Volume 53 — New York Reports

Term of the Supreme Court in the fourth judicial department, reversing an order of Special Term directing this action, to be revived and continued upon supplemental complaint in the name of Henry B. Hewitt, administrator, with the will annexed, of plaintiff, deceased. (Reported below, 64 Barb., 506.) This was a suit in equity commenced before the Code, to wit, June 28, 1848.

<p>A railroad company has the right to drain the surface water from its lands through ditches dug therein into a stream which is the natural outlet, although the quantity of water in the stream is thereby increased in time of high water and diminished at other times to the damage of a riparian proprietor below.</p>

The action was for malicious prosecution in charging plaintiff with stealing or attempting to steal a diamond pin, and for causing his arrest and imprisonment under such a charge. The parties, at the time of the transaction out of which the cause of action arose, were on a steamboat returning from an excursion to Coney Island.

(Reported below, 6 Lans., 469; 64 id., 102.) .This action was for the alleged conversion of certificates for 400 shares of Atlantic Mail Steamship Company’s stock. The defendant was a gold and stock broker in the city of New York. The stock in question was deposited on the 21st December, 1866, with defendant by plaintiff' as security against any loss which the former might sustain on purchases and sales of gold, to he made on account of the latter.

This action was brought to recover damages for an alleged unlawful ejection of plaintiff from one of defendant’s cars. The facts are sufficiently stated in the opinion. The court erred in charging, that plaintiff could recover exemplary damages for his “ pain and anguish of body and mind.” (Curtis v. Roch., etc., R. R. Co., 18 N. Y., 542.) Plaintiff was not entitled to recover exemplary damages for the act of defendant’s servant. (The Amiable Nancy, 3 Wheat., 261; Phila.

This action was brought against defendant, as sheriff of Montgomery county, for an alleged escape on the 4th June, 1866. Plaintiff recovered judgment against one Peter W. Wagner in the Supreme Court. About the 12th April, 1869, said Wagner was arrested by defendant and committed to jail upon an execution against the person, issued upon said judgment. He gave bail for the liberty of the jail.

This was an action brought to restrain defendant from selling certain premises situate in the city of Rochester belonging to plaintiff. In the year 1852, one Urbane C. Edgerton was the owner in fee of certain real estate, situate in the city of Rochester, known as the Sophia street property.

This action was for an injunction restraining defendant from digging upon two strips of land, formerly highways extending through lands of the defendant. Plaintiff claimed to own these strips of land in fee.

(Beported below, 6 Bans., 116.) This was an action to recover for the alleged unlawful taking and conversion of $4,006.80 belonging to plaintiff. The plaintiff is a national bank located and doing business in the city of Elmira, with a capital stock of $100,000 invested in United States government bonds. In the year 1868 the assessors of said city assessed the bank $50,000 on real estate and $95,000 on personal property. The latter was the capital stock so invested.

<p>As the legislature may delegate the exercise of the right of eminent domain to municipalities, to boards of officers and to public agents, the necessity of an appropriation of lands by those upon whom this right is conferred cannot be inquired into by the courts. If the use to which the lands are to be put is public, the legislature, or the instrumentality which it employs, is the sole judge of the necessity, unless there is a provision otherwise in the enactment.</p> <p>Under the provision of the “ act in relation to sewerage and drainage in the city of Brooklyn ” (§ 8, chap. 521, Laws of 1857), which authorizes the board of water and sewerage commissioners, in case they find it necessary to construct a sewer or drain through any part of a street not opened by law, to apply to the Supreme Court to appoint commissioners, etc., to open said street, the Supreme Court, upon such application, cannot inquire into or pass upon the question of the necessity of opening the street, further than it may be incidentally involved in the determination of the question whether it is for a public use.</p> <p>R. and S. R. R. Co. v. Davis, 43 N. Y., 137, distinguished.</p> <p>The phrases “to construct” and “be constructed,” as used in said section, are not confined to the mere act of building the sewers; they include the maintenance, preservation and protection, as well as the erection thereof.</p> <p>Where said commissioners had gone on and constructed a sewer through a portion of. a street not opened by law, and thereafter made an application under said section to open the same,—Held, that the power of the commissioners was not spent; that the authority to apply was based solely upon the finding by the commissioners of the necessity of the construction of the sewer, and that there was nothing in the act requiring the opening of the street before building the sewer; that for the purpose of maintaining and preserving the sewer it was as necessary that the municipality should have the lawful use of the street as for the purpose of building it, and that therefore the application was properly granted.</p>

This action was brought to recover damages for property of plaintiff alleged to have been destroyed by a mob in the city of Hew York.

<p>Appeal from judgment of the General Term of the Supreme Court affirming a judgment in favor of plaintiffs, entered upon the decision of the court at Special Term.</p> <p>This action was brought by plaintiffs, judgment creditors of defendant David Coope, to set aside a general assignment for the benefit of creditors, made by him to the other defendants. The court found the following facts, among others :</p> <p>That on the twenty-first day of October, 1857, the said defendant, David Coope, being insolvent and unable to pay his debts in full, made, executed and delivered a general assignment of his property, in trust for the payment of his debts, with preferences, to the defendants, Joseph W. Harper, T. Sullivan Thorne and Smith M. Coope, who was the son of the defendant David Coope; and thereupon on the same day the said assignees accepted the said assignment, and took possession of the assigned property thereunder. That simultaneously with the making of the said assignment, at the instance and request of the said assignor and the said Smith M. Coope, acting in concert, but without the knowledge of the other assignees, certain of the creditors of said David Coope, whose claims are provided for, as preferred' in the second class in said assignment, made and entered into certain agreements in writing with the said David Coope and Smith M. Coope, whereby they severally agreed to lend to said Smith M. Coope a certain sum described in each instance as the part and parcel of the sum due to' the creditors from David Coope, and empowered him to receive the same from the said David Coope or his assigns, upon his giving to the creditors his promissory note for the amount indorsed by the said David Coope, payable in five years from date, with lawful interest, and authorized and empowered the said David Coope and his assigns to pay to said Smith M. Coope the sum so loaned out of any moneys so due to the creditors, and to take his receipt and acquittance therefor. That said agreements were all prepared for execution by the said David Coope, and were made on the eve of the execution by him of his said assignment, and the amount of money therein agreed to be loaned by each of the said creditors was identical with the amount secured to him or her in the preferences of said assignment in the second class thereof. That the said agreements and the making of said assignment constituted in fact but one transaction ; that said agreements were made for the nominal consideration of one dollar, but in reality upon no consideration other than the preferences of the creditors making them respectively in the second class of said assignment, and were induced by a desire on the part of said creditors respectively to benefit said assignor, and that said assignment was made with intent to devote the property assigned to the payment of the debts of the assignor, in the manner thereby and by said agreements provided ; that said agreements were made with said Smith M. Coope pursuant to an arrangement with said assignor for the benefit of the latter, and for the better accomplishment of the objects thereof as aforesaid. That the use of the name of ■ Smith M. Coope in said several agreements was not in reality to benefit him, but that the arrangement and agreement was in fact and effect between the said creditors respectively and the said David Coope, with intent on the part of said David to reserve and retain for his own account, under the name of his son, the use, and benefit to that extent of the assigned estate, or the proceeds thereof, and that by means of the provision so to be made under the assignment, in connection with said creditor’s loans, to continue, under the name of his son, his business, and retain the good-will thereof after the assignment, and that said assignment was made, and the said Smith M. Coope selected and constituted one of the assignees therein, in pursuance of such intent on the part of said David.</p> <p>And, as conclusions of fact, from the facts hereinbefore stated, that said assignment was in fact made and executed with the intent on the part of said David Coope to hinder, delay and defraud his creditors.</p> <p>That an unexpired term of eight years of a lease of the store occupied by the assignor at the date of said assignment passed to the said assignees under the said assignment, which the said assignees afterwards sold and transferred to the plaintiffs, and that the assignees thereafter paid to the plaintiffs rent for the said premises while they continued to occupy the same and dispose of the assigned stock of goods; and that the plaintiffs also purchased of the said assignees a portion of said stock of goods, amounting to upward of four hundred dollars.</p> <p>That (except as such intent might be inferred, or was a conclusion of fact from the facts herein found) the said assignment was not in fact executed with intent on the part of the said David Coope to hinder, delay or defraud his creditors, and that the said assignees did not accept of said assignment with any fraudulent intent whatsoever.</p> <p>And he thereupon found, as matters of law, that the said assignment was made with intent to hinder, delay and defraud his creditors, and with a secret trust and reservation of benefit for the said assignor, in exclusion of some of his creditors, and that the same was fraudulent and void as against his creditors.</p> <p>That the plaintiffs were not precluded, by their dealings with the assignees subsequent to the date of the assignment, from insisting that the said assignment was void, and he directed judgment adjudging the said assignment to be fraudulent and void as aforesaid, and vacating and annulling the same. Judgment was entered accordingly.</p> <p>The agreement of certain creditors to make certain loans, as they were paid their debts under the assignment, did not reserve to the debtor any benefit or trust out of his property, and was not illegal. (Lee & Co.’s Bk. v. Talcott, 19 N. Y., 148; Spalding v. Strong, 37 id., 135; S. C., 38 id., 9; Hastings v. Belknap, 1 Den., 190; Powers v. Graydon, 10 Bosw., 630; Wilson v. Britton, 26 Barb., 562; Renard v. Graydon, 39 id., 548; Clarke v. White, 12 Pet., 162; Stewart v. Spencer, 1 Curtis, 161,163,165.) The formal findings of fact or law do not preclude a review here. (Pratt v. Foote, 5 Seld., 468; Draper v. Stouvenal, 38 N. Y., 219; Fellows v. Northrud, 39 id., 117; Mason v. Lord, 40 id., 476, 484; Putnam v. Hubbell, 42 id., 106; Beck v. Sheldon, 48 id., 369; 17 id., 461; 22 id., 451; 23 id., 364, 365; 37 id., 628; Townsend v. Stearns, 37 id., 209.) Plaintiffs having purchased from the trustees portions of the trust estate, are precluded from insisting that the assignment is void. (Van Hook v. Whitlock, 23 Wend., 43; Hone v. Henriques, 13 id., 243; Embury v. Conner, 3 Comst., 511; Palmer v. Smith, 6 Seld., 303; Rapalyee v. Stewart, 27 N. Y., 310; Rodermund v. Clark, 46 id., 354; Morris v. Rexford, 18 id., 552; Draper v. Stouvenel, 38 id., 221.)</p> <p>Taking the agreements and assignments as one entire transaction, it is fraudulent and void. (Mackie v. Cairns, 5 Cow., 548; Goodrich v. Downs, 6 Hill, 438; Strong v. Skinner, 4 Barb., 546; Sheldon v. Dodge, 4 Den., 217.) The assignment was void on. account of the benefit secured to the assignor. (Litchfield v. White, 7 N. Y., 438.) The purchase of the goods by plaintiffs at the auction sale does, not estop them from contesting the assignment. (Hone v. Henriques, 13 Wend., 240; Rapalyee v. Stewart, 27 N. Y., 310 ; Wills v. Munroe, cited in Babcock v. Dill, 43 Barb., 577.)</p>

This action was brought to recover damages for the loss of plaintiffs’ goods destroyed by fire on board of one of defendant’s ships, alleged in the complaint to have been occasioned through the “ mere negligence and carelessness of the defendant.” Defendant is a corporation running a line of propellers between Providence and New York, of which the steamship “ Oceanus,” belonging to it, was one.

<p>Where an estate for life is subject to be divested by the breach of a condition subsequent, a breach which forfeits the estate destroys the lien thereon of a judgment against the tenant for life.</p> <p>Plaintiff leased certain premises owned by him to H. for life. The lease contained the following clause: “The party of the second part (the lessee) covenants that he will use the premises as his residence, and that he will not sell or assign this lease, or lease out or sublet said premises without the written consent of plaintiff,” and then after other provisions as to payment of taxes, etc., by the lessee, the clause, “ and if he (the lessee) fail in the conditions of this lease the said M. (plaintiff) shall he at liberty to forfeit the lease." No rent was reserved, and there was no consideration for the lease save the covenants of the lessee, who was the father-in-law of plaintiff. G. had a judgment against H. at the time of the execution of the lease; H.. for the purpose of defrauding, his' creditors assigned the lease. In an action to recover possession defendant claimed title under a sale upon execution issued upon G.’s judgment. Held, that the “ covenants,” so called, were the contingencies or conditions intended by the parties upon which the right to forfeit the lease depended; that the transfer of the lease forfeited the estate and destroyed the lien of the judgment, and that therefore a direction of the , court to the jury to find a verdict for defendant was error.</p>

<p>Married women, to the extent and in the matters of business in which they are by law permitted to engage, owe the same duty to those with whom they deal, and may be bound in the same manner as if unmarried.</p> <p>Where they clothe others with apparent authority to act for and bind them, the apparent must be taken as the real authority, and they are estopped from disputing it, so far as others have been induced to act upon the faith of it..</p> <p>Defendant, a married woman, who had been carrying on business and purchasing goods on credit of plaintiffs, her husband acting as her agent in maldng the purchases and payments, transferred the business, to her husband, who subsequently carried it on at another place in the same city, continuing to purchase of plaintiffs, who had no notice or knowledge of the change. In an action to recover for such purchases,—Held, that plaintiffs had the right to presume that the business and the agency of the husband was continued until actual notice of change and revocation, and that suffering the plaintiffs to act upon this presumption defendant was estopped from alleging the contrary, and was liable.</p>

This action was brought by plaintiff, as trustee, etc., of Alfred Hubbell, against defendant, a former trustee, to compel him to account for the rents, profits and avails of certain real estate claimed to belong to the trust estate. On the 21st of December, 1848, said Hubbell and wife executed to defendant Medbury a mortgage upon certain premises, situate in the city of Eochester, for $1,000.

Stephen’s Church of Buffalo, together with all the rights and liberties, privileges, franchises and profits appertaining or belonging thereto, according to the command 'of the said' former writ of alternative mandamus.” (Reported below, 6 Bans., 172.) The facts stated in the alternative writ were, in substance, as follows : That the defendant was incorporated in April,-1853, under the act of 1813, providing for the incorporation of religious societies.

<p>If by a trick or artifice the owner of property is induced to part with the custody or naked possession for a special purpose to one who receives the property animo fwrandi, the owner still meaning to retain the right of property, the taking is larceny; but if the owner part not only with the possession, but the right of property also, the offence of the party obtaining them will not be larceny, but that of obtaining goods under false pretences.</p> <p>Plaintiff in error obtained from the wife of the complainant, M., a watch, chain, etc., and some money by falsely representing that M. had been arrested for a crime and had sent him to her for some money. He was to pawn the chattels and to give the money and ticket to M. He practiced the fraud with the felonious intent to appropriate the property to his own use, and he did so appropriate it. Held, that he was properly convicted of the crime of larceny.</p>

(Reported below, 62 Barb., 231.) This action was brought to recover damages for an alleged breach of contract for the sale of a quantity- of cheese.

(Reported below, 64 Barb., 435.) This action awas upon nine promissory notes made by defendant. The defence was that in proceedings under the bankrupt law defendant had been declared bankrupt and that plaintiff’s claims had been proved in said proceedings and a dividend received thereon.

The proceeding originated on an application hy the relator for a mandamus to compel Walker Parkhurst, the predecessor of the defendant, as supervisor of the town of Stockton, in the county of Chautauqua, to issue the bonds of that town, pursuant to the provisions of an act of the legislature of this State, entitled “An act to facilitate the construction of the Dunkirk, Warren and Pittsburgh Railroad, and to authorize towns in the county of Chautauqua to subscribe to the…

This action was brought to recover of the defendant, as administrator, etc., of Anna C. Minch, $2,500 and interest, as damages suffered by the plaintiff by reason of a conspiracy and fraudulent representations, whereby the plaintiff was induced to insure the life of the deceased, and to pay the loss after her death.

The action was brought to recover damages for an alleged nuisance. The prominent facts appear sufficiently in the opinion. Held: 9 E. L. & Eq., 104; 1 Hil. on Torts, 554; Chichester v. Lethridge, Willes’ R., 71-73; 3 Blk. Com., 219; Co. Litt., 56; Pierce v. Dart, 7 Cow., 609.) The stench from defendant’s tannery was a private nuisance per se. (3 Blk.

<p>It is the right of a party to a contract, in an action upon it, to pursue the real principals with whom he contracted; and the fact that some of them do not appear in, and that their interest is not disclosed by the contract, does not prevent him from showing that they were jointly interested therein.</p> <p>Where one party to an action, knowing the truth of a matter in controversy and having the evidence in his possession, omits to speak, every inference warranted by the evidence offered will be indulged in against him.</p> <p>Defendant, the E. R. Co., issued to plaintiff a commutation ticket between Jersey City and ITanuet; an intermediate portion of the route was over the track of the IT. R. Co.; the ticket was headed IT. R. R., and was given, on the surrender of another bought of the IT. R. Co., between Jersey City and G-ranton, a station on the IT. R. R., and on payment of the additional charge. Both companies carried passengers and ran trains to and from the depot of the E. R. Co. at Jersey City. There was no distinction in the trains which commuters could take. Commutation tickets for stations on either road were sold for two days in each month at the office of the IT. R. Co., and on other days at the office of' the E. R. Co. Plaintiff took a regular passenger train at ITanuet for Jersey City and the car was marked IT. R. R. On entering the depot at Jersey City, the locomotive was detached. Plaintiff arose from his seat in preparation for leaving. The cars moved] on through the depot and struck with great force against a bumper, injuring the plaintiff. In an action to recover the damages it was admitted that the relations of defendants to each other were defined by written contracts, which they, upon notice, refused to produce. A verdict was rendered against both defendants. Held, no error; that while the proof to establish a joint interest in defendants was slight, yet there was some; and defendants knowing the truth and omitting to speak, every [inference warranted thereby should be taken against them; that there was sufficient evidence of negligence on the part of defendants, and no ground for imputing contributory negligence to plaintiff.</p>

Ebbob 'to the General Term of the Supreme Court in the first judicial department to review judgment, affirming a judgment of the Court of Oyer and Terminer in and for the county of Hew York, entered upon a verdict convicting plaintiff in error of the crime of murder in the first degree.

<p>Where a vendor of real estate, who, under an executory contract of sale, has received payment of the purchase-money, retains possession of the land and refuses to deliver it, according to his contract, he cannot reap the benefit of the contract while thus retaining possession; and in case the rental value of the land is less than the interest on the purchase-money, the vendee is entitled to such interest as damages for being kept out of possession. (Gbovee, J., dissenting.)</p> <p>Where waste has been committed by a vendor of land pending a contract of purchase, by cutting down and carrying away timber, or by removing other valuable materials belonging to the freehold, the diminution in the value of the land is not the exclusive measure of damages. In equity everything forming part of the inheritance belongs to the vendee from the date of the contract, and the rights and liabilities of the parties will be adjusted upon that assumption, and the vendee is entitled to recover the value of the materials so removed. (Geoveb, J., dissenting.)</p>

This action was brought to obtain a construction of the last will and testament of Robert H. Pearson, late of San Francisco, California, deceased.

<p>The authority conferred hy the act “ to reduce several laws relating to the city of New York into one act” (chap. 86, § 178, Laws of 1813) upon the corporation of the city of New York to take lands for streets (not laid out under the act of 1807) by coercive proceedings against the owner, contemplates the acquisition by the city of the entire title, and compensation is to be made as well for the buildings upon the lands as for the soil.</p> <p>Without the consent of the owner the commissioners of estimate and . assessment have' no right to restrict the assessment to the value of the land, compelling the owner to retain the fixtures on the premises as chattels and exempting the city from the obligation to take and pay for them as part of the land.</p> <p>The owner, however, may waive his right and assent to retain the buildings as a chattel interest, in which case they will be regarded as severed, and the city acquires title to the land subject to the right of the owner to remove the buildings. ‘</p> <p>Accordingly, held, where the commissioners of estimate and assessment by agreement with the owner, in their report assessed the value of land required for street purposes, reserving to the owner the title to the buildings thereon and the right to remove them, which report was confirmed by the court without objection, that the city was liable to the owner for the subsequent conversion by it of the materials of the buildings.</p>

This action was brought against defendants, who were brokers in the city of Yew York, to recover damages for an alleged unauthorized sale by them of 500 shares of stock of the Chicago and Alton Bailroad Company’s stock which they had purchased for plaintiff. The facts, pertinent to the question discussed, appear sufficiently in the opinion. The rule of damages laid down left no discretion to the jury and was incorrect.

<p>In the absence of an agreement between the parties, the receipt of rents and profits from mortgaged premises by a mortgagee in possession, to an amount sufficient to satisfy the mortgage, is not a legal satisfaction thereof. The mortgagor must resort to an accounting in equity in order to have such receipts so applied; and until they are applied in satisfaction by a judgment of the court, the character of the mortgagee as mortgagee in possession is not divested, and ejectment cannot be maintained against him or his grantee.</p>

This action was broiTght to recover back moneys paid by plaintiff to defendant upon sale of an interest in a patent right, which plaintiff claimed to rescind on the ground of fraud. The sale was made on the 17th July, 1868. One J. H. Thompson was called as a witness, by plaintiff, to prove a certain conversation between the witness and defendant, and that it occurred prior to the sale.

Kavenagh to take title and pay the purchase-money of a portion of the premises. This was an action of partition. That portion of the premises involved in this motion was formerly owned by Francis Titus.

This action was brought upon an undertaking given upon an appeal to the Court of Appeals in an action wherein Samuel C. Reed was plaintiff and Philip Nussbaum and David Allerton defendants. Peed had, in 1862, recovered a judgment against Eussbaum in the Superior Court for $1,545.10. He therefore brought the said action against Peed and Allerton to enforce said judgment. Eussbaum defended, the plaintiff herein appearing as his attorney.

This action was brought to compel defendants to take title to and to pay for 136 lots, situate in the city of Brooklyn, bought by them at a referee’s sale, made under and in pursuance of an order of the Supreme Court. The complainant alleged the purchase by defendants and payment of the ten per cent, the execution and tender to them of a deed by the referee and their refusal to accept and to pay the residue of the purchase-money.

The execution against the body of plaintiff was valid as the cause of action contained in the complaint warranted it. (Code, § 179, sub. 2, § 288; Wood v. Henry, 40 N. Y., 124; In re Watson, 3 Lans., 415; Smith v. People, 47 N. Y., 336; Stall v. King, 8 How. Pr., 298; Duguid v. Edwards, 50 Barb., 288; Scudder v. Shields, 17 How.

Appeal, from order of the General Term of the Supreme Court in the first judicial department, affirming an order of Special Term made upon settlement of the accounts of Edward Schell, trustee, etc., of the estate of Jacob Appley, which disallowed an item of $2,500 charged for his services as such trustee. Jacob Appley died in 1848 seized of a large real and personal estate.

This action was brought to recover damages for a breach of an alleged promise of marriage. The facts sufficiently appear in the opinion. It was error to deny the motion at the close of plaintiff’s case to dismiss the complaint, as plaintiff had failed to make out an engagement of marriage between herself and defendant. (Weaver v. Bachert, 2 Barr., 80 ; Honeyman v. Campbell, 5 Wils. & Shaw, 144, 145; S. C., 2 Dow & Clark, 282; 31, 32 Vict., 68, § 2; Broughton v. Smart, Sup.

<p>The power of the Supreme Court to render a personal judgment against the mortgagor for a deficiency in an action, for the foreclosure of a mortgage does not extend to a case where the mortgagor is a non-resident, and has neither appeared in the action nor been served with process within the State. The remedy of the plaintiff in such case is limited to the foreclosure and sale of the equity of redemption in the mortgaged premises.</p> <p>The authority given by the Code (§ 135) to proceed by publication against a non-resident where he has property in the State, or the suit has relation to property therein in which he has or claims an interest, is to be interpreted in view of the necessity which called for its enactment, and authorizes only a judgment in rem, not in personam.</p> <p>To warrant such a construction of a statute as will authorize a judgment in personam against a non-resident not served with process in this State and not appearing in the action, the expression of legislative intent must be clear and unequivocal.</p> <p>A purchaser upon a sale under a void execution, who has paid the purchase-money in good faith, without actual knowledge of the invalidity of the process, to the party who procured the sale, the latter knowing that the sale gave no title, can maintain an action against such party to recover back the money paid.</p> <p>Knowledge will not be imputed to the purchaser in such case in order to make out that the payment was voluntary.</p>

<p>Appeal from judgment of the General Term of the Court of Common Pleas of the city of New York, affirming a judgment entered on the report of a referee, dismissing the complaint.</p> <p>The action was ejectment for the recovery of lot No. 912, on the map of the property of Charles Henry Hall, situate on the northerly side of One Hundred and Twenty-eighth street, in the city of Hew York.</p> <p>The plaintiff proved that on and prior to Hovember 23d, 1827, Charles Henry Hall was in possession of the lot, and deduced a regular chain of title from him to Jacob Bell, who purchased it in 1843 and died in 1852. On the 9th of August, 1870, his widow and heirs-at-law conveyed the lot to the plaintiff, who ón the 26th of September, 1870, brought this action.</p> <p>At the time of that conveyance and of the commencement of the action the lot was in the actual possession of the defendant Hughes and his co-defendants, who were his tenants.</p> <p>Hughes claimed under a deed from Samuel Walter, dated March 16, 1869, and duly recorded, whereby, in consideration of $1,875, Walter granted, bargained and sold to him in fee the lot in question, describing it by metes and bounds, and to the description were added these words, “ and is the easterly of the three lots mentioned and described in that certain indenture of lease made by the mayor of the city of Hew York to Wm. E. Stafford, dated June 8, 1850, for one hundred years from the date thereof, and recorded,” etc., etc., and assigned by Stafford to Joel W. King, and by him to Sylvia King, in the year 1851.</p> <p>The defendant’s grantor, Samuel Walter, had been in possession of the lot since the year 1852. He had built a house upon it and occupied it. His only paper title was a quitclaim deed from Sylvia King, dated April 8, 1852, and duly recorded, whereby in consideration of $300 she remised, released and quitclaimed to Walter, his heirs and assigns forever, the lot in question by a description similar to that contained in the deed from Walter to Hughes, including the reference to the corporation lease and assignment.</p> <p>Sylvia King had gone into possession with her son, Joel W. King, in or prior to the year 1851. They occupied three lots adjoining each other, of which the lot in question, was one. They built a house on one of the lots and the others were fenced in. It does not appear that they had any paper title except the corporation lease.</p> <p>On the trial the plaintiff offered in evidence, for the pur. pose, as he alleged, of showing the claim under which the defendants occupied the premises, the lease and assignments referred to in the deeds. The lease recites that it was made pursuant to a sale for the non-payment of an assessment for opening One Hundred and Twenty-eighth street, and is in the usual form of such leases. The defendant, Hughes, was a witness upon the trial, and was asked by the plaintiff’s counsel, in reference to the. deed from Walter, the following questions: “ Did you ever know what title you obtained under that deed ?” “Did you ever know what title Samuel Walter claimed under?” These questions were excluded by the referee and exception was taken. The referee held that at the time of the delivery of the deed from the heirs of Bell to the plaintiff (August 9, 1870), the premises were in the actual possession of a person claiming under a title adverse to that of the grantors, and that said deed was void, and the complaint should be dismissed. On appeal to the General Term the judgment entered upon the referee’s report was affirmed, and the plaintiff appealed to this court.</p> <p>Plaintiff had a right to offer in evidence the corporation lease and assignments down to defendants’ grantors, to explain defendants’ occupation, without being bound to accept them as valid. (1 Phil, on Ev., C. & H. notes, 3d ed., 185 ; 1 Phil, on Ev., 193-195 ; 1 Greenl. on Ev., §§ 108, 109, 527, 527 a; Flora v. Carbeau, 38 N. Y., 113; Smith v. Burtis, 9 J. R., 174.) As privies in estate, defendants are bound by the admissions and declarations of those from whom they derived title. (1 Phil. on Ev., 367, 391, 393; 1 Greenl. on Ev., §§ 189, 190; 2d id., § 305.) Plaintiff did not waive his right to deny the validity of the lease and assignments by introducing them in evidence. (1 Phil, on Ev., C. & H. notes, 417, 422; 4 id., 397, note, 220; 1 Greenl. on Ev., §§ 82-86.) The corporation lease could only be evidence of the sale of the land. (1 Greenl. on Ev., §§ 493, 495, 498; 4 Phil, on Ev., 241; Williams v. Merle, II Wend., 82; 1 R. L., 2d ed., 400, §§ 84-89; Davies’ N. Y. City Laws, 843, 869 ; Striker v. Kelly, 2 Den., 323; Doughty v. Hope, 3 id., 602; 1 Comst., 79; Tallman v. White, 2 id., 69; Westbrook v. Willey, 47 N. Y., 460; Hoyt v. Dillon, 19 Barb., 649; Varick v. Tallman, 2 id., 113; Leggett v. Rogers, 9 id., 411; Jackson v. Shepard, 7 Cow., 88; Beekman v. Bingham, 5 N. Y., 366.) Plaintiff’s title to the premises having been established by the evidence, defendants must show by strict and positive proof that their title is adverse to said legal title. (Code, § 81; Stevens v. Hauser, 304; Hammond v. Zehner, 21 id., 120; Tyler v. Hudorn, 46 Barb., 464; Marble v. McMinn, 57 id., 614; Livingston v. Peru Iron Co., 9 Wend., 520; Jackson v. Parker, 3 J. Cas., 124; Jackson v. Sharp, 9 J. R., 163; Jackson v. Waters, 12 id., 365; Jackson v. Thomas, 16 id., 293; La Fromboise v. Jackson, 8 Cow., 617; Vandervoort v. Guild, 36 N. Y., 643; Wickham v. Conklin, 8 J. R., 175; Howard v. Howard, 17 Barb., 663; Crary v. Goodman, 22 N. Y., 177; Clarke v. Hughes, 13 Barb., 147; Jackson v. Davis, 5 Cow., 123, 129.) Title must be proved to render void a deed because of possession of the land by another. (3 R. S., 5th ed., 30, § 167; Crary v. Goodman, 22 N. Y., 176; Stevens v. Hauser, 39 id., 306; Fish v. Fish, 39 Barb., 513; Bowie v. Brake, 3 Duer, 35 ; Hallas v. Bell, 53 Barb., 247; Marble v. Mc Minn, 57 id., 610; Howard v. Howard, 17 id., 663; Brady v. Began, 36 id., 533; Laverty v. Moore, 33 N. Y., 658; Jackson v. Johnson, 5 Cow., 74; Jackson v. Camp, 1 id., 605; Jackson v. Bard, 4 J. R., 230; Jackson v. Hill, 5 Wend., 532.) A title set up as adverse to an éstablished legal title must be equal to it in character to render void a deed. (Livingston v. Peru Iron Co., 9 Wend., 516 ; Towle v. Palmer, 1 Abb. Pr. [N. S.], 111; Howard v. Howard, 17 Barb., 667; Hoyt v. Dillon, 19 id., 651; Jackson v. Johnson, 5 Cow., 74, 92; Smith v. Burtis, 9 J. R., 180; Willard on R. E., 356; Crary v. Goodman, 22 N. Y., 248; Hallas v. Bell, 53 Barb., 248; Fish v. Fish, 39 id., 513; Marble v. McMinn, 57 id., 614; Jackson v. Frost, 5 Cow., 351; Jackson v. Waters, 12 J. R., 365; Jackson v. Ingraham, 4 id., 181; Jackson v. Hill, 5 Wend., 532; Jackson v. Andrews, 7 id., 152; La Fromboise v. Jackson, 8 Cow., 605.) The lease could only give a title subordinate to the legal title found in plaintiff’s grantors. (Jackson v. Esty, 7 Wend., 148; Bush v. Davison, 16 id., 553; Leggett v. Rogers, 9 Barb., 411; Tyler v. Hudorn, 46 id., 464; Chalmers v. Wright, 5 Robt., 718; Davies’ Laws City N. Y., 599, 864; Laws 1816, chap. 115, § 2; Laws 1843, chap. 230, § 1, art. 3.)</p> <p>Defendant Hughes has proved title in fee simple and actual possession in himself. (Lane v. Gould, 10 Barb., 254; Hammond v. Warfield, 2 H. & J., 151; 2 Mott & McC. R., 243; Forney v. Lenox, 8 S. & R., 393; Jackson v. Bowen, 1 Caines, 358; Jackson v. Elton, 10 J. R., 452; La Framboise v. Jackson, 8 Cow., 597; 1 id., 286 ; Clapp v. Brumagham, 9 id., 550; Jackson v. Vermilyea, 6 id., 680; Mumford v. Whitney, 15 Wend., 381.) Plaintiff having stood by for twenty-five years and seen defendants make improvements on the land, is concluded from asserting title. (1 Eq. Cas. Abr., 356, pl. 10; 3 id., 522, 523, pl. 3; Doe ex rem. Wickley v. Pye, 1 Esp. R.., 364; 6 T. R., 556; East India Co. v. Vincent, 2 Atk., 33; Stiles v. Cooper, 3 id., 692; 5 Ves., 688; 1 Ans., 184; Adams v. Rockwell, 16 Wend., 285; Lockwood’s Rev. Cas., 17.) The deed from Bell to plaintiff was void. (4 Kent, 490; 2 Blk., 33; Williams v. Jackson, 5 J. R„ 489; Curtis v. Follett, 15 Barb., 342; Becker v. Van Valkenburgh, 29 id., 319; Carpenter v. Schermerhorn, 2 Barb. Ch., 314; Jackson v. Moore, 13 J. R., 513; Jackson v. Robins, 15 id., 169; Woodworth v. Jones, 2 J. Ch., 417; 3 R. S., 5th ed., 30.) Plaintiff by offering in evidence the lease and assignments has proved defendant Hughes’ title. (1 Greenl. Ev., § 201; Child v. Chappell, 5 Seld., 256.) Defendants being entitled to immediate possession, plaintiff cannot recover, and is not entitled to any judgment. (Atkins v. Harde, 1 Burr., 119; Doe v. Staple, 2 D. & E., 684; Doe v. Jackson, 2 Dowl. & Ryl., 523; Cincinnati v. White’s Lessee, 6 Peters, 431; Hylton v. Brown, 1 Wash., 204; Owen v. Fowler, 24 Cal., 192; Owen v. Norton, id., 373; Batterton v. Joakum, 17 Ill., 288; Daniel v. Le Fever, 2 Ark., 201; Tyler on Eject., 77 ; Water son v. Cowen, id., 510; Livingston v. Mayor, 8 Wend., 85; Wyman v. Mayor, 11 id., 486; Childs v. Chappell, 5 Seld., 256.)</p>

The plaintiffs are husband and wife, and brought this action jointly to recover damages for an alleged fraud on the part of defendant in inducing plaintiffs to convey to defendant certain premises known as the Hewtonville property,” situate near Albany, and to receive in part payment therefor three bonds and mortgages of $1,000 each, which plaintiff alleged to be worthless. The property conveyed was owned by Mr. Simar.

judgment on a verdict. This action was brought to recover back the purchase-money alleged to have been paid to defendants by plaintiff’s assignor, William B. Scranton, upon the purchase of certain railroad bonds, upon the ground of failure of title.

This action was brought to recover damages for the breach by defendant of the following contract in writing: “August 5th, 1864. “ E. E. Davis agrees to deliver to T. Cowen $10,000 current funds of the United States at fifteen cents on the dollar, to be delivered in ten months from this date. T. Cowen agrees to take the above $10,000 as above. “E. E. DAYIS. “T. COWES'.” This contract was assigned to the plaintiff December 22d, 1864.

This was an action for the partition and sale of lands in Orange county, N. Y., brought originally by George Walter Hurtin.

(Reported below 62 Barb., 181.) This was an action upon a policy of life insurance issued by the defendant, the International Life Insurance .Society, upon the life of James Martine, of Fayetteville, North Carolina, fur the sum of $5,000. Defendant is a foreign corporation, organized under the laws of Great Britain.

On the 11th October, 1871, plaintiffs recovered judgment for $1,063.21. Execution was issued to said sheriff, who collected the amount thereof.

<p>To constitute a valid trust under the statute of uses and trusts (1 R. S., 728, § 55), it is not necessary that the purpose of the trust should he stated in the words of the statute. It is sufficient that a purpose within the statute is clearly embraced in the language .used, or that a power conferred in express terms includes a power over the estate, for the execution of which the trustees may be clothed with a legal title.</p> <p>The law prefers a construction of a will which will prevent a partial intestacy to one which will permit it.</p> <p>The will of V., by its first clause, gave all his estate to his trustees and executors, to be disposed of as thereinafter directed; following this was a clause giving certain premises to his wife ; also, power was given to his executors to sell said premises for not less than a sum specified, and to invest the proceeds for her benefit during life. Held, that the executors took no title to said premises; that as the interest of the wife was not limited to a use only, and as the power of sale was contingent, not absolute, no such implication arose, from the direction as to the investment of the proceeds in case of sale, as would cut down her interest to a life estate, and that she took a fee subject to the power of sale.</p> <p>The testator also gave to his wife an annuity of $7,000, to be paid by the executors out of the testator’s share in the rents of certain stores (of which he owned a moiety); if insufficient, then from the interest of other property. The executors were authorized to sell the stores at a minimum price stated. Held, that the power to receive the rents and profits was necessarily implied from the duty enjoined upon the executors to apply them; that they took, as trustees, the legal title during the life of the wife for the purposes of the trust; and (there being no residuary clause in the will), that the lands descended to the testator’s heirs upon his decease, subject to the trust estate. (1 R. S., 729, § 62.)</p> <p>Aside from his real estate, the testator owned an interest in the assets of a firm .of which he was a member. After describing the same, and giving several legacies, to be paid out of it, the testator directed that the balance might remain in the hands of his surviving partners for five years, on interest, and then desired it to be invested in good securities for the benefit of his children, and “ to be distributed among them as follows then followed a bequest to each child of $10,000, to be paid on arriving at the age of twenty-four. No other disposition was made of such balance. Held, that the bequest should be construed as giving the testator’s entire interest in the assets of the firm (after payment of the specific legacies) to his children, and as postponing the payment of $10,000 of each share until the beneficiary arrived at the age of twenty-four; that the trustees were entitled to retain the whole fund until the time for distribution, i. e., until five years after the death of the testator, and thereafter a sum sufficient to enable them to perform the continuing trusts; that the provision that the fund might remain with the surviving partners for five years, was an authority for investment merely, the executors having power to withdraw it; and that upon a proper case made the court might direct the giving of security as a condition of thus continuing the investment.</p> <p>The provisions made in the will for the wife of the testator were not declared to be in lieu o dower. Held, that the authority given to the executors to sell the real estate, not devised to the wife, at a price fixed was inconsistent with a claim for dower; that the widow was put to her election, and an acceptance of the testamentary gift defeated her dower.</p> <p>One of the testator’s children died a minor and without issue before the death of the testator. Held, that the legacy to her' lapsed, and that the widow was entitled to her distributive share in this and the other personal property not disposed of by the will, after payment of debts.</p>

.Appeal from judgment of the General Term of the Hew York Common Pleas, affirming a judgment in favor of defendant, entered upon the decision of the court at Special Term upon trial without a jury. This was an action to recover damages for the loss of a trunk and contents. The facts were stipulated, and are substantially as follows: Defendant is a corporation duly organized under the laws of the State of Connecticut.

<p>Appeal from judgment of the General Term in the fourth judicial department, affirming a judgment in favor of plaintiff, entered upon a verdict.</p> <p>This action was brought against defendant as a stockholder in the Penfield Paper Company, to charge him with a debt of the company, under the general manufacturing act of 1848. (Chap. 40, Laws of 1848.)</p> <p>In March, 1870, the plaintiff commenced an action before Alpheus S. Clark, Esq., justice of the peace, against the paper company, for the collection of this debt, claiming judgment for $200 of the amount. Before this action was determined, the defendant, as a creditor of the paper company, instituted proceedings in bankruptcy against it, in which the company was adjudged a bankrupt on the 15th of March; and on the day last named (the defendant), on motion of counsel for the petitioning creditor, an injunction was granted by the District Court of the United States, in which said proceedings were pending, restraining plaintiff from prosecuting any action against the company. Testimony was -introduced by the defendant, tending to show that he had ceased to be a stockholder before the plaintiff’s claim accrued against the company; but no transfer of his stock appeared on the books of the company. At the close of the case, the court directed a verdict for the plaintiff for the amount of his claim, reserving the case, however, for future consideration, upon which, after full argument, judgment was ordered and entered. The General Term affirmed this judgment, on condition of the plaintiff’s stipulating to reduce the verdict to $200, the amount for which the justice of the peace had jurisdiction, with interest from the time the action before him was brought. The plaintiff so stipulated.</p> <p>Plaintiff failed to perform the conditions precedent to his right to prosecute the defendant as a stockholder. (2 R. S. [Edm. ed.], 243, §§ 11, 12.) The bankruptcy proceedings furnish no excuse for a non-performance of the conditions precedent. (Bank. Act, §§ 21, 24.) The return of an execution wholly or partially unsatisfied is indispensable to the prosecution of an action against a stockholder. (Lindsley v. Simonds, 2 Abb. [N. S.], 69.) Defendant by delivering the certificate of his stock, with power of attorney duly indorsed thereon, made a valid transfer of his stock. (N. Y. C. and H. R. R. v. Schuyler, 34 N. Y., 79; Com. Bk. of Buff. v. Kortright, 22 Wend., 348; Bk. of Utica v. Smalley, 2 Cow., 770; affirmed in Ct. of Errors, 8 id., 398.)</p> <p>Plaintiff established his claim against defendant as a stockholder. (Ex parte Van Riper, 20 Wend., 616; Corning v. McCullough, 1 Comst., 47; Bird v. Hayden, 2 Abb. [N. S.], 61; Nappier v. Mortimer, 11 id., 455; Mer. Bk. v. Bliss, 35 N. Y., 412, 416.) Performance by plaintiff of the conditions precedent was excused by the injunction obtained by defendant. (Lovett v. Cornwell, 6 Wend., 369; People v. Bartlett, 3 Hill, 570; Loomis v. Tiffi, 16 Barb., 544.) Plaintiff did not waive his right to sue the corporation by proving his claim in bankruptcy. (Allen v. Soldiers, etc., Co., 4 B. R., 176; In re Robinson, 2 id., 109; Meyer v. Aurora Ins. Co., 7 N. B. R., 191; In re Firemen's Ins. Co., 7 Am. L. Reg., 567.)</p>

This action was brought to recover damages for the alleged conversion of a boiler and engine. The plaintiffs, under a written contract, manufactured the engine and boiler in question, with other machinery, for .Mrs. Jane Coombs Brown, to be put up and used in a new elevator, which Mrs. Brown was building, in the city of Buffalo.

<p>Where a creditor unites with others in a release of the debtor, and signs off for a demand which he has previously transferred, he impliedly undertakes to protect the debtor from such demand, and upon payment being enforced against the debtor, he can recover of the creditor; and this is so, although the release was voluntary.</p>

This action was brought to recover the sum of $570, alleged to have been deposited by plaintiff with defendant. The plaintiff, on March 7,1867, went to the First National Bank of Elmira, the defendant, for the purpose of depositing the sum of $570.

(Reported below, 64 Barb., 23.) This action was brought to recover the sum of $5,000, claimed as liquidated damages, for the non-performance of a contract. On the 11th November, 1863, the parties entered into a written contract by which defendant agreed to sell to plaintiff certain premises situate in Flushing, Queens county.

The board of water and sewerage commissioners regularly advertised and let the contract to the lowest bidder for prices amounting to $232,858.45. The successful bidder entered into a contract, and after performing a portion of the work abandoned it. Without further advertisement, and without competition, the board proceeded to complete and did complete the work, making the entire cost $360,068.70. It was proved that the prices paid were the fair market prices for the work.

uAppeal from, order of the General Term of the Supreme Court in the second judicial department, affirming an order of Special Term, adjudging defendant in contempt, etc. In a judgment in a foreclosure suit, defendant was appointed referee to sell.

Flammer, a purchaser of a portion of the premises sold in this action, to complete his purchase and take the referee’s deed. This was an action for the foreclosure of a mortgage covering four lots in the city of ¡New York, upon which were unfinished buildings. ¡Previous to the execution of the mortgage, a Us pendens was filed in the office of the clerk of the city and county of ¡New York, affecting the lots, by the department of buildings, under chapter 625, Laws of 1871.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, reversing a portion of a judgment in favor of plaintiffs entered upon the decision of the court at Special Term.</p> <p>The action was brought to foreclose the plaintiffs’ lien as warehousemen, for the storage of a caloric engine and machinery appurtenant thereto, and for a personal judgment against the defendants, for any deficiency that should remain after the sale of the property and the application of the proceeds.</p> <p>The property was delivered to the plaintiffs, to be stored, December 29, 1865, under an agreement that they were to be paid a reasonable compensation for. the time of storage. The defendant, Pesant, pleaded in bar of his personal liability his discharge in bankruptcy, obtained upon his petition filed December 10, 1867. The court, at Special Term, held that the respondent’s discharge was effectual only as to so much of the claim as accrued prior to the filing of the petition, in pursuance of which the discharge was obtained. He directed a sale of the property, and the application of the net proceeds to the payment of the costs of the action, and of the whole claim for storage; and he ordered judgment against the defendant Pesant, personally, for the deficiency, to the extent of so much of the claim for storage as accrued subsequent to the filing of his petition in bankruptcy. Judgment was accordingly entered, and, after a sale of the property, judgment for a deficiency was entered against the respondent.</p> <p>The respondent appealed from so much of the judgment as charged him with personal liability, and that part of the judgment was reversed at General Term.</p> <p>The discharge in bankruptcy of Pesant discharged his indebtedness upon the contract up to the time of filing his petition. (Ocean Nat. Bk. v. Olcott,, 46 N. Y., 12.) Plaintiffs’ claim for storage to accrue subsequently to the bankruptcy was not a provable claim. (Jameson v. Blowers, 5 Barb., 686; Stinemetz v. Ainslie, 4 Den., 573; Parker v. Ince, 4 H. & N., 52 ; In re Clough, 2 B. R., 59; Tuttle v. Smith, 14 How. Pr., 395.) The bankruptcy proceedings did not affect the contract between the parties, and defendant is liable for the indebtedness that accrued upon it from the time of bankruptcy. (Aariol v. Mills, 4 T. R., 94; Boot v. Wilson, 8 East, 311; Parker v. Ince, 4 H. & N., 52; Warburgh v. Tucker, 32 E. L. & E., 189; Murray v. De Rottenbam, 6 J. Ch. R., 52; Lansing v. Pendergast, 9 J. R., 127; Stinemets v. Ainslie, 4 Denio, 573.) Defendant was liable for the accrued storage on an implied contract to pay for the same. (Hendricks v. Judah, 2 Caines’ R., 25 ; Oatfield v. Waring, 14 J. R., 187; People v. Flagg, 17 N. Y., 584.)</p> <p>The discharge in bankruptcy extinguished .the contract with the plaintiffs, and no indebtedness thereon could subsequently accrue. (Depuy v. Swart, 3 Wend., 135; Crafts v. Mott, 4 N. Y., 604; Tobias v. Rogers, 13 id., 59 ; Ocean, Nat. Bk. r. Olcott, 46 id., 12.)</p>

This action was brought upon a joint promissory note of $1,000, signed by the defendants, who were husband and wife. The facts are sufficiently stated in the opinion. The court directed a verdict in favor of the wife, and the jury rendered a verdict accordingly, finding for the amount of the note against the husband. The case should have been submitted to the jury. (Smith v. Tiffany, 36 Barb., 23; Stone v. Flower, 47 N. Y., 566; Sheldon v. At. F. Ins.

<p>To constitute a valid tender under an executory contract for the sale of chattels, the law only requires such acts as are practicable according to he character of the thing tendered and the nature of the business; if the articles are ponderous and bulky, a manual delivery is unnecessary.</p> <p>Plaintiff contracted to sell defendants 50,000 pounds of copper, to be delivered upon a day specified, upon payment of the agreed price. At the time named for delivery plaintiff tendered to defendants warehouse receipts of copper to the amount of 49,966 pounds, and offered to pay the warehouse charges or to deduct the amount thereof from the purchase-price. He also offered to deliver the copper itself if required. He had other copper, more than enough, to make up the full amount contracted for. Defendants made no objection to the mode of tender nor to the amount tendered, but declined to accept a delivery upon the ground that they could not pay. Held, that the mode of tender was sufficient, but if there were any objections thereto they were waived, as was also any objection as to the amount tendered.</p> <p>Upon a valid tender of specific chattels under an executory contract of sale, the property passes to the vendee, at whose risk it is retained by the vendor.</p> <p>Upon the refusal of the vendee to accept and pay the price, the vendor, upon proper notice, may sell and recover the difference between the contract and the selling price, or he may retain the property and recover the difference between the contract and the actual price, or he may sue for and recover the contract price. If he elects the latter remedy, he holds the property as trustee for the vendee, and is bound to deliver it whenever demanded upon receiving payment.</p>

This action was brought to recover the possession of certain logs cut • by the defendant and removed by him from premises in the town of Colchester, Delaware county. The pain tiff claimed title to the land under a comptroller’s deed, dated March 27, 1862. The land was sold by the comptroller in November, 1859, for the taxes of the years 1851, 1852, 1853. The further facts appear in the opinion. The court directed a verdict for the defendant, which was rendered accordingly.

This action was brought to recover for services alleged to have been rendered by plaintiffs, as attorneys and counselors-at-law, for defendant, and upon his employment. The facts sufficiently appear in the opinion. Defendant had a right to cross-examine plaintiffs as to their incomes in order to learn if they were qualified to testify as experts as to the value of their services.

The nature of the action and the facts are stated sufficiently in the opinion. The court erred in holding that the payments on the Dennison note would take the note in suit out of the statute of limitations.

<p>Appeal from order of the General Term of the Supreme Court in the fourth judicial department, setting aside a verdict in favor of plaintiffs and granting a new trial.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>It was the fire that was the proximate cause of the explosion, and defendant is not protected by the clause in the policy in relation to explosions. (City F. Ins. Co. of N. Y. v. Corlies, 21 Wend., 367; Grim v. Phoenix Ins. Co., 13 J. R, 451; Waters v. Mer. Louisville Ins. Co., 11 Pet., 213; Babcock v. Mont. Ins. Co., 4 N. Y., 326; Scripture v. Lowell Mut. F. Ins. Co., 10 Cush. Mass., 356, 362; Evans v. Col. Ins. Co., 44 N. Y., 146; Gates v. Mut. Ins. Co., 5 id., 469; Ins. Co. v. Tweed, 7 Wal., 44; St. John v. Am. Mut. F. and M. Ins. Co., 11 N. Y., 516; Strong v. Sun Mut. Ins. Co., 31 id., 103.) The policy must be construed upon the broadest principles of fair and liberal dealing. (Driggs v. Alb. Ins. Co., 10 Barb., 440,444, and cases cited; White v. Hud. R. Ins. Co., 15 How. Pr., 288; Stanley v. West. Ins. Co., 3 Exch., 70.)</p> <p>The policy only covers damages arising from actual burning and excludes all damages from the violence of the explosion. (Stanley v. West. Ins. Co., 3 Exch. [L. R.], 71.) The cause of the first injury was the explosion of the vapor, and not fire within the meaning of the policy. (Millandon v. N. O. Ins. Co., 4 Louis. An. R, 15; St. John v. Am. Mut. F. and M. Ins. Co., 1 Kern., 516, 531.)</p>

These were appeals from judgments of the General Term of the City Court of Brooklyn, affirming judgments in favor of plaintiffs, entered upon verdicts. These actions were brought to recover damages for the deaths of plaintiffs’ intestates,- alleged to have been occasioned by the negligence of defendant.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, setting aside a verdict and granting a new trial.</p> <p>This action was brought to recover the possession of certain goods alleged to have been fraudulently purchased by defendant, George Samuels, of plaintiff.</p> <p>The facts appear in the opinion.</p> <p>The jury had a right, from the facts proved, to find Samuels guilty of fraud in purchasing the goods from plaintiff. (King v. Phillips, 8 Bosw., 603; Brown v. Montgomery, 20 N. Y., 287; Nichols v. Michael, 23 id., 264; 24 id., 139 ; 49 Barb., 98,314; 2 Keyes, 647.) Brandt as a judgment creditor for a precedent debt and a purchaser under his own judgment and execution, was not a Iona fide purchaser for value, so as to get a better title than Samuels got to the goods. (Acker v. Campbell, 23 Wend., 372; 20 id., 167; 3 Barb., 20, 30; 11 J. R., 529; 1 Paige, 493; 2 Comst., 517; Crocker on Sheriffs, 2d ed., § 452, note 9.) The evidence was sufficient, in the absence of explanation by defendant, that Brandt and Samuels colluded to subject plaintiff’s goods to Brandt’s execution. (People v. Dyle, 21 N. Y., 579, 580 ; C. & H. note to Phil. Ev., 2d ed., 1843, part 1, p. 310, and p. 156, vol. 1, of text; Darell v. Turner, 1 Paige, 493; Waterbury v. Sturtevant, 18 Wend., 361; 1 Hill, 308.)</p>

This action is brought to recover damages for an alleged breach of a contract for the sale of 500 shares of the Brooklyn City Railroad Company’s stock.

<p>Ebeob to the General Term of the Supreme Court in the first judicial department, to review judgment affirming judgment of the Court of General Sessions, in and for the city and county of Hew York, entered upon conviction of plaintiff in error of the crime of grand larceny.</p> <p>The offence charged was the stealing of an India shawl from the store of James HcCreery & Co., in the city of Hew York. The prosecution claimed that the shawl was taken by a confederate of the prisoner; the latter being present and aiding and assisting. The. facts are sufficiently stated in the-opinion.</p> <p>In summing up, the district attorney commented upon the failure of the prisoner to produce any explanatory evidence. The prisoner’s counsel requested the court to charge that any neglect on the part of the prisoner to produce evidence was a subject-matter which the jury could not consider. The court declined so to charge, and the counsel for the prisoner excepted.</p> <p>The court should have first compelled the prosecution to prove common criminal design between plaintiff in error and the person who took the shawl. (1 Greenl. Ev., § 3 ; People v. Bennett, 49 N. Y., 144.) It was error to allow the declarations and acts of the person who took the shawl and her companion, after they left the store, to prejudice the case of plaintiff in error. (1 Wharton [last edition], § 803 ; 3 Greenl. Ev., § 94.)</p> <p>There was no error in the judge’s charge as to the neglect of the accused to produce evidence. (Gordon v. People, 33 N. Y., 508, 509.)</p>

(Reported below, 6 Lans., 332.) At the Albany Sessions, held on the 13th of March, 1872, the district attorney produced to the court an indictment of Haggerty in September, 1868, in the same court, for robbery in the first degree, with the minutes of his conviction for robbery in the second degree, and sentence to the Clinton prison for three years.

Whitson, deceased. Said Whitson died in the year 1868, leaving a last will and testament, which contained the following bequest: “I give and bequeath to my beloved wife, Eliza C. Whit-son, the life use of the sum of ten thousand dollars ($10,000), directing my executors to semi-annually pay to her the lawful interest of the said sum of $10,000 from the day or date of my death; and after the decease of my widow this $10,000 to descend and pass to any heir or heirs my said…

the first judicial department, affirming a judgment in favor of plaintiff entered upon the report of a referee.

This was a reference, under the statute, of a disputed claim against an estate. The claim was presented by plaintiff as committee of Madison McCombs, an idiot.

affirming order of Special Term directing judgment for plaintiff upon three counts of the answer as frivolous. The answer contained six counts or defences. The order required defendants to make two of them more definite and certain, and directed judgment as aforesaid upon three. The other was held sufficient. The order, so far as it. gives judgment on the third, fifth and sixth defences, was authorized. (Code, §§ 247,150; Hecker v. Mitehel, 5 Abb., 455.)

<p>0. devised certain lands to plaintiff in trust; to take possession, manage and pay taxes, etc., from the rents until sold; to sell as soon as convenient; and, after deducting expenses and paying certain legacies, to pay the residue of the proceeds to the treasurer of defendant. Defendant executed a quitclaim deed of the lands to the heirs of the testator. Plaintiff sold the lands, as directed. In an action brought to recover of defendant the succession tax paid by plaintiff on the devise, as required by section 188 of the act of congress of 1864 (13 U. S. Stat. at Large, p. 389), held, that the devise gave to plaintiff the legal estate in the lands, subject to the right of defendant to enforce performance of the trust; that the duty of plaintiff was to sell the lands and to pay to defendant the residue, after deducting therefrom the succession tax; that the quitclaim deed transferred no title, but simply the equitable right of defendant to enforce performance of the trust, and to receive such proceeds as it was entitled to; and that plaintiff had no cause of action against defendant, even if he -had paid to the grantees the proceeds, without deducting the tax.</p>

<p>Appeal from order of General Term of the Court of Com-Pleas of the city and county of New York, affirming order of Special Term denying defendants’ motion that the cause be sent back to the referee for further findings.</p> <p>The facts appear in the opinion.</p>

This action was brought to foreclose a mortgage given by defendant, Stevenson, to plaintiff. The bond accompanying it contained a condition in substance that, should the interest on the principal sum remain unpaid and in arrear for thirty days, then, at the expiration of that period, the whole principal, at the option of the mortgagee, should become due and payable. The allegations of the pleadings, and the facts, are set forth sufficiently in the opinion.

<p>Error to the General Term of the Supreme- Court in the first judicial department to review judgment affirming a judgment of the Court of General Sessions of the Peace in and' for the city and county of New York, entered upon a verdict convicting plaintiff in error of the crime of grand larceny.</p> <p>The indictment charged a former conviction for grand larceny, a sentence thereon to State prison, and then alleged that the accused had “ been duly discharged and remitted of such judgment and conviction.” Upon the trial, proof was given by the' prosecution of the former conviction and sentence, hut no evidence was given of imprisonment thereunder or of a discharge. At the close of the evidence the prisoner’s counsel asked the court to instruct the jury to acquit, on the count of the indictment charging a second offence, upon the ground that the prosecution had failed to show whether the prisoner had been discharged from prison or pardoned or judgment of the previous offence reversed. The court refused so to instruct, holding that it was for the prisoner to show, to which the prisoner’s counsel excepted.</p> <p>Plaintiff in error was only liable, under the charge of a prior conviction, upon averment and proof of his discharge thereon in the ways provided by statute. (2 R. S., 679, § 73; id., 699, § 8; Stevens v. People, 1 Hill, 261; People v. Gray, 25 Wend., 465; Fleming v. People, 27 N. Y., 329.) The accused had a right to demand a precise statement in the indictment of the facts constituting his alleged offence. (1 Bish. on Cr. Pro., §§ 505, 625, 633, 635, 639, and note; People v. Allen, 5 Den., 76; 3 Greenl. Ev., § 10.) The court erred in receiving evidence of a former conviction. (Arch. Cr. Pldgs., 17th ed., 143, 307, 960.) .</p> <p>(Rex v. Newman; Den. & P., 390; People v. Gray, 25 Wend., 468; Trial of Horne Tooke, 25th St. Trials, 447; Rex v. Perry, 7 C. & P., 836.) The pleading "and proof as to the former conviction were in accordance with well settled practice here and in England. (Rex v. Jones, 6 Car. & P., 39; People v. Butler, 3 Cow., 347; Tuttle v. Commonwealth, 2 Gray, 505 ; People v. Cook, 2 Park., 12; People v. Golden, 3 id., 330; Hines v. The State, 26 Ga., 614; Brooks v. Com., 2 Rob. Va., 845; People v. Youngs, 1 Caines, 31; 1 Bish. Cr. L., 2d ed., § 961, et seq.)</p>

This action was brought by plaintiff, as assignee of the Chicopee Malleable Iron Works, to recover a balance claimed to be due upon sale to Richard L. Allen, defendant’s intestate, of a quantity of malleable iron castings. The answer set up as a counter-claim a breach of contract as to time of delivery, and a warranty of quality and breach thereof.

(Reported below, 45 How. Pr. R., 147.) The action was upon a promissory note. The defendant pleaded his discharge in bankruptcy. Hpon the trial, after proof of the discharge, plaintiff offered to prove a subsequent promise of the defendant to pay the note. Defendant objected upon the ground that the action was upon the note, not upon, the new promise. The court sustained the objection, and directed a verdict for defendant, which was rendered accordingly.

Ebbob to the General Term of the Supreme Court in the first judicial department, affirming a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, entered upon a verdict convicting plaintiff in error of the crime of murder in the second degree. Plaintiff in error was tried upon an indictment for murder on the 22d March, 1872.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment entered upon the decision of the court at Special Term.</p> <p>This action was brought to obtain a construction of the last will and testament of Abijah Manse, Jr., deceased, and of a codicil thereto. The clauses of the will and codicil brought in question are quoted in the opinion.</p> <p>The real estate mentioned therein had not been sold and had yielded no income. The Special Term refused to interfere with the discretion of the trustees as to the time and manner of sale, but decided that in the meantime and until such sale shall have been made it was and is the duty of plaintiffs (the trustees and executors) “ to pay semi-annually out of the income of said residuary estate to and for the use of the defendant, Thomas H. Rodman, Jr., a sum which shall be equal to the interest on $10,000, to be computed at the rate of six per cent per annum from and after the 6th day of September, 1868, and a like sum to and for the use of said defendant, Mary W. Rodman, and a like sum to and for the use of the said defendant, William D. Rodman.”</p> <p>When an estate is given in a will with positive directions to sell, with discretion as to time of sale* conversion is worked by the death of the testator. (Stagg v. Jackson, 1 Comst., 212; Fowler v. Depou, 26 Barb., 239; Forsyth v. Rathbone, 34 id., 405; Arnold v. Gilbert, 5 id., 196; White v. Howard, 46 N. Y., 162.) In a case like this the primary intention of the testator to benefit the legatee must prevail. (Murray v. Murray, 2 Ch. Sent., 23; Taylor v. Clark, 1 Hare, 168; Meyers v. Eddy, 47 Barb., 266; Setwell v. Bernard, 6 Ves., 535, 536, note; Varley v. Winn, 2K & J., 708; Fitzgerald v. Jervoise, 5 Madd., 29; Arnold v. Gilbert, 5 Barb., 197; Dickin v. Edwards, 4 Hare, 276.) The cestwis gue trust were entitled to interest on the $30,000 from the date of the testator’s death. (Haxtan v. Corse, 2 Barb. Ch., 519; Campbell v. Cowdrey, 31 How., 180; In re Bird's Estate, 2 Pars. Eq., 172; Hilyard’s Estate, 5 Watts & S., 30; Eyre v. Golding, 5 Binn., 472; Spurway v. Glyn, 9 Ves., 483; Shirt v. Westby, 16 id., 395; Cook v. Meeker, 36 N. Y., 15; 1 Am. Lead. Cas., 5th ed., 629; 2 Redf. on Wills, 475, ed. 1870; 1 Chicago Leg. News, 210; Fontaine v. Tyler, 9 Price, 94; Queen's Coll. v. Sutton, 12 Sim., 521; Townsend v. Martin, 7 Hare, 471; Page v. Leapingwell, 18 Ves., 463 ; Creed v. Creed, 11 Cl. & Finn., 510; Story’s Eq. Jur., § 566.) It was the duty of the trustees under the will to sell the Bed Hook property immediately upon the death of the testator. (Walker v. Shore, 19 Ves., 391; Hutcheson v. Mannington, 1 id., 366, and notes; Arnold v. Gilbert, 5 Barb., 196; Forsyth v. Rathbone, 34 id., 390; Marsh v. Wheeler, 2 Edw. Ch., 163; Robinson v. Robinson, 19 Beav., 390; Howe v. Ld. Dartmouth, 7 Ves., 137; Fearns v. Young, 9 id., 552; Cafe v. Bent, 5 Hare, 34; 2 Wms. on Exrs., 1196, 1197; Denies v. Scott, 4 Russ., 195; Abrahal v. Hamilton, 101 C. R., 51; Wightwick v. Lord, 6 H. L., 228; Sitwell v. Bernard, 6 Ves., 541.)</p>

This action was brought to recover from defendant (the Mutual Life Insurance Company) the amount of two policies of insurance issued upon the life of plaintiff’s husband, John S. Barry, made payable to her, in the sum of $25,000.

This action was brought to recover the amount of five time drafts, drawn by the firm of Edwards & Buckland upon defendants, and discounted by plaintiff. Annexed to each draft was á carrier’s receipt, properly indorsed, for a quantity of cheese consigned by Edwards & Buckland to defendants, at New York.

811, Laws of 1868. Reported below 65 Barb., 435.) The writ was issued September 2, 1872. The return of the commissioners shows that the assessors made their affidavits August 30th, 1870. The papers were filed December 23d, 1870. The commissioners were appointed December 24th, 1870; they subscribed for $107,000 of the stock; this was afterward reduced to $85,000.

This action was brought to recover damages for the death of Henry Sipperly, plaintiff’s intestate, alleged to have been caused by defendant’s negligence. Sipperly was killed on the 3d of February, 1870. The circumstances of his death are sufficiently stated in the opinion. A verdict was rendered in favor of plaintiff. Exceptions were ordered to be heard at first instance at General Term.

<p>AppEAnfrom judgment of the General Term of the Supreme Court in the first judicial department, affirming a decree of the surrogate of the county of New York admitting to probate the will of Martha P. Wurtz, deceased.</p> <p>The testatrix was the widow of John Wurtz, deceased, and died without children. Her will was made and executed at Nice, November 21, 1868. It covered real and personal property, and was executed and published in accordance with the laws of this State. The probate was contested upon the ground that the will was not executed according to the laws of France, where the contestants alleged that the •testatrix was domiciled at the time of her death. The testatrix and her deceased husband, John Wurtz, were native-born citizens of the United States. They resided together in his house, corner of Eleventh street and Fifth avenue, in the city of New York, for many years prior to the year 1859, when they both went to Europe for the benefit of their health. On their departure they left their house and furniture, and other property in it, unoccupied, until they should return to occupy it. Mr. Wurtz died in Borne, in 1861, leaving a will, which was admitted to probate in New York, as a will of real and personal property, whereby he devised all his residuary estate to Mrs. Wurtz absolutely. At the time of Mr. Wurtz’ death the decedent was an invalid, and so continued until her death in January, 1871. The facts bearing upon the question of domicil are sufficiently stated in the opinion.</p> <p>■The surrogate held that she had not lost her domicil in New York, and admitted the will to probate.</p> <p>It was proper to assume Nice to be the residence of the testatrix at the time of her death. (Story’s Con. of Laws, 44, Rule 6; Hagg. Consist., 374, 437; 2 Kent’s Com., 532; Bruce v. Bruce, 6 Bro. P. C., 566; 2 B. & P., 230, note; Ennis v. Smith, 14 How. U. S., 423; Hegeman v. Fox, 31 Barb., 475.) The law of the domicil at the time of the death of the testatrix must govern the execution of the will as far as the personal property is concerned. (2 Edm. R. S., 69; Isham v. Gibbons, 1 Bradf., 70 ; In re Cath. Roberts’ Will, 8 Paige, 520; Moultrie v. Hunt, 23 N. Y., 408.) A fixed and permanent residence or domicil in a State is essential to the character of citizenship. (Prentiss v. Brennan, 2 Blatch., 162; The Pizarro, 2 Wheat., 227; Butler v. Farnsworth, 4 Wash. C. C., 101.) Becitals of domicil in a deed or will and declarations thereof are not conclusive, but may be rebutted by proof that the actual domicile was elsewhere. (Gilman v. Gilman, 52 Me., 165; In re Somerville, 4 Ves., 750; Attorney-General v. Kent, 1 H. & C., 12; Butting v. Thornton, Addams, 19; Whart. on Int. Law, § 61; Hegeman v. Fox, 31 Barb., 475 ; Siliman v. Moseby, 14 La. An., 710; In re Steer, 3 H. & N., 594; Topp v. Wood, 34 L. J. Chan., 211; Isham v. Gibbons, 1 Bradf., 69; De Bonneval v. Be Bonneval, 1 Curt., 856; Moore v. Budal, 4 Hagg., 346.)</p> <p>The domicil of origin is not lost until a new one is acquired. (Graham v. Public Admr., 4 Bradf., 127,128.) Deceased did not lose her domicil of origin by her long residence in Europe. (Isham v. Gibbons, 1 Bradf., 69; White v. Brown, 1 Wal., Jr., 217; Attorney-General v. Countess de Wahlstadt, 3 H. & C., 374; Udny v. Udny, L. R., 1 H. L.; Scotch App., 441.) There was no evidence to establish that deceased had any right as a domiciled citizen in France. (Code Civil, bk. 1, tit. 1, chap. 1, §§ 7-16.)</p>

Appeal by the village of Greenbush from an order of General Term of the Supreme Court in the third judicial department, affirming an order of Special Term taking a parcel of land in said village, known as “ The Park,” for the use of the Boston and Albany Railroad Company. The trustees of said village were made parties to the proceedings.

This was an action to foreclose a mortgage. On the 6th of July, 1871,• the defendant, William A. Loder, executed the bond and mortgage described in the complaint to Julius F. Miner, to secure the payment of $1,500.

Appeal by defendant, Henry A. Thaule, from judgment of the Superior Court of the city of Hew York affirming a judgment in favor of plaintiff,' entered upon the decision of the court at Special Term. This was an action to foreclose a bond and mortgage given by defendant Phillips to secure the payment of $4,000, with interest at six per cent.

This action was brought to obtain a construction of the last will and testament of Ebenezer Ely, late of Rochester, deceased. Said Ely died on the 25th of March, 1870. His will, after giving certain specific legacies, contained the following clause: “ Fifth.

This action was brought to redeem certain lands in Jefferson county from sale under mortgage. It was originally brought by plaintiff’s testator, Alfred Bosworth. Upon his death plaintiff was substituted. On the 1st February, 1847, George C. DeKay owned 3,500 acres of land, including the lands in question, in Jefferson county, and on that day he mortgaged it to Fitz Green Halleck for $15,000. January 15,1849, the mortgagor died.

This was an action against defendants as partners to recover the value of certain ice-houses, ventilators, etc., constructed by the plaintiffs for the proprietors of the Westminster Hotel, doing… Held: that as the record did not show that this position was taken before the referee, and there being no request to find, and no finding of facts upon which the estoppel could be based, the court could not act upon the evidence and reverse upon facts not found.

On the 18th October, 1871, one Edwin D. Barber being indebted to defendant in the sum of $36,439.34, sold and assigned to it certain personal… Held: that the assignment was' a fixed arrangement for plaintiff’s benefit, which could not be changed without payment of the plaintiff’s debt, so far as covered by it, and that the action was maintainable (see Ga/msey v. Rogers, 47 N. Y., 233), but that defendant was not liable beyond the $600, with interest from the date of the…

This was an appeal from judgment of the General Term of the Supreme Court in the first judicial department, affirming a decree of the surrogate of the county of New York, admitting to probate an… Held: that while the facts appearing were not sufficient to satisfy them that the will was a forgery, yet they were not sufficient to convince them of its genuineness, leaving the matter in doubt and uncertainty, and therefore that it should be sent to a jury for investigation.

<p>A motion to set aside the report of a referee, on the ground of improper conduct on his part, is addressed to the discretion of the court. The action of the Special Term may be reviewed by the General Term, but the right of appeal there ends.</p>

This was an action to foreclose a mortgage executed by defendant to James Eeill as security for her bond of $3,000. Held: that this action was not barred by the pendency of that, commenced by Sinclair, as the causes of action are not the same and the effect sought for in this suit, i. e., the foreclo- ' sure of the mortgage, could not be had in the other.

Íhis was an appeal from an order of General Term affirming a Special Term order, denying motion on the part of defendant to vacate an order of arrest. Held: that an order of arrest was improper in such action.