gold calls for payment in a currency recognized by law; and there is nothing, in law or in reason, which forbids the parties making such an agreement; and when it is .manifest that it was the intention of the parties that payment should be made in coin instead of paper, it is the duty of the courts to carry such intention into effect.</p>

<p>The defendants, on the transfer of a customer’s note to the plaintiff, agreed to indorse it and waive demand and notice, and thereupon made the following indorement thereon, signed by them, in their firm name: “I waive demand of protest.” Held that the language of the indorsement might he construed as implying an intention to waive both demand and notice.</p> <p>Also held, that if the language of the indorsement was too indefinite and uncertain to express a legal contract, the plaintiff might resort to parol evidence to establish one, not inconsistent with the written indorsement.</p>

Motions uo remove causes to the United States Circuit Court. Two actions were brought, one by James Fisk, jr., William Belden and William B. Bradford; and one by Rufus Hatch; against the Chicago, Rock Island and Pacific Railroad Company, and against John F. Tracy, and several other individuals, composing the directors of said company.

<p>In order to confer jurisdiction on the court, under the section of the Revised Statutes providing that if an executor or administrator doubt the justice of any claim presented to him, he may enter into an agreement in writing, with the claimant, to refer the matter to referees, to be approved by the surrogate, and that upon filing such agreement and approval with the clerk of the Supreme Court, a rule shall be entered by the clerk, referring the matter to the persons so selected, it is not necessary that there should be a literal compliance with its terms ; a substantial compliance is enough.</p> <p>To give jurisdiction, there must be: 1. An agreement in wilting to refer; 2. The persons agreed on as referees must be approved by the surrogate; 3. The agreement and approval must be filed; 4. A rule referring the claim to the persons indicated must be entered by the clerk of the Supreme Court.</p> <p>A surrogate made and signed an order in writing, entitled in his court, reciting that the claim of the plaintiff against the estate of C. had been presented to the administratrix and rejected, and the parties had agreed to a reference; and directing that three persons named be and they were thereby appointed referees to hear and determine said claim of the plaintiff; and that such order be entered with the clerk of the county. At the foot of this order was the following consent, signed by the attorneys of the respective parties: “We assent to the above order, and consent that the same be entered.” The order, with the consent attached, was then filed by the county clerk and a memorandum of the filing indorsed thereon.</p> <p>Held, 1. That the order and consent, taken together, were a sufficient agreement in writing to refer.</p> <p>2. That there was sufficient evidence that the surrogate approved of the persons named as referees.</p> <p>3. That the statutory requirement as to the filing of an agreement to refer, was complied with.</p> <p>4. That if the order referring the claim to the persons named as referees was not entered by the clerk, it could be done mmcpro tune, and should be so entered, to prevent a failure of jurisdiction.</p> <p>6. That even assuming that the papers were not in conformity to the statute, still the referees acquired jurisdiction to hear, try and determine the matters in controversy between the parties; and that their report was legal and ninding on the parties, until it was set aside by the court in some proceeding properly instituted for that purpose.</p> <p>6. That the Supreme Court had jurisdiction over the claims which were submitted to the referees; in other words, that it had jurisdiction of the subject matter. That by the voluntary consent and appearance of the parties jurisdiction of their persons was obtained; and whenever jurisdiction over both is acquired, the proceedings thereafter are valid, however irregular they ' may be, 7. That the appearance before the referees, the trial of the claim presented, and report thereon, were all that were necessary to justify the entry of a judgment; that all the preliminary steps might be supplied numero tune.</p>

mHIS was an action to recover of the defendant damages X for its refusal to permit the transfer upon its books of eighty-five shares of its capital stock, which stood on its books in the name of one Henry Clay Barnes, and of which the plaintiff had become owner. It was either proved or admitted on the trial that a banking corporation known as the Salt Springs Bank was created in the year 1852 under the general banking law of this state.

<p>Motions for receiver ; and counter-motions to dissolve injunctions.</p> <p>Four actions were brought against the Chicago, Rock Island & Pacific Railroad Company, and others ; one by James Fisk, Jr., and others ; the second, by Hatch; the third, by Fanshawe; and the fourth, by Belden.</p> <p>The plaintiffs in these several cases sued as holders of original shares of the stock of the Chicago, Rock Island & Pacific Railroad Company, a corporation created by the States of Illinois and Iowa. The complaints alleged that a new issue of 49,000 shares of stock was illegal and void, and demanded injunctions against the use of the proceeds of that issue, and the appointment of a receiver of such proceeds.</p> <p>Motions were madé "by the plaintiffs for the appoinment of such receiver; and motions were made "by the defendants to dissolve the pending injunctions against the use of the proceeds. All the motions came on to "be heard together.</p>

APPEAL by the defendant from' an order denying a motion to set aside an attachment and order for publication. The defendant was a non-resident of this state, and a resident of Michigan. The summons, and a warrant of attachment against the property of the defendant, were placed in the hands of the sheriff of Monroe county, on the 8th of October, 1866, and on the same day the sheriff, by virtue of such warrant, seized the defendant’s property.

A CTIOU brought by cestuis que trust, against their trustee A and others. The complaint was personally served, and an answer having been put in, the plaintiffs demurred thereto; whereupon the defendants served an amended answer. Upon the issue thus joined, the cause was, by stipulation, referred to a referee to hear and determine. On the trial before the referee, the defendants’- moved for leave to amend their answer by adding a count setting up ■ the statute of limitations.

The case shows that on the' eleventh day of October, 1852, one Luke Chapin executed his bond and mortgage to the plaintiff, to secure the payment of $2450, in twenty equal annual installments, with annual interest, being the purchase price of certain lands that day sold by the plaintiff to said Chapin; that the defendant purchased the lands covered by the mortgage, of the said Chapin, in 1855, and assumed to pay the said bond and mortgage; that the defendant made several…

B. F. Young, agent in the county of Steuben for William, Earl of Craven, Alexander Oswald and Edmund B. Estcourt, non-residents of the state, made out and delivered to the defendant, as treasurer of the county of Steuben, a sworn statement of the debts due to them in twenty-five different towns in Steuben county, as required by section 2 of the Laws of 1851, page 722.

On the 15th of March, fifteen persons, eligible to the office of supervisor of the town of Westford, signed a’ call for a special town meeting of said town “ for the purpose of paying bounties to volunteers in the military or naval service of the United States during the existence of the war now carried on, and for the purpose of paying the incidental expenses of such volunteering, and of raising such money.” This call was filed in the clerk’s office March 16, 1864.

APPEALS by the several relators from, orders made at a special term denying their respective applications for writs of peremptory mandamus. The relators claimed that they were illegally assessed in the years 1861, 1862, 1863 and 1864, on their capital stocks, which were invested in bonds or stocks of the United States, and exempted from taxation for state and municipal' purposes.

Motions for a receiver; and counter-motions to dissolve injunctions. Three actions were brought against the Chicago, Rock Island and Pacific Railroad Company and others, by O’Brien, Musgrave and Grates, respectively. The plaintiffs in these cases sued as holders of the original stock of the Chicago, Rock Island and Pacific Railroad Company, a corporation formed and existing under the laws of Illinois and Iowa.

APPEAL by the plaintiff from á judgment of the county court of Wyoming county, reversing a judgment recovered by the plaintiff before-a justice of the peace.

MOTION by the plaintiff for a new trial, upon a verdict for the defendant under the direction of the judge who tried the cause. On the 5th day of November, 1866, Miller & Humble leased to one Barton E. Tifft, a dairy farm in the town of Pinckney, Lewis county, with forty cows and some other personal property, for the term of two years from December 1, 1866, at the yearly rent of $750.

<p>Appeal from a judgment in favor of the plaintiff on the report of a referee.</p> <p>The action was brought to recover damages alleged to have been sustained by the breach of warranty by the defendants, and sale by them to the plaintiff, of a judgment which they held against Dorans, Gfillett & Co. The defendants were copartners doing business in the city of New York under the firm name of James Buchan & Co. On the 2nd of Sept., 1861, they recovered a judgment for $1,038.46 against Erasmus D. Doran, James E. Doran, Allen H. Gillett, and Homer W. Wooster, composing the firm of Dorans, Gillett & Co., all of Syracuse, and the judgment was on that day docketed in the clerk’s office of Onondaga county. On the 19th of March, 1863, and after the dissolution of the firm of Dorans, Gillett & Co., Gillett, one of the copartners, obtained from Buchan & Co. a release from his individual liability on the judgmént, under the “ Act for the relief of partners and joint debtors,” passed April 18, 1838 (Laws of 1838, ch. 257), for which release he paid ten per cent, of the whole amount of the judgment; and no more was ever paid to Buchan & Co. thereon. At the same time of the rendition of this judgment, eleven other judgments were rendered and docketed against the same defendants in favor of divers plaintiffs, for the sum, in all,including the said judgment, of $7,366.52, and were all equal liens upon the real estate of said firm of Dorans, Gillett & Co., and upon the individual real estate of each of such defendants.</p> <p>The release to Gillett was executed by Stephen Rich, in the name of the firm of James Buchan & Co., and was filed in the clerk’s office of Onondaga county, at Syracuse, October 7th, 1865, but was entered in the docket of judgments under the letter G only. Mr. Rich dissolved his connection with the firm on the 28th of January, 1865, leaving Buchan in possession of the business and assets. And before that time, the firm, considering the judgment which they so held worth little, if anything, charged it over to profit and loss. Previous to August, 1865, James E. Doran, one of the said judgment debtors, died, and in that month Anna Doran, the mother of the two defendants Doran, died intestate, leaving real es-take worth $2,800, and leaving three living children, and the heirs of a fourth, her heirs at law.</p> <p>On the 15th of February, 1866, John 0. Bennett, of Syracuse, the husband of the plaintiff, who is the sister ■ of the two Dorans, made an offer to James Bnchan & Co., "by letter, to pay $100 for an assignment of the judgment, describing it as a judgment against Erasmus E. Doran, in which he said, “I will give you $100 for the judgment. If you desire to accept my proposition, execute an assignment of the judgment in question to H. Amelia Bennett, and forward the same to me "by express, C. O. D.” This letter was answered on the part of Mr. Buchan, with a request to Mr. Bennett to procure and send to him a copy of the docket of the judgment,, and Bennett went to the clerk’s office and procured a copy, and sent it to Buchan by mail. "The copy sent to Buchan was taken from the docket under the letter “ D,” and did not show that Gillett had been released from the judgment. Buchan thereupon executed the assignment to the plaintiff, in the firm name of James Buchan & Co., and sent it to Mr. Bennett, and received the payment of the $100 therefor. The assignment contained a covenant, “ that there is now due on the said judgment the sum of ten hundred and thirty-eight dollars and forty-six cents, and interest from Sept. 2, 1861, and that they will not collect or receive the same, nor any part thereof, nor release or discharge the said judgment.” The referee found that the release of the judgment to Grillett was made in good faith, and that the assignment to the plaintiff was made in good faith, and without any intent to defraud any one, and without-thinking of the release previously made to Grillett, and that the same was executed by Buchan without any authority therefor from Rich, and was never assented to by him afterwards.</p> <p>The referee also found as matter of fact, that the plaintiff, when she took the title to the judgment by assignment, was not aware that Grillett had been released.</p> <p>Several other facts were found by the referee, but the only ones material to the questions here' were, that Erasmus D. Doran was not solvent so that the judgment could be collected of him, but that Grillett was of sufficient ability, so that it could have been collected of him but for the release. The referee reported in favor of the plaintiff, for • the full amount of the judgment and interest, less the sum of $102.16, this latter sum being the amount, with inter- , est, of what the plaintiff, after taking the assignment, had succeeded in collecting by an execution, from E. D. Do-ran,—leaving a balance of principal and interest of $1,423.73, for which he ordered judgment in favor of the plaintiff. Judgment was entered thereon against Buchan with costs, the complaint being dismissed as to Rich, and Buchan appealed.</p>

The action was brought, in October, 1864, to recover damages for an alleged assault and battery, committed by the defendant, Bridget Tinen. Issue was joined, and a trial had in March, 1866, and a verdict rendered in favor of the plaintiff .for $50 damages, for which sum, with costs, judgment was entered on the 1st day of March, 1866.

THIS was an action to recover the expenses incurred oy the plaintiff’s testator, John Gr. Warren, deceased, pursuant to an alleged submission to arbitration, which the defendánts revoked before the cause was finally submitted to the alleged arbitrators. The action was tried before Justice Balcom without a jury, at the Chemung circuit in September, 1856, when judgment was directed in favor of the plaintiff for $173.94 damages, besides costs.

ÁOTIOF to recover the value of a quantity of hay and the value of two cows, which the complaint alleged the defendant wrongfully seized and converted, on or about the. 7th day of January, 1867. Defense, that Clark Rogers recovered a judgment on the 15th day of July, 1859, in this court, against Patsey Garrity, which was duly docketed in Cortland county the day it was recovered.

THIS action was brought before a justice of the peace in the county of Madison, where the plaintiffs complained that on or about September 3d, 1866, they bought of the defendants a certain number of cows, which the defendants represented and warranted to be with calf and to calve in good season, and in consequence of such representations and warranty the plaintiffs were induced to buy, and did buy said cows, and paid therefor the sum of $1685, whereas said cows, or a number…

THIS action was brought to obtain a judicial construction of the last will and testament of William Cole, .late of Richfield, Otsego county, deceased. It was referred to a referee to hear and determine. Upon his decision a judgment was entered, in the office of the clerk of Otsego county, in February, 1868. From which judgment the defendants, Welcome Cole, executor, William- Cole and Ada Cole, appealed to the general term of this court.

THE defendant, who was a married woman, confessed a judgment in favor of the plaintiff, as if she were a feme sole. The judgment being entered in due form, she moved, at a special term, to set it aside. The court set aside the judgment, on the ground that a married woman could not confess a valid judgment; and the plaintiff appealed to the general term.

APPEAL by the defendant from a judgment entered upon the report of a referee. The action was brought by the plaintiff to obtain a limited divorce. The amended complaint alleged acts of the defendant amounting to cruel and inhuman treatment of the plaintiff; also such acts as rendered it unsafe and improper for her to cohabit with him; also abandonment and refusal to support the plaintiff, as the three grounds for such a judgment.

rnHIS action was brought to recover damages for an JL injury sustained by the plaintiff in consequence of alleged misconduct of the defendants. The plaintiff, together with his wife, and other members of his family, on the 18th of February, 1863, about seven o’clock in the evening, crossed from Brooklyn to Hew York on one of the defendants’ ferry boats.

APPEAL by the defendant from an order made at a special term, overruling a demurrer to the complaint. The plaintiff alleged in his complaint, first: That under and by virtue of a law of the state of South Carolina, enacted and of force on a date previous to the fifth day of September, 1853, and yet in force, there exists a corporation doing business in the town of Chester, in said named state, and known and incorporated as the Bank of Chester.

This action was brought on a judgment recovered by the plaintiffs against the defendant, in the sixth district court of New Orleans, Louisiana, on the 19th December, 1863, for $4,230.10, with interest and costs of suit; which recovery was by way of counter-claim, or, as it is styled in the civil code of Lousiana, of “ demand in reconvention” ; the recovery being in favor of the defendants in that action (the plaintiffs in this), and against the defendant in this action, who…

The defendants, the corporation of ¡New York, sold upwards of 500 lots in April, 1852, at public auction, among these the lots involved in this suit.' These lots, twelve in number, were bought by King & Brush, in the name of Brush.

THIS is a controversy submitted without action, pursuant to the provisions of section 372 of the Code of Procedure. James M. Brewer, late of the city of Troy, died on the 5th*day of January, 1869, leaving him surviving his widow, the defendant, Emily II. Brewer, his son, Seabury Doane Brewer, and his daughter, Florence Kipp Brewer. He left real and personal property to the amount of about $15,000. He also left a will, of which the following is a copy: ‘“Troy, June 23, 1865.