Volume 54 — New York Reports

Appeal by defendants, John Dickerson and Edgar Reed, from judgment of the General Term of the Supreme vCourt in the second judicial district, affirming a judgment in favor of the plaintiffs, entered upon a verdict, and affirming an order denying a motion for a new trial. (Reported below, 52 Barb., 349.) The action was brought for alleged fraud and deceit in the sale of lands.

This action was brought to recover $233.31 rent for certain premises in the city of Brooklyn, known as Mo. 13 Cheever Place, from the 1st day of August, 1866, to the fifteenth of Movember in the same year.

<p>In the absence of fraud every instrument is to be construed so that it may have effect according to the intentions of the parties, if that can be done consistent with the rules of law.</p> <p>One who has a contract for a pledge, ineffectual for want of delivery of the goods, may obtain a subsequent delivery and thus validate the pledge, even as against an intermediate creditor. Nothing but the intervention of fraud or the acquiring by a creditor of a specific right to a lien upon the thing pledged will prevent the perfecting of the pledgee’s right. The transaction is not fraudulent per se, and its validity is a question of fact for a jury.</p> <p>Such a contract is not a chattel mortgage, and is not affected by the statute declaring unfiled chattel mortgages absolutely void as against creditors.</p>

The facts pertinent to the questions presented appear sufficiently in the opinion. Appeals may be taken to the General Term from judgments and orders entered upon the direction of a single judge of the same court in all cases. (Code, §§ 348, 349; Wilkinson v. Tiffany, 4 Abb. Pr., 98.) Defendant’s answer was not frivolous.

The action was brought by the plaintiffs to recover the value of a quantity of nutmegs and tobacco. Plaintiffs had come in possession, and claimed to be owners, as assignees, under a voluntary assignment to them by a firm who had been doing business at Belleville, in Canada West, and become insolvent for the benefit of their creditors.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial district, affirming a judgment in favor of the plaintiff entered upon the decision of the court at Special Term.</p> <p>This action was brought to restrain defendants from using certain premises, situate in the city of Brooklyn, for the manufacture of resin oil.</p> <p>In 1852 the plaintiff conveyed to. one Worcester certain lots of land, situate in the city of Brooklyn, by warranty deed signed by the grantor alone with full covenants, which deed contains the following clause: “And the said party of the second part for himself, his heirs and assigns, doth hereby covenant with the said Atlantic Dock Company and their successors that neither the said party of the second part, nor his heirs or assigns, shall or will at any time hereafter erect upon any part of said lots any building except of brick or stone, with roofs of slate or metal, or any manufactory of gunpowder, glue, varnish, vitriol, turpentine, or any brewery, distillery, slaughter-house or other noxious or dangerous trade or business.”</p> <p>This deed was properly recorded. Five of these lots have, through several mesne conveyances, come to the defendants, who took them by a warranty deed with full covenants, not containing the above-mentioned clause in 1863.</p> <p>• They had possession of the lots before they obtained their deeds,- in 1861, and erected thereon a building or distillery for distilling resin oil, and have ever since carried on that business.</p> <p>The plaintiff claimed that such use of the premises was in violation of the covenants contained in.the deed and commenced this action to restrain the defendants from such use, praying for a perpetual injunction. The defendants denied that they had violated the covenants; the court held that defendants’ business in running said distillery on said premises was dangerous, and decided, as a conclusion of law, that such business was in violation of the covenants contained in the deed, and granted the relief prayed for.</p> <p>Unless Worcester signed and sealed the deed to him from plaintiff, he is not bound by its covenants. (Trustees of Hocking ,Co. v. Spencer, 7 Ohio St., 2,149; Whart. L.D., “ Covenant; ” Gole v. Nixon, 6 Cow., 448; Hinsdale v. Humphrey, 15 Conn., 531; Platt on Co., 18; 2 Co. Lit., by Thomas, 187; Burnett v. Lynch, 5 B. &., 589 ; Torrey v. Bk. of Orleans, 9 Paige, 649; Blyer v. Molhalland, 2 Sand. Ch., 478; Rawson v. Copland, 2 id., 251; Trotter v. Hughes, 2 Kern., 78; Halsey v. Reed, 9 Paige, 446; Curtis v. Tayler, id., 436; Ferris v. Crawford, 2 Den., 595; King v. Whitby, 10 Paige, 465; Belmont v. Coman, 22 N. Y., 436 ; Burr v. Beers, 24 id., 278; Ricard v. Sanderson, 41 id., 179; Bower v. Bell, 20 J. B., 338; Garnsey v. Rogers, 47 N. Y., 233.) The rights plaintiff claims could only be granted by the grantee by an instrument signed and sealed by him. (3 R. S., 5th ed., 220, 230 ; Gale on Easements, 5 ; Worrall v. Munn, 1 Seld., 229.) Defendants have not violated the covenant; their factory is not a distillery. (Worcester’s Dic., ed. 1860; id., ed. 1854; Ure’s Die., Art. “ Distilling; ” At. D. Co. v. Libby, 45 N. Y., 499.) Plaintiff’s laches prevent its seeking a remedy in a court of equity. (Dana v. Valentine, 5 Met., 8; Weller v. Smeaton, 1 Cox, 102; Reid v. Gifford, 6 J. Ch., 19 ; B. Canal Co. v. Lloyd, 15 Ves., 54; Benhart v. Houghton, 27 Beav., 425, 431; Whitney v. U. R. R. Co., 11 Gray, 349; Sinzee v. Mixer, 101 Mass., 512, 530.)</p> <p>The acceptance by Worcester of the deed from plaintiff binds him and his assigns the same as if he had executed it. (Co. Lit., 230, Butler’s Bote [1] ; Green v. Horan, 1 Salk., 197; Taylor’s L. and T., § 245 [4th ed.]; Trotter v. Hughes, 2 Kern., 74; Halsey v. Reed, 9 Paige, 446; Curtis v. Tyler, id., 433; King v. Whiteley, 10 id., 465; 2 Sand. Ch., 251; Burnett v. Lynch, 5 Barn. & Cress., 596 ; Finley v. Simpson, 5 N. J., 311-332; 3 Washburn on R. P., 280 [3d ed.]; Burbank v. Pillsbury, 48 B. H., 475 ; Spaulding v. Hallenbeck, 35 N. Y., 207; Dorn v. Harrahan, 101 Mass., 398; Thorn v. Keokak Canal Co., 48 N. Y., 353.) Defendants were constructively forewarned that all obligations and duties the deed required of Worcester attached to them. (Dick v. Balch, 8 Pet., 30; Sturdevant v. Hall, 1 Sandf. Ch., 419; Hale v. Nelson, 23 Barb., 88; Belmont v. Cowan, 22 N. Y., 435; Tallmadge v. E. River Bk., 26 id., 105 ; Bishop v. Elliot, 11 Exch., 113.) The nuisance' clause in the deed covers any other articles whose manufactory is equally as dangerous or noxious as those specially mentioned therein. (Iggulden v. May, 7 East, 241; Davis v. Lyman, 6 Cow., 252; Cullen v. Butler, 5 Maule & Selw., 461; 3 Kent, 371 [7th ed.); 3 S. R., 87; 4 id., 228; Corning v. McCullough, 1 Con., 69; Aiken v. Wasson, 24 N. Y., 484; Broome’s Leg. Max., 450.) Plaintiff is entitled to have this covenant maintained, defendants’ business being dangerous and noxious. (Dodge v. Lambert, 2 Bos., 570 ; Howard v. Ellis, 4 Sand., 369; Steward v. Winters, id., 589; Barrow v. Richards, 3 Edw., 96 ; S. C., 8 Paige, 351; Whitney v. U. R. R. Co., 23 Bost. L. R., 303; 3 Com. Dig., 263; Cor. A., 2; Hoytv. Carter, 19 Barb., 212; Bleeker v. Bingham, 3 Paige, 246; Tulk v. Maxhay, 2 Phil. Ch., 174; Biddle v. Ash, 2 Ashm., 221; Mann v. Stephens, 15 Sim. Ch.; Cole v. Sims, 23 Eng. L.; 8 Eq. R., 584; Miller v. Hill, 3 Paige, 254.)</p>

The firm of Brander & Hubbard was formed in Hew Orleans in May or June, 1860, and was composed of the plaintiff, Hubbard, and James S. Brander, Jr., as general partners, and James S. Brander, Sr., as partner in commendam. It continued through that year and until March 27, 1861, when it was dissolved by an “authentic act,” so called, passed according to Louisiana law, before a notary public. Hotice of such dissolution was published in the newspapers of Hew Orleans.

On the 9th day of January, 1864, one Forman Fiver, a resident, landowner and tax-payer in the town of Copake, Columbia county, made application to the commissioner of highways of said town for the laying out of a road therein through the lands of Abram Odie, among others. A jury of freeholders of said town was convened, who, on the 18th day of January, 1864, certified that said highway was necessary and proper. Wm.

Appeal by Horace Wells from, an order of the General Term of the Supreme Court, in the fifth judicial district, affirming an order at Special Term, adjudging said Wells to be guilty of misconduct in the non-payment of a tax, and imposing a fine therefor.

<p>Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of New York, affirming a judgment in favor of plaintiff entered upon a verdict.</p> <p>This action was brought to recover the sum of §561.91, with interest, on an account stated.</p> <p>The answer bets up several defences, and among them that the action has been removed to the Circuit Court of the United States. The facts appear sufficiently in the opinion.</p> <p>Upon the filing of defendant’s petition and the tendering of his bond, the State court ceased to have jurisdiction. (Act of Sept. 24,1789,1 Stat. at Large, 73, § 12 ; Stevens v. Phoenix Ins. Co., 41 N. Y., 149; Gordon v. Longest, 16 Pet., 97.) A State court has not power upon technicalities to deprive the Federal, courts of a jurisdiction conferred by the Constitution and laws of the United States. (U. S. Const., Art. 3, § 2; Judiciary Act of 1789, 1 Stat. at Large, 73, § 12; Gordon v. Longest, 16 Pet., 104; Kanouse v. Martin, 15 How., 198; Matthews v. Lyall, 6 McL., 13.)</p> <p>The State court has power to regulate, by its own rules, the removal of cases into the Federal courts. (1 Stat. at Large, 73, § 12 ; N. Y. Piano Co. v. N. H. Stbt. Co., 2 Abb. Pr. [N. S.], 357.) Notice of the application for removal should'have been given to plaintiff. (Disbrow v. Driggs, 8 Abb. Pr., 308, note; Cooley v. Lawrence, 5 Duer, 605; 2 Hall, 649.) A notice of appearance must be served on plaintiff. (Bristol v. Chapman, 34 How. Pr., 140; Ayres v. West. R. R. Co., 48 Barb., 132.) The bond was properly excluded from evidence. (Hart v. Seixas, 21 Wend., 40-49; Judah v. Stagg's Ex'rs., 24 id., 238, 239 ; People ex rel. Bean v. Bussel, 49 Barb., 351; Robinson v. Potter, 43 N. H., 188-194.)</p>

This action was brought againt defendants, as members of the firm of Brander, Chambliss & Co., to recover upon the indorsements of that firm upon two promissory notes. The copartnership was formed in March, 1861, having its place of business in Mew Orleans. The notes were indorsed by the defendant, Matthews, in the firm name on the 26th or 27th April, 1861. Plaintiff was a resident of the city of Mew Orleans prior to and during the war.

This action was brought to determine a claim of title to certain real property' in the city of Brooklyn. Theophilns Hardenbrook, late of that city, on the 10th day of October, 1842, made and executed his last will and testament.

This action was on a policy of insurance against fire from October 1, 1864 (one year), issued by defendant.

This action was brought to recover the possession of a quantity of household furniture and other personal property, of the value of $10,000. The property, on the 26th of May, 1866, belonged to one Christopher Slater. The plaintiff makes title to it by virtue of a chattel mortgage, executed by Slater to the plaintiff, on that day, to secure the payment of a pre-existing debt of $12,000, due from Slater to him.

(Reported below, 46 Barb., 171.) This action was brought on the 13 th day of February, 1864, against the defendant, as first indorser of a promissory note, made by one Hughston, bearing date on the 17th day of April, 1857, for $1,000, payable ninety days after its date, to the order' of the defendant. One Matthew Miller was second indorser. The note was discounted by the Bank of Norwich, and was held by that bank at maturity, and was duly protested for non-payment.

(Reported below, 53 Barb., 258.) This action was brought by plaintiff as the assignee of one John Gamel, to recover the sum of $402.19, alleged to have been received by defendant for the use of Gamel.

<p>Appeal from judgment of the General Term of' the Supreme Court, in the fourth judicial district, affirming a judgment in favor of the plaintiff, entered upon the decision of the court at Special Term.</p> <p>This action was brought to set aside a conveyance to defendant by Andrew Moyer, on the, ground that it was fraudulent as against plaintiff, he having judgment, which, as alleged, was in equity, prior in its effect to defendant’s title.</p> <p>The complaint alleged that Andrew Moyer, the defendant’s grantor, was indebted to the plaintiff on a promissory note made by him and another, in 1851, for $500, and interest. That the plaintiff recovered judgment against the makers in the Supreme Court, which was entered and docketed in Montgomery county, November 7th, 1863, for $564.35. That execution was issued against the judgment debtors, to the sheriff of that county, wherein they resided, and duly returned, wholly unsatisfied. That the defendant’s' grantor died intestate, July, 1865, aged eighty-eight years, having no means or property wherewith to pay this, his only debt left unpaid. That at the time the note was made, the deceased owned a certain wood lot of about seventeen acres, situated in said county, and continued 'to until about 1862, when he conveyed it to his son, the defendant, without consideration, for the purpose of defrauding the plaintiff, and hindering and delaying him in the collection of his debt, the lot then being worth $1,500, and the defendant then knowing of the existence of the plaintiff’s debt, and that this lot was the only means that his grantor then had for the payment thereof. The defendant, by his answer, alleged that his grantor was only surety on the note, denied knowledge or information sufficient to form á belief of the judgment or execution, or of its return, or that his father was possessed of no assets, and left but the plaintiff ’s debt unpaid; admitted the conveyance, that the lot was worth $1,000, and that the defendant had been often requested to pay plaintiff’s debt, but refused so to do.</p> <p>A reference was ordered to take and report the evidence, and, upon the report of the referee, the cause was brought to trial at a Special Term of the Supreme Court, and the court found substantially the facts alleged in the complaint, and also found, as conclusion of law, that the lien of the plaintiff’s judgment upon the real estate in question was prior in its effect to the defendant’s conveyance, and ordered judgment to be entered accordingly, with costs. ' •</p> <p>Other facts appear in the opinion.</p> <p>Plaintiff’s right to relief depended upon his having exhausted his legal remedies without having had his judgment satisfied. (Child v. Brace, 4 Paige, 399 ; Wheeler v. Hearmans, 3 Sand. Ch., 597; Van Cleef v. Sickels, 5 Paige, 505; Hope v. Brinkerhoff, 3 Edw. Ch., 445; Storms v. Buggles, Clarke Ch., 148; Willis v. Moore, id., 152; Dunlevy v. Tallnadge, 32 N. Y., 459; Voorhees v. Howard, 4 Keyes, 371.) The judge erred in not finding that Andrew Moyer had more than enough personal property to pay the debt of plaintiff. (Hind's Lessee v. Longsworth, 11 Wheat., 199 ; approved 10 N. Y., 230; Carpenter v. Roe, 6 Paige, 62; Babcock v. Eckler, 24 N. Y., 628 ; Dygert v. Reymerschnider, 32 id., 648.)</p> <p>The evidence sustains the finding of the justice at Special Term that the land was conveyed to defendant to defraud plaintiff, and without sufficient consideration; and, hence, the deed was void as against plaintiff’s judgment. ( Warner v. Blackman, 4 Keyes 487, § 1, 506 ; Dygert v. Remerschnider, 32 N. Y., 636, 649, and cases cited.) It will be presumed he found all other essential facts that the evidence would authorize. ( Valentine v. Conner, 40 N. Y., 248.) Plaintiff would have been entitled to relief against defendant, even if his claim had not been put in judgment. (Loomis v. Tifft, 16 Barb., 541.) Defendant is a trustee of the land for the creditor over and above the consideration paid, even if he had no notice of the debt or of any fraudulent intent. (Campbell v. E. R. Co., 46 Barb., 553 ; Boyd v. Dunlop, J. Ch., 478 ; Bigelow v. Ayrault, 46 Barb., 149 ; Dunn v. Chambers, 4 id., 376, 381, 382 ; Waterbury v. Sturtevant, 18 Wend., 366.) The conveyance was void as to existing creditors. (Holmes v. Clark, 48 Barb., 237; Morris v. Ward, 36 N. Y., 587, 597.) The exceptions made at the close of the case to the findings and decisions point to no specific error, and are too general to authorize a review by this court. ( Wheeler v. Billings, 38 N. Y., 263 ; Newell v. Doty, 33 id., 83,93 ; Graham v. Chrystal, 2 Keyes, 21.) The exceptions to the refusals of the justice to find, as requested by -defendant’s counsel, present nothing for review here. (Leelu v. Field, 47 N. Y., 407; Priest v. Prince, 3 Keyes, 222, 224; Brooks v. Van Every, id., 27.)</p>

This action was brought originally in Justice’s Court to recover of the defendant penalties to the amount of twenty-five dollars for obstructing a highway in the town of Big Flatts, in Chemung county, by the erection of fences upon and across the same. The defendant denied the allegations in the complaint and set up, also, as a defence, that the place where the acts complained of were committed was not a highway, and that he was the owner thereof in fee simple.

Various appeals are presented in this case from, orders of the General Term of the Supreme Court, in the sixth judicial district, the nature of which, and the facts in reference thereto, appear sufficiently in the opinion. The order made at Special Term reversing and overruling the order of the judge who tried the cause, was irregular and void.

<p>An execution in usual form reciting a judgment of a county court, and signed by an attorney, was delivered to defendant as sheriff, for collection. The execution was issued upon a transcript of a justice’s judgment filed and docketed in the county clerk’s office. Held, that conceding the execution to be void because not signed by the clerk as required by section 64 of the Code, yet, inasmuch as nothing appeared therein to notify the sheriff that the judgment was originally a justice’s judgment, the process was sufficient to protect him in levying upon and holding the property of the judgment debtor.</p> <p>It seems, however, that the signing of such an execution by the clerk, is a mere ministerial act ; and whether the lack thereof is a curable irregularity or renders the execution void, quere.</p> <p>Where, after property has been duly levied upon by a sheriff, it is removed by the judgment debtor out of the county, the former has a right of possession as against the latter and every one claiming under him, and upon obtaining peaceable possession, although out of the county, he is entitled to rely on his levy as a defence against any one seeking forcibly to deprive him of it and may defend his possession by necessary force.</p> <p>The sheriff, however, has in such case no authority to recover possession forcibly, as he has no power as sheriff, out of his county.</p>

This action was brought by the plaintiff to restrain the defendants from prosecuting more than one of seventy-seven actions, which, as the complaint alleged, had been commenced by them against the plaintiff in the Justice’s Court in the city of Hew York for the first judicial district, until one of such actions could be finally heard and determined.

This action was brought to recover for the alleged wrongful taking and conversion of certain logs and lumber. The defendant justified the taking under an attachment granted by the county judge of Chautauqua county.

This action was brought to recover damages for the nondelivery of all the logs specified in the following contract: “ Deposit, FT. Y., April 30, 1864. “ Contract between JohnLuscomb and Joseph M. Hall, of the first party, and Simon Bigler, of the second party. “ Said Luscomb and Hall do agree to deliver, in the Susquehanna river, at Binghamton, in rafts, from 150 to 200,000 feet of pine logs, above the Pratt & Tyler saw mill.

This action was brought under the revenue act of 1864, to recover duties imposed by section 94 of said act, upon a quantity of pig-iron alleged to have been contracted to defendant before the passage of the act, and to have been delivered thereafter. The facts presented by the case appear sufficiently in the opinion..

(Reported below, 49 Barb., 382). This action was brought to recover damages for the refusal of defendant to deliver, and for the conversion of twenty , bonds of the San Francisco Water-works Company of $500 each, alleged to have been purchased by defendant as agent for John Simpkins, plaintiffs’ testator.

This action was brought to remove the lien of an assessment from certain premises owned by plaintiffs, situate in the city of Hew York. The complaint alleges the following facts. On the 15h of June, 1866, the defendants owned certain premises described, situate in the city of Hew York, fronting on Fourth avenue, and on that day granted and conveyed the same to Brewster and others, and the deed was duly recorded.

directing judgment upon a verdict. This action was brought upon a policy of insurance, issued by defendant, under date of October 19th, 1864, to the Parmelee Piano Forte Company, whereby the defendant insured the said company, during one year, against loss by fire, to the amount of $2,500, on their stock of piano fortes, etc., etc., “ contained in the three-story and basement brick' building occupied by them for the manufacture of piano fortes, and situate at Ho. 9 Howard…

<p>A through contract for the transportation of goods was made hy a transportation company, containing a clause exempting it from liability “for loss or damage by fire, or other casualty while in depots or places of transhipment,” certain other exemptions were contained therein, in reference to which the contract made express provision for the exemption of connecting lines also. The goods were received by defendant, a connecting carrier, it receiving from the contracting carrier a portion of the freight, and while in its depot, were destroyed by fire without negligence on its part. In an action to recover the loss,—held, that as defendant was but simply aiding the contracting carrier in the performance of its contracts and acting as a subordinate, it was entitled to the benefit of the exemption from liability for loss by fire ; that the express exemption from other liabilities, contained in the contract, did not change the rule in this respect, and that plaintiff, therefore, was riot entitled to recover.</p>

This action was brought to foreclose a mortgage executed by one Edward Murphy, since deceased, on or about the 14th day of April, 1859, upon certain premises situated in the city of Mew York, to secure to the plaintiff the payment of $1,200 and interest, in one year from that date, which mortgage was recorded in the office of the clerk of .the city and county of Mew York, on the eighteenth day of the month of. its date.

The facts sufficiently appear in the opinion. The referee had no power after evidence had been introduced to dismiss the complaint for want- of prosecution. (Code, §§ 258, 274, sub. 4 ; Holmes v. Slocum, 6 How. Pr., 217.) The referee had no power to dismiss the complaint upon the facts in the case for want of prosecution. (Holmes v. Slocum, 6 How.

¡New York, in favor of defendants, entered upon an order denying motion for'a new trial and directing judgment upon an order of the court at circuit dismissing plaintiff’s complaint. This was an action of ejectment, brought to recover certain premises situate in the city of New York. The facts sufficiently appear in the opinions. An assignment for the benefit of creditors, may be either voluntary or in invitum.

This was an action brought against defendant, as common carrier, to recover for the loss of certain goods transported by it. On the 11th day of April, 1870, the plaintiff, then a resident of Battle Creek, Michigan, removed to Greenfield, Saratoga county, four miles distant from Saratoga Springs, and on that day delivered to the Michigan Central Railroad Company, at Battle Creek, certain goods, in boxes “ marked Emily Pelton, Saratoga Springs, hi.

This was an action upon accounts assigned to plaintiff. The defence was a denial, payment and various set-offs. The evideuce was conflicting upon the trial upon the issues presented. The defendant’s counsel presented various requests for the court to find, embracing all the questions in controversy.

This action was brought to recover damages for being dispossessed of certain premises in the city of New York. In 1858, the Wheeler & Wilson Manufacturing Company became the lessees of the first floor and basement of the premises known as No. 505 Broadway, in the city of New York, for several years, ending May 1, 1867. The Manufacturing Company assigned their lease to Scott & Baldwin, May 1, 1864.

This was a proceeding under the mechanic’s lien law of 1854. (Chap. 402, Laws of 1854, p. 1086). The materials and labor were furnished by the plaintiffs to one Miner Grant, who, as contractor, built a house on the land of defendant, situate in Cortland county.' The notice of lien was duly filed with the clerk of said county on the 13th day of December, 1869. These proceedings were commenced March 12th, 1870. Trial was had on the 24th day of December, 1870.

This action was brought to recover damages for injuries received by plaintiff while a passenger upon defendant’s! stage. Plaintiff was a passenger upon a stage sleigh in temporary use by the defendants, in consequence of a heavy snow which blocked its track, so that cars could not run. He was riding upon a fender or guard upon the left-hand side of the sleigh, standing thereon and supporting himself by holding on to a rail running along upon the sides of the seats.

<p>Appeal from order of the General Term of the Supreme Court, in the first judicial department, reversing a judgment in favor of the defendant, entered upon the report of a referee and granting a new trial.</p> <p>The action was brought by plaintiffs as endorsees upon a promissory note of $679.20, against the defendant as maker. The defense was, (1) that the note had been altered after its delivery by the insertion of a place of payment; and (2) that it was not stamped at the time it was made and delivered, the original parties to it having expressly agreed that it should not be stamped, but should be merely a receipt or memorandum of the transaction between them, out of which the giving of the note arose. The referee found, in substance, that plaintiffs were holders of the note before maturity in good faith and for value; that one Istel gave defendant two drafts on Germany to collect for him, and at his request defendant gave him the note in question, which they agreed should not have the force of a promissory note but should be merely a memorandum of the transaction growing out of defendant’s undertaking to collect the drafts. In order to effect this object the defendant insisted that the instrument should not be stamped, saying to Istel that, “ with no stamp on, it was of no value only as a receipt.” Istel promised not to use the note but to return it to the defendant in case the drafts were not paid. When the note was delivered to Istel it was in the following form:</p> <p>“Hew York, September 30th, 1868.</p> <p>“ Three months after date I promise to pay, to the order of myself, six hundred and seventy-nine dollars and twenty cents at value received.</p> <p>“H. DOLL,”</p> <p>with Mr. Doll’s name on the back thereof. Shortly after the delivery of the note, Istel stamped the same, and, between the words “ at ” and “ value received,” inserted “ The Bull’s Head Bank of Hew York/’ and negotiated the same. The referee held that the defendant was not liable upon the note because of the insertion of the place of payment, and also, because the note was not stamped when he delivered it, and he ordered judgment in favor of the defendant. Judgment ■' was entered accordingly.</p> <p>'The insertion of the place of payment in the note was such an alteration as avoided it against a bona fide holder. (Byles on Bills, 253; Chitty on Bills, 182; 2 Parson’s Bills & Hotes, 546, 547; Burchfield Y. Moore, 3 El. & B., 683; Master v. Miller, 1 Smith’s L. C„ 458.) It is the duty of the holder of the note not only not to alter it himself, but to ’ preserve it from alteration by other persons. (Davidson v. Cooper, 11 Mees & Weis., 778, affirmed 13 M. & W., 343; Burchfield v. Moore, 3 E. & B., 683; Master v. Miller, 1 Smith’s L. C., 458; Nazro v. Fuller, 24 Wend., 374; Southwark Bk. v. Grass, 35 Penn, St., 80 ; Sturges v. Williams, 9 Ohio St., 443; Woodward v. Bk. of N. A., 19 J. R., 391, 419; Griffin v. Bice, 1 Hilt., 184; Mead v. Mer. Bk., 25 N. Y., 143.).. The alteration gave the note a different legal effect. (Holmes v. Trumper, 22 Mich., 527; Bruce v. Westcott, 3 Bosw., 374; Martin v. Ballou, 13 id., 119; Com. Bk., etc. v. Patterson, 2 Cranqh., 346. The delivery of the note with the blank in it did not authorize it to be filled up. (Simpson v. Stackhouse, 9 Penn. St., 186, 3 R. S., 951 [5th ed.].) Actual authority was necessary to authorize the filling of the blank. (Stahl v. Buger, 10 S. & R., 170; Mitchell v. Ringgold, 3 Har. & J., 152; Boyd v. Brotherson, 10 Wend., 93 ; Clute v. Small, 17 id., 237.)</p> <p>To avoid an instrument for the want of a proper stamp, an intent to evade the requirements of the statute must be affirmatively shown. (Beebe v. Hutton, 47 Barb., 192; Vorebeek v. Roe, 50 id., 302; Vaugan v. O’Brien, 57 id., 492; Holyoke Mach. Co. v. Franklin Paper Co., 97 Mass., 150; N. H., ete., Co., v. Quintard, 1 Sweeny, 89; Quinn v. Lloyd, id., 253; Bur-nap v. Losey, 1 Lans., 111.) The act of congress prescribing a penalty for the neglect to stamp certain instruments, is not obligatory on the State courts. (Carpenter v. Snelling, 97 Mass., 452; People ex rel. v. Gantes, 43 N. Y., 40; Moore v. Moore, 47 id., 467; Clemens v. Conrad, 19 Mich.; Sporer v. Eifler, 1 Husk. [Tenn.], 633; Green v. Holway, 101 Mass., 243 ; 1 R. S., 768, §§ 1-4.) The act, so far as it relates to promissory notes, has been-repealed, and, being penal, cannot be enforced even as to notes made while it was in force. (Butler v. Palmer, 1 Hill, 324; Cent. Bk. v. Em. 8., ete., Co., 26 Barb., 24; Washburn v. Franklin, 35 id.; 599; Curtiss v. Leavitt, 15 N. Y., 85-152, 254; Act of Congress, June 6, 1872, § 30.) The addition to" the note of the place of payment, did not vitiate it in plaintiff’s hands. (Mitehell v. Culver, 7 Cow., 336; Mechanics’ Bk. v. Schuyler, id., 337; Boyd v. Brotherson, 10 Wend., 93; Clute v. Small, 17 id., 238; Van Dusen v. Howe, 21 N. Y., 531, and cases cited; Paige v. Morrel, 3 Keyes, 117; Kitchen v. Place, 41 Barb., 465; Garrard v. Hadden, 67 Penn., 82; Spitter v. James, 29 Ind; Flint v. Craig, 59 Barb, 319; Chemung Canal Bk. v. Bradner, 44 N.. Y., 680; Am. L. Reg., Oct., 1870; Edwards on Bills, 92, 95; Mich. Ins. Co. v. Leavenworth, 30 Vt., 11; 1 Parsons on Bills, 109.)</p>

This action was brought against defendant as a common carrier to recover for the loss of a trunk and contents. The facts are sufficiently stated in the opinion. The court directed a verdict for defendant. Defendant’s responsibility is the same in all respects as that of a common carrier. (Belger v. Dinsmore, 51 Barb., 69.) This liability does not rest on his contract, but is imposed by law.

This action was brought to recover for injuries sustained by plaintiff by coming in collision with defendants’ horse and cart upon Second avenue in the city of blew York, through the alleged negligence of defendants’ cartman. The facts sufficiently appear in the opinion. The question of negligence was one of law.

The facts and nature of the action are sufficiently stated in the opinion of the chief commissioner. Defendant being an infant and this being' an action on a contract to recover the contract price of the goods sold with interest, the complaint should have been dismissed.

plaintiff entered on a verdict, and affirming an order denying a motion for a new trial. This action was brought on two policies of fire insurance issued by defendant to plaintiff. The facts sufficiently appear in the opinion. At the close of the evidence upon the trial defendant’s counsel requested the court to direct a verdict for defendant. This the court refused to do, and defendant excepted.

<p>Appeal from judgment of the General Term of the Court of Common Pleas, for the city and county, of Hew York, affirming a judgment entered in favor of plaintiff upon" the report of a referee.</p> <p>This action was brought against the defendants, innkeepers, to recover the value of certain articles stolen from the plaintiff’s trunk, in the Delavan House, in the city of Albany, while the plaintiff was a guest at said hotel (the defendants then being proprietors and keepers thereof), under the following circumstances:</p> <p>On July 28th, 1863, the plaintiff, with her husband, en route from Trenton Falls to Saratoga, stopped at Albany, and put up at the Delavan House, where they arrived at about three o’clock in the afternoon. They were immediately shown to a room, to which the plaintiff’s trunk was also taken by one of the employes of the hotel. Dinner was then being served, the dinner hours of the hotel at that time being from two to four o’clock. The trunk was opened for the- purpose of taking out a collar and sleeves, again shut and locked by the plaintiff’s husband, who put the key in his pocket. The plaintiff and her husband having first locked the door, and taken out the key, which was placed in the pocket of the husband, went to the dining-room, on the same floor to get their dinner, before the dining-room should be closed. They were at dinner about twenty minutes, and returned directly from the dining-hall to their own room. On reaching their room the door was found to have been unlocked in their absence, the trunk broken open, the nails which attached the lock to the trunk having been cut, and the lock part detached from the trunk and hanging to the lock. The articles described in the complaint, consisting of plain bracelets, studs, hair pins, sleeve buttons, etc., being such articles as the plaintiff wore in ordinary dress, and was in the habit of wearing in change with different dresses, of the value in all of less than three hundred dollars, had been abstracted- and were missing. These articles had been placed in a drawer in the back of the trunk, by plaintiff, at Trenton Falls, the trunk was then locked up, and not opened again till its arrival at the Delavan House, when the lock was in perfect order. A Search was instituted, which resulted in the finding by a detective, in one of the servant’s rooms, an iron instrument which fitted in the -place between the lock and trunk. The articles abstracted were never recovered.</p> <p>The referee found as matter of fact, that the said loss occurred without any carelessness or negligence on the part of the said plaintiff, and as a conclusion of law held defendants liable. Other facts appear sufficiently in the following opinion.</p> <p>If a hotel keeper has complied with the provisions of the innkeeper’s act of 1855, he is exempted from liability for any and all loss of money, jewels and ornaments, without regard to negligence in the part of his guest. (Smith’s Ldg. Cases, 311, and cases cited; Hyatt v. Taylor, 42 N. Y., 258.)</p> <p>An innkeeper at common law is liable for all property of his guest brought beneath i, his roof unless lost by the negligence or fraud of his guest,' or destroyed by act of God or the public enemy. (Hulett v. Smith, 38 N. Y., 571, and cases cited.) Unless the guest has been guilty of negligence in complying with the innkeeper’s act of 1855, the innkeeper’s common-law liability remains. (Laws 1855, 774; Bendetson v. French, 46 N. Y., 266.)</p>

Appeal by the plaintiff from an order of the General Term of the Court of Common Pleas for the city and county of New York, reversing a judgment in favor of plaintiff entered on the report of the referee, as against defendants, William Pitt and Charles Pitt.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming a judgment in favor of plaintiffs on demurrer to return of defendants to an alternative mandamus.</p> <p>The mandamus required defendants to proceed forthwith to lay out, open and work a public highway in the town of Marlborough, Ulster county, according to the provisions and requirements of chapter 776, Laws of 1868, or to show cause, etc. Defendants’ return admitted that by the act they were required to lay out the road, but set up certain matters by way of avoidance, the validity of the act was not questioned therein. Plaintiffs demurred to the return. Further facts appear in the opinion.</p> <p>Chapter 776, Laws of 1868, is invalid, because it makes an appropriation of public property for a local purpose and it was not passed by a three-fifth vote. (People v. Allen, 42 N. Y., 378 ; Const, of N. Y., § 14, art. 7; id., § 9, art. 1; 1 R. S., § 3, tit. 4, chap. 7, part 1; Purdy v. People, 4 Hill, 384.) The great cost of working and grading the road excuses the commissioners from attempting the work. (Broom’s Legal Maxims, 174; 3 J. [U. S.] R., 598.) A mandamus will not be awarded against the commissioners when its effect will be to subject them to an action of trespass. (Ex parte Clapper, 3 Hill, 458; People v. Comrs. of Seward, 27 Barb., 94; Moses on Mandamus, 141.) The act of 1872, passed by a two-third vote, takes away all right to mandamus, and its effect is like that of a statute repealing a penalty. (Butler v. Palmer, 1 Hill, 344; Central Bk. v. Empire Co., 26 Barb., 24; Washburn v. Franklin, 35 id., 599; Curtiss v. Lemitt, 15 N. Y., 85-152, 254.)</p> <p>The order appealed from being signed by only two commissioners and not showing that all met and deliberated, or were notified to do so, is void. (1 R. S., 525, § 125.) The statute, under which the commissionei’s are required to act, is a special mandatory statute, and it gives no appeal. (2 Laws 1868, chap. 776, § 1, p. 1739; 1 R. S., 592, § 2.)</p>

<p>The common-law rights of a husband as tenant by the curtesy are not affected by the acts of 1848 (chap. 200, Laws of 1848) and 1849 (chap. 375, Laws of 1849), for the more effectual protection of the property of married women, as to the real estate of the wife undisposed of at her death.</p> <p>Where the wife takes by devise an estate in fee, limited by an executory devise which defeats or abridges the fee in case of the happening of a certain event, the seizin and estate which she has will give the husband curtesy.</p> <p>The husband’s estate is not derived merely out of the estate of the wife, but is created by law, and is tacitly annexed to the gift, and so continues as an incident of the éstate created, notwithstanding the termination thereof by the happening of the specified event.</p> <p>.M., by her will made in 1851, devised certain real estate to her daughter E., her heirs and assigns forever, providing that her son I., who had been absent three years, and was supposed to be lost at sea, should not return; in case he should be living and returned, then he and E. to share ■ equally; and if E. “ should never have any children or child living at her decease,” then the real estate was devised to plaintiff. M. died in 1854; E. married the defendant in 1858, and died in 1861, leaving no child . surviving. One child of the marriage was born, but died prior to the mother. In an action to recover possession of the real estate, held, that ' E. took a fee determinable upon the happening of the specified events, i. e., the non-return of I., and her death without a child surviving ; that the limitation over was good as an executory devise, and there was no valid objection thereto, on the ground of remoteness, nor was there any question but that both the events upon which the executory devise was to take effect had been determined in his favor, as there was such a presumption of the death of I., that his return might be taken to have become impossible before the death of E.; but that defendant had an estate in the land as tenant by the curtesy, and that plaintiff, therefore, was not entitled to recover.</p>

This action was brought to recover the value of two United States bonds, for $1,000 each, payable in 1881, which had been stolen from the plaintiff and purchased by the defendant. They were stolen on the evening of September 12, 1865, and bought by the defendant, in the regular course of its business, on the next day. The facts, so far as they are material, are sufficiently stated in the opinions.

(Reported below, 51 Barb., 45.) This action was brought to foreclose two mortgages, each for the sum of $200,000, made by the Plattsburgh and Montreal Railroad Company, and conveying its railway, corporate and other franchises and equipments, to the same persons, in trust for the benefit of bondholders. , The defendant, Yilas, alleged in his answer, in substance, that the mortgages had never been filed as chattel mortgages, and that the rolling stoolc had, intermediate the…

This action was brought to recover damages for personal-injuries received by the plaintiff while a passenger on the defendant’s road.

This action was brought to recover damages for a personal injury done to the plaintiff, a married woman, by being knocked down and run over by defendant’s horse and wagon, through his alleged careless driving, in one of the streets of the city of Hew York, on the 13th day of April, 1865. The facts appear sufficiently in the opinion of Earl, C. The burden of proof was upon plaintiff to establish that the injury was caused exclusively by defendant’s negligence.

<p>Defendant signed a bill of lading acknowledging receipt of a specified quantity of wheat and containing these words, “ quantity guaranteed.” The consignee, upon arrival, claimed a deduction for “ shortage,” which was allowed by plaintiffs’ agent. In an action to recover the amount so allowed plaintiffs were permitted to prove, 'under objection, by a person engaged in the transportation business, that the words “quantity guaranteed,” according to the custom of the business, meant that the bill of lading was conclusive evidence of the amount of grain to be delivered; and that, if it fell short, the carrier was to pay for the shortage. Held, no error; that by the bill of lading itself the carrier guaranteed to deliver the quantity specified, and he was responsible therefor; but if the language of the bill should be considered insufficient to determine the meaning, the words, “ quantity guaranteed,” might be regarded as a technical expression, known to and understood by persons in the business, and evidence from such a person was proper to explain it.</p> <p>The bill of lading specified that J. and S. (plaintiffs’ agents) should collect the freight of the consignees and pay to defendant, less advances. After delivery defendant demanded the balance due him of J. and S., who paid it; afterward defendant having a claim against the consignees for demurrage, told J. and S. to collect and settle the freight, but to do nothing to prejudice his'claim for demurrage. Upon the trial the plaintiffs proved. the amount allowed by J. and S. for shortage, and claimed that defendant was bound by their settlement thereof. Held, that defendant conferred no authority upon J. and S. to admit that the cargo was short, or ' to settle for it; and that he was not bound thereby.</p> <p>The only other evidence of deficiency was the measurer’s returns. It was proved that, as between buyer and seller in New York, the measurer’s returns are received and acted upon as evidence of the quantity of grain sold. Held, that measurers of grain in New York are not public officers,</p> <p>, and their returns are not evidence; that the custom proved did not apply so as to bind the plaintiffs by the returns, andthat plaintiffs, therefore, had failed to establish any deficiency.</p>

This action was brought upon a promissory note for $200, made by the defendant, payable to Mott Warner, or bearer, one year from date, with interest. The defence was usury. The note was given upon a loan of money by defendant, Gardner, of Watson, the payee, which loan was negotiated by Nancy Childs, as agent for the payee.

Appeals froto judgments of the General Term of the Supreme Court in the third judicial district, affirming judgments of the County Court of tJlster county, which reversed judgments of a Justice’s Court in favor of plaintiffs.

This was an action for trespass, and was originally commenced in' Justice’s Court. A plea of title having been there interposed, the action was discontinued and commenced in the Supreme Court. The sole question litigated at the trial was one of title.

This action was brought by plaintiff, as assignee of Lucinda Earl, for the alleged conversion of certain ready-made clothing.

This was an action of fraud. The facts appear sufficiently in the opinion. Evidence to prove a cotemporaneous fraud, similar to that which constituted the cause of action, would have been admissible, even if such fraud had not been the subject of a count in the complaint. (1 Phil. Ev., 750, C. & H. Notes; 107 Mass., 149.)

<p>One who has seen a party, whose signature is in question, write his name once, or who has held his note, acknowledged and conceded to be genuine, is a competent witness as to the genuineness of such signature.</p> <p>In an action against a father and son upon a promissory note, purporting to be executed by them as joint makers, which was given in the business of the latter and was unquestioned by him, but which was disputed by the former, he claiming that his signature thereto was a forgery, evidence tending to pro,ve that he had recognized the validity of and his liability, upon other similar notes which he himself has not signed, after full knowledge that the signature was not his handwriting, was received in conjunction with evidence that the signature was, in fact, made by the son, held, proper, as tending to show authority in the latter so to sign.</p> <p>Evidence, however, that the father assisted his son in starting business by loaning him money and procuring money for him upon his (the father’s) indorsement, and took security by chattel mortgage for such loans and indorsements, held, not competent, as such accommodations in no way tended to show a grant of authority to sign notes in the name of the father.</p>

This action was brought to obtain relief on account of a fraud alleged to have been committed upon the plaintiffs in the purchase and sale of oil lands, and the formation of the .Federal Oil & Coal Company. The alleged perpetrators of .the fraud, and the executors of a deceased one, and all the stockholders of the company, and. the company itself were made parties. The facts appear sufficiently in the opinion.

(Reported at Special Term, 40 How., 193; at General Term, 5 Lansing, 222.) This action was brought by the plaintiff as receiver, etc., of John Edgerton, to compel the defendant to issue and deliver to him a certificate for twenty shares of its capital stock, for which the said Edgerton had become a subscriber on its formation, or,to make payment of its value.

This action was brought to recover money alleged to have been paid by plaintiff to the defendant by mistake. The following facts appeared upon the trial. In November, 1865, Alfred A. Post opened an account with plaintiffs, as his brokers, for the purchase and sale of stocks, and deposited with them as security or margin various sums, making a total of $26,000.

(Reported below, 59 Barb., 505.) This action was brought upon a promissory note given by-defendant, dated March 1st, 1868, for $5,000. The facts are sufficiently stated in the opinion. The note was without consideration. (Story on Prom. Ho tes, §§ 184, 187.) The intermarriage of the maker with the payee, operated to discharge the note.

This action was brought to recover the value of a party wall. In July, 1861, D. S. Yoorhees and Thomas Dean owned adjoining premises in the city of Brooklyn.

This action was brought to recover a quarter’s rent alleged to be due under a lease of certain premises situate in the city of ISTew York. On the 30th of March, 1866, the plaintiffs leased to the ' defendant the store known as No. 48 Front street, in the city of ISTew York, for the term of three years from the 1st day of May, 1866, at the yearly rental of $2,600, payable quarterly.

(Reported below, 59 Barb., 291.) The nature of the action and the facts therein are set forth sufficiently in the opinion. Plaintiff was entitled to a confirmatory deed, notwithstanding he might have set up his claims as a defence to the ejectment suit.

. This was an action to recover damages for injuries alleged to have been occasioned by defendant’s negligence. The facts appear sufficiently in the opinion. At the close of the evidence, defendant’s counsel moved for a nonsuit upon the ground, among others, that the evidence disclosed negligence on the part of plaintiff. The court denied the motion and defendant excepted.

(Reported below, 59 Barb., 554.) This action was brought to recover back the amount paid the Merchants’ Uüion Express Company upon a draft or bill of exchange, upon the alleged forged indorsement of the payee.

Term of the Supreme Court in the second judicial district, affirming a judgment in favor of plaintiff, entered upon the report of a referee. The action was brought by the plaintiff against the defendants as her stockbrokers, to recover damages- upon sale of certain stocks by them without authority.

(Reported below, 60 Barb., 644.) This action was brought to recover damages for injuries received by plaintiff through the alleged negligence of defendant.

, Appeal from judgment of the General Term of the Court of Common Pleas for the city and county of Bew York, affirming, a judgment in favor of plaintiffs, entered upon the decision of the court, upon trial without a jury. This action was against defendant’s company, the Adams Express Company, to recover for a loss of two cases of Shallenberger’s pills, each containing a gross, intrusted to it as a common carrier for transportation.

This action was brought against defendant, as a common carrier, to recover the value of certain goods destroyed by fire in defendant’s depot at Sarnia. Defendant’s road runs from Fort Erie, Canada, opposite Buffalo, to Sarnia, and it was a common carrier of goods from Buffalo. The goods in question were delivered to defendant, at Buffalo, on the 7th ¡November, 1866.

' The proceedings in question culminated in an ordinance passed August 21, 1866, which directed the construction of a bridge' of white oak, with iron girders, over the mill-race in Water street, from the north line of the old Erie canal aqueduct to a point fifty-five feet north of Hortimer street, and that the expense thereof ($20,800) be assessed on one tier of lots on each side of Water street.

This action was brought against the defendant, a conductor upon the Long Island railroad, to recover damages for forcibly ejecting plaintiff from the cars of that road. The facts appear sufficiently in the opinion. The court directed a verdict for defendant; exceptions were ordered to be heard at first instance at General Term. Plaintiff’s ticket should not be considered as a contract, but simply as a token- of the payment of his fare.

This action was brought to recover the proceeds of certain goods consigned to plaintiff by defendants for sale. The facts appear sufficiently in the opinion. At the close of the evidence the court directed a verdict in favor of plaintiff, which was rendered accordingly. Exceptions were ordered to be heard at first instance at General Term. After the service of the attachment, defendants had no right to pay the money over to plaintiff. (Code, §§ 232,463; 26 How.

in favor of plaintiff, entered upon a, verdict. The action was against, the defendants as stock-brokers, to recover damages for disobedience of instructions. Plaintiff, a resident of St. Louis, employed defendants as his brokers to operate in stocks in Hew York city, they to receive the usual commissions and interest, and to advance for plaintiff’s account the cost of all stocks purchased for him, he to furnish the customary margin of ten per cent.

the Supreme Court in the sixth judicial district, entered upon an order denying a motion for a new trial, and -directing judgment upon a verdict.

Appeal- from judgment of the General Term of the Supreme Court in the third judicial district, affirming a judgment in favor of defendant, Miller, entered upon a verdict and affirming an order denying a motion for a new trial. (Reported below, 1 Bans., 451; 44 Barb., 420.) This action was brought to recover the amount of a check for $156, signed “Miller & Gale,” the firm name of a former copartnership composed of defendants.

Appeal by the defendant, Dugald McCall, from a judgment of the General Term of the Supreme Court in the seventh judicial district, affirming a judgment entered on the report of a referee. The facts material to the decision in this court are sufficiently stated in the opinion of the Chief Commissioner. Before the Code, a bill of review was in the nature of a writ of error. (Story’s Eq. PL, 320, § 403; 2 Barb.

The questions submitted for decision are, substantially, whether George W. Connitt, one of the plaintiffs, is still the pastor,of the Reformed Protestant Dutch Church of New Prospect; if not, when did he cease to be pastor ? Is he entitled to any salary since May 3d, 1869; and, if so, up to what date % Which of the parties are now the consistory of the church ? And from what time, if any, is Mr. Connitt liable to pay rent for the use and occupation of the parsonage ?

Term in the first judicial department, affirming a judgment in favor of plaintiff entered upon a verdict. This action was brought upon a policy of insurance, dated December 6, 1867, issued by defendant for $2,500; $200 on office furniture and fixtures, and $2,300 on merchandise, hazardous and extra hazardous. The property insured was damaged by a fire occurring Hay 31, 1868. The substance of the policy and the facts are sufficiently set forth in the opinions.

<p>Where evidence is given upon the trial of an action pertinent to the issues therein, and which also presents another issue not made by the pleadings, the reception of such evidence, without objection, is not a waiver of an objection to the consideration of such other issue.</p> <p>A policy of insurance contained a clause avoiding it in case of the keeping or use of certain specified inflammable articles. In an action upon such y policy, no issue was presented by the pleadings upon this clause, but the defence was fraud in the origin of the fire and in the proof of loss. Upon the trial evidence was given, without objection, showing the presence upon the premises of one of the prohibited articles. Defendant moved for a nonsuit upon the ground that under said clause the policy was void. The motion was denied. Reid, no error, that the evidence was proper under the issue of fraud, and its reception without objection was not a waiver of an objection to the consideration of the new issue thus presented.</p> <p>It is not necessary to specify the ground upon which a motion for a non-suit is denied: If a good ground exists, which has not been waived, it is sufficient.</p>

■ Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of the plaintiffs entered upon the report of a referee. This action was brought to recover the amount of a debt due the plaintiffs from the firm of S. C. Hanford & Co. The facts appear sufficiently in the opinion. Defendant’s agreement “ that he would guarantee the debts,” not being in writing, was void.

<p>AlPpeal from a judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment in favor' of defendant, entered upon the report of a referee. (Reported below, 4 Lans., 106; 60 Barb., 140.)</p> <p>This action was brought upon two promissory notes given by defendant, in part payment for ten. tons of steel purchased by it of plaintiffs. The answer set up, as a counterclaim, a warranty as to the quality of the steel, and a breach thereof. The contract was by letters, the substance of which is set forth in the opinion. The referee found that there was an express warranty ; . that defendant, relying thereon, manufactured 2,000 dozen axes from the steel; that the steel was not of the quality warranted, but much inferior thereto, and by reason thereof the axes so manufactured were worth $1.50 per dozen less than they would have been had the quality been as warranted, and he allowed defendant the amount of damages thus ascertained, to wit, $3,000. Further facts appear in the opinion.</p> <p>This is an executory contract, and the rule applicable to executed sales with warranty does not apply. (Pomeroy v. Shaw, 2 Daly, 267; Reed v. Randall, 28 N. Y., 358; Rust v. Eckler, 41 id., 488; Peterson v. Ayres, 24 E. L. & E., 382.) A breach of a warranty does not defeat a sale, but entitles the vendee to recover damages. (Reed v. Randall, 29 N. Y., 358, 369 ; Muller v. Eno, 14 id., 597; Gillespie v. Torrance, 25 id.', 306; Chanter v. Hopkins, 4 M. & W., 399; Behn v. Burness, 3 B. & S., 751, 755;' Bannerman v. White, 10 C. B. [N. S.], 844; Voorhees v. Earl, 2 Hill, 288.) The receipt and conversion of goods after an opportunity to examine, without notice of the defect in them and offer to return them, is an admission that the conditions of the. contract have been fulfilled, and estops the vendee from recovering for a defect in quality. (Pomeroy v. Show, 2 Daly, 267; Reed v. Randall, 29 N. Y., 358; Weaver v. Wisner, 51 Barb., 638; Leamenworth v. Packer, 52 id., 132; Delafield v. Be Grauw; 9 Bos., 1; 3 Keyes, 467 ; Pike v. Nash, 1 id., 335 ; Fisher v. Samuda, 1 Camp., 190; Hopkins v. Appleby, 1 Stark., 477.) The terms of an express warranty will not be extended by implication. (Baldwin v. Van Deusen, 37 N. Y., 467; Bartlett v. Hoppock, 34 id., 118; Pickering v. Dowson, 4 Taunt., 779; Dickson v. Zizinia, 10 C. B., 602; Parkinson v. Lee, 2 East, 314; Owens v. Dunbar, 12 Irish L. R., 304; Kain v. Old, 2 B. & C., 634.) When goods are in esse and may be inspected, and the seller is not guilty of fraud, the rule caveat emptor applies. (Parkinson v. Lee, 2 East, 314; Seixas v. Woods, 2 Cai., 48 ; Snell v. Moses, 1 J. R., 96 ; Hargous v. Stone, 5 N. Y., 73 ; Burne v. Dord, id., 95.) When the seller is the manufacturer of the goods, the utmost limit of the implied warranty is that thére are no defects in quality, of which the seller is aware. (Hoe v. Sanborn, 21 N. Y., 552.) On a sale of goods in esse, specifically described, which may be examined by either party, there is no implied warranty. (Barr v. Gibson, 3 M. ,& W., 390; Holden v. Dakin, 4 J. R., 421; Gomperz v. Bartlett, 2 E. & B., 849.) On the sale of a known, described and defined article, stated to be required for a particular purpose, there is no warranty that it shall answer the intended purpose of the buyer. (Chanter v. Hopkins, 4.M. & W., 399 ; Ollivant v. Bailey, 5 Q. B., 488; Mason v. Chappell, 15 Grat., 584; Prideaux v. Burnett, 1 C. B. [N. S.], 613; Prideaux v. McMurray, 2 F. & F., 225; Prentice v. Dike, 6 Duer, 220; Hoe v. Sanborn, 21 N. Y., 352;) The measure of damages in an action for the breach of warranty in the sale of goods is the difference between the value of the article- as it was at •the time of sale, and its value had it been' as represented. (Muller v. Eno, 14 N. Y., 597; Hoe v. Sanborn, 36 id.,- 93; Leonard v. N. Y. A. and Tel. Co., 41 id., 544; Passenger v. Thorburn, 34 id., 634; Millburn v. Belloni, 39 id., 53; Griffen v. Colver, 16 id., 489; Smeed v. Ford, 1 El.- & El, 602; Brown v. Coddington, 2 M. &. G., 279.) The purpose of the law, in the absence of fraud, is not punishmept - but compensation. (Sedg. on Meas. Dam., 8;- Dana v. Fiedler, 12 N. Y., 40.)</p> <p>An action for a breach of warranty is an affirmance of the sale,-and requires no rescission or offer to rescind. (Alden v. Eno, 14 N. if., 602.) The measure of damages is' the difference between the value of the article manufactured from the defective material and what would be its value if made from material as warranted. (Passenger v. Thorburn, 34 N. Y., 634; Millburn v. Belloni, 39 id., 53; Messmore v. N. Y. Shot and Lead Co., 40 N. Y., 427; Heinemann v. Heard, 50 id., 37.)</p>

This action was upon a policy of fire insurance. The facts are sufficiently stated in the opinion. The acts of the sheriff were not sufficient to constitute a levy. (Rodger v. Bonner, 55 Barb., 9, 24; 45 N. Y., 379; Leonard v. Vandenburgh, 8 How., 77.) There is no levy of an execution upon real estate known to the law.

(Reported below,. 3 Lans., 509.) This was an action for an accounting as to the amount due upon a bond and mortgage, and for the recovery of the possession of the mortgaged premises, upon payment of the-amount due. In 1858 one Ridgway, being the owner of certain- premises situate in the city of New York, mortgaged them to an insurance company to secure $2,000; the insurance company assigned the mortgage to the defendant Sarah A. Marsh.

Plaintiff held a mortgage upon defendant’s premises, the balance unpaid upon which was not yet due, the latter desired to pay up the mortgage, the former desired to retain the investment. Held: that there was ample consideration for the agreement, that the same was valid and binding, and that plaintiff was entitled to recover.

This was an action in equity to have certain real estate purchased by the defendant, Philander Spaulding, declared to be trust property, for the b enefit in part of the plaintiffs. Held: that there was no relation between the parties existing that placed defendant in the position of trustee; that no reliance was placed upon him, and that, therefore, there was no cause of action.

This was an action to recover damages for injuries received by plaintiff by being thrown from a carriage, which was struck by an engine, at a highway crossing on defendant’s road, near Suspension Bridge. Defendant had no sign at the crossing, and the evidence tended to show that no bell was rung or whistle blown. The only question on appeal was as to contributory negligence. Plaintiff’s intestate was riding in a covered carriage with another person, who was driving.

This was an action upon a policy of fire insurance, by which defendant insured plaintiffs $1,400 “upon their frame cotton-gin house,” $600 “ on press and gin,” and $3,000 “ on cotton in seed, in… Held: that by the terms of the agreement plaintiffs were not necessarily the sole and unconditional owners of the cotton, but that they were either partners or tenants in common with Flournoy in carrying on the plantation.