Volume 56 — Barbour's New York Supreme Court Reports

The cause was tried before the Hon. Wm. J. Bacost, at the Onondaga circuit, in May, 1864, a jury having, been waived. The action was brought to recover the amount ' of several bills of costs for services rendered by the plaintiffs for the defendant, upon its retainer. The answer set up the statute of limitations in bar.

<p>Where the holder of a note has in hands and under his control a fund belonging to one of the makers who is the principal debtor, a surety in such note is entitled to have such holder exhaust that fund, in the discharge of the note, before resorting to him as surety.</p> <p>The administrator of the payee of a note has the right to apply so much of a distributive share of the estate, coming to the maker of the note, as will pay and discharge such note.</p> <p>And a surety of the maker, when sued upon the note, by the administrator of the payee, has a right—the maker being insolvent—to insist that the administrator shall so apply the distributive share of the principal.</p>

<p>APPEAL from 'a judgment in favor of the plaintiff, rendered upon the report of F. W. Hubbard, Esq., sole referee.</p>

<p>Commissioners of highways, who have paid the juror’s fees and other costs of a reassessment of the damages of a land owner, occasioned by laying out a road through his lands, on appeal by them from the original assessment, upon which appeal the amount of the assessment is reduced, can maintain an action to recover such costs of the land owner.</p> <p>The statute {laws of 1857, eh. 455, $ 7,) is tto be so construed as to include within its meaning the commissioners, when they are successful on the appeal, as well as the other party, when he succeeds.</p> <p>Where, in an action brought by persons suing as commissioners of highways, to recover the costs of a reassessment, there is some evidence given of their being such commissioners, and no question as to their being such was raised before the justice, either while the trial was progressing, or on a motion that was made for a nonsuit; and no such ground of appeal to the county court was specified; nor does it appear that any such question was raised before the county court; and the whole case shows that the plaintiffs were treated, through the whole trial, as commissioners of highways; it is too late, on appeal, to disturb the judgment of the county court on the ground that they were not such commissioners.</p>

TOTS case came before the court on a motion for a new trial upon a nonsuit ordered at the Onondaga circuit, and the motion was ordered to be heard at the general term in the first instance. The plaintiff claimed to recover for a personal injury sustained by him by falling into a cattle-guard, on the line of the defendant’s railroad, in Clyde, which he alleged was improperly constructed.

<p>The plaintiffs, at various times, sold and delivered to the defendant, dry goods out of their store, to an aggregate amount of’$331.68; in consideration of which, and in payment thereof, the latter agreed to deliver to the plaintiffs, on or before a day specified, nails, at the rate of $5.37i per one hundred pounds. Held that the transaction was a purchase of dry goods from the plaintiffs, by the defendant, from time to time, on credit, the goods being delivered at the time of each purchase, and to be paid for in nails on or before the day mentioned; and not a purchase of nails, to be paid for in dry goods, or even an exchange of nails for dry goods.</p> <p>Held, also, that the plaintiffs were entitled to recover the balance of the purchase money of the goods sold, remaining unpaid, with interest from the time the same became payable.</p>

<p>APPEAL from a judgment in favor of the plaintiff, rendered at the Onondaga circuit, in September, 1864, on a trial by the court, a jury having been waived.</p> <p>The action was brought to recover a penalty of $100, pursuant to the provisions of section 11 of “An act to provide for the incorporation and regulation of telegraph companies,” as amended by chapter 559 of the laws of 1855, section 1, which declares it to be “ the duty of the owner or the association owning any telegraph line, doing business within this State, to receive dispatches from and for other telegraph lines and associations, and from and for any individual, and on payment of their usual charges, for individuals, for transmitting dispatches, as established by the rules and regulations of such telegraph lines, to transmit the same with impartiality and good faith, under the penalty of $100 for every neglect or refusal so to do, to be recovered with costs of suit, in the name and for the benefit of the person on persons sending, or desiring to send, such dispatch; provided that nothing contained in this section shall be construed to require any telegraph company or association to receive and transmit dispatches from, or for, any other company or association owning a line of telegraph parallel with, or doing business in competition with, the line over which the dispatch is required to be sent.” (Stat. at Large, vol. 3, p. 722.) On the trial it appeared, and the court found, that the plaintiff and defendant were incorporated associations, engaged in the business of telegraphing messages over their respective lines. That each party had a line of telegraph from Albany to Buffalo. That from Albany to Syracuse they were parallel, and competing lines; and that from Syracuse to Buffalo the line of the plaintiff was a parallel and competing line with the northerly line of the defendant, between those places, running along the direct railroad line from Syracuse to Rochester, and on to Buffalo. That the defendant had a line of telegraph running from Syracuse to Auburn, and thence on to Geneva, Canandaigua, and connecting with its northerly line at Rochester; and that the plaintiff' had no line from Syracuse to or towards Auburn, or between that place and Rochester; and that its nearest line to Auburn was the one which ran parallel to the defendant’s northerly line, and that its nearest approximation to Auburn was at a point where it passed about eight miles distant therefrom. And the court also found that the defendant used the Auburn line of its telegraph to convey through messages, from Albany to Buffalo, when its convenience required it. That the plaintiff* and defendant each had offices at Albany and Syracuse, and that the defendant had an office at Auburn; but that the plaintiff had not; and that between Syracuse and Auburn the plaintiff and defendant had no parallel or competing lines, and that Syracuse was the nearest point, on the line of the plaintiff, to Auburn, from which a message could be dispatched to that place by telegraph. That on the 4th of March, 1864, a message from an individual was delivered to the agent of the plaintiff at its office in Albany, to be transmitted to one “ Wm. Baker, Auburn,” and was transmitted over the line of the plaintiff to Syracuse, and received there by the agent of the plaintiff. And on the same day the plaintiff delivered to the defendant, at its office in Syracuse, the said message and requested that it should be transmitted to its address at Auburn, and tendered to the defendant the payment of its usual charge for individuals for transmitting the same, and that the defendant neglected and refused to transmit it. The court found, as a conclusion of law, that the plaintiff was entitled to recover the penalty of $100, and ordered judgment accordingly.</p> <p>The defendant excepted to the findings that the lines of the defendant between Syracuse and Rochester—the one by the way of Auburn, and the northerly one—were separate lines, and to the finding that the plaintiff and defendant had no parallel or competing lines between Syracuse and Auburn. The other findings of fact were undisputed. And the defendant excepted to the conclusion of law that the plaintiff was entitled to recover.</p>

<p>APPEAL from a judgment entered upon a verdict for the plaintiff, rendered at a circuit court held in and for the county of Jefferson, in October, 1864, before Hon. Le Eot Morgan, justice.</p>

<p>MOTION for a- new trial, upon exceptions taken at the circuit to the rulings of the judge. The cause was tried at the Jefferson county circuit in October, 1864, and the judge ordered a verdict for the plaintiff^ which was excepted to; and several exceptions were taken on the part of the defendant to the admission of testimony, and to the charge and refusals to chhrge by the court, in summing up to the jury.</p> <p>The material facts appear in the opinion.</p>

<p>THE action was brought before a justice of the peace, to recover damages against the defendant for not delivering a quantity of wheat to the plaintiff pursuant to contract. The justice rendered a judgment in favor of the plaintiff for $30 damages, together with costs.</p> <p>The defendant appealed to the county court of Onondaga county, and the judgment of the justice was affirmed with costs, and the defendant brought his appeal to this court.</p>

<p>It is no defense to an action brought by a constable upon an agreement by the plaintiffs in an execution, to indemnify him , against the costs of a suit brought by him against a deputy sheriff for levying upon and selling property which the constable had previously levied on, that when the defendants agreed to indemnify the plaintiff they did not know that he had levied other executions upon the same property levied upon hy virtue of theirs.</p>

WRIT of error to review the proceedings in the court of sessions of Onondaga county, in which the plaintiffs in error were indicted and convicted of a nuisance. They were indicted for erecting and maintaining a powder-house, and for keeping therein a large quantity of powder, near the city of Syracuse, to which they pleaded not guilty, and the indictment was tried at a court of sessions in said county, in November, 1865, and the defendants were found guilty.

<p>In order to render an election for charter officers in a city valid, it is indispensable that a list or register of the voters shall be made specially for that election. Without such a register, all the votes cast at such election are illegal, and any election of an officer is a nullity.</p> <p>This principle applies to a special election, required by a city charter to he held annually, for the election of a particular class of officers, (school commissioners.)</p>

<p>The defendant, on transferring to the plaintiff the note of a third person, then past due, guarantied its collection, provided due diligence should he used. Subsequently, he requested the plaintiff to give time, and forbear to sue the maker; which request was never withdrawn, or countermanded. The maker absconded, and went to Canada, where he remained, leaving property in this State, liable to the payment of the debt. Held that the plaintiff, before he could recover upon the guarranty, was bound to exhaust his remedy against the maker, by suing him to judgment, in this State, and collecting what he could upon the execution.</p> <p>The plaintiff, after the maker of the note absconded, issued a summons for the purpose of commencing a suit against him, and obtained an order of the court directing service thereof by publication, and that a copy of the summons and complaint be deposited in the post-office, directed to the maker, if his residence could be ascertained; or that personal service be made on him. Held that a compliance with such order was necessary, to complete the service of the process, and to give the court jurisdiction of the action; and that without such compliance the subsequent proceedings, and a judgment entered thereon, were void as against the guarantor.</p>

The action is brought to declare the exclusive right to make and use in the United States a certain patented ink, known as the “ green tint,” to be vested in the plaintiff; to compel the defendant to account for and pay over any and all sums of money received by him for permission to use, or as compensation for the use of the “ green tint” by others than .the plaintiff; to declare the capital stock of the plaintiff owned and held by the defendant, forfeited to the plaintiff,…

ACTION against a broker, to recover damages for a conversion of stock.

<p>MOTION for a new trial, on the part of the plaintiff, upon bill of exceptions taken at the circuit and directed to be heard in the first instance at the general term. The action was for slander, and the jury rendered a verdict for the plaintiff for six cents.</p>

THE plaintiff sued the defendant in a justice’s court, and recovered a judgment, from which the defendant appealed to the county court of. Cayuga county, but there was no revenue stamp attached to the notice of. appeal, as was required by the internal revenue act of congress, then in force.

<p>ASE made and submitted without action, pursuant to section 372 of the Code of Procedure, to determine the construction of a lease from the defendant to the plain-.tiff, of pew FTo. 68 in the defendant’s church.</p>

APPEAL by the defendant from a judgment rendered upon a verdict at the circuit court in the county of Onondaga, held before Hon. Wm. J. Bacon, justice, in January, 1866. The action was brought to recover damages for a personal injury sustained by the plaintiff by falling into a ditch which the defendant hail caused to be dug, across the sidewalk of one of the streets in the city of Syracuse. The answer to the complaint Was a general denial.

<p>Where a cask of brandy was shipped by the plaintiff, at Syracuse, on the defendant’s railroad, consigned to a person at Oswego, which was proved to have been in good order when it left the plaintiff’s store to be delivered to the defendant, and to have been receipted by the defendant’s agent, but when it was delivered to the consignee, the cask was injured and leaking,'and a-portion of the brandy had leaked out; Meld that the justice was warranted in finding, upon this evidence, that the cask was in good order when delivered to the defendant, and that it was injured while in its charge.</p> <p>The law holds a carrier responsible to the owner, for all loss and damage of the property entrusted to his care, whether it arise from his own negligence or that of his servants, or of third persons; or whether it he caused by the tortious acts of himself or others, who are not the public enemies; or whether it be by unavoidable accident, not caused by the act of God.</p> <p>Against all such losses the carrier is an insurer, and he must make them good, whatever may he their extent; and it is no answer to the claim of the owner, that, he has done the best he could.</p> <p>But this principle of law is not to be applied in such a manner as to call for unnecessary forfeitures on the part of the carrier; nor so' as tp compel him to he the purchaser of the bulk of a consignment committed to him, when only a part of it is injured or lost; unless the injury or loss be such as to render the residue unmerchantable, or unfit for the use to which such property is ordinarily applied.</p> <p>Where a cask containing ten gallons of brandy was delivered by the plaintiff at Syracuse, to the defendant, to be transported to Oswego and there delivered to A., which, when received by the defendant was in good order, but on delivery to the consignee, the cask was injured and leaking, and about a gallon of brandy gone from it; Sdd, in the absence of any claim or proof that the nine gallons delivered were of any less value per gallon than they would have been if the other gallon had not leaked out, that it was the duty of the consignee to receive the same; and that the plaintiff was entitled8 to recover only for the cask and for the quantity of liquor that was missing.</p> <p>Receiving from a carrier property which has been damaged by him, or a part of which has been lost, is no waiver of the claim for compensation for all the damages sustained.</p>

CEETIOEAEI to review the trial and conviction of the prisoner, under an indictment against him jointly with one Thomas Meany, for burglary. The prisoner and Meany were indicted for burglary in breaking in the store of one William Burk, in Syracuse, in which divers goods and merchandise were kept for use and sale, with intent burglariously to steal the same, &e. to which he pleaded not guilty.

COMMON law certiorari directed to the county court, to review its decision, on appeal from an assessment made by the relators as commissioners for draining lands on Black lake and its tributary streams, in St. Lawrence and Jefferson counties.

THIS is an appeal from an order overruling a demurrer to the complaint. The action is brought by a laborer of the company, employed in blasting, for an injury occasioned by the premature discharge of a blast, loaded with a newly invented powder, which he was directed to use by the defendant’s foreman or superintendent; which powder, it was alleged, was unsafe, had never been tested as an explosive, and could not be tamped for blasting without exploding.

THIS is an appeal from a judgment of the special term in favor of the defendants.

<p>APPEAL from a judgment rendered for the plaintiffs, upon a trial before a jury, at the circuit.</p> <p>The action was brought upon a policy of fire insurance, issued by the defendant to the plaintiffs, to the amount of $1000. Upon the trial, at the Oswego circuit, it appeared that the plaintiffs, on the 14th of June, 1864, were copartners in the business of carrying on a steam saw and shingle mill at Oswego, and on that day the defendant insured their stock in the sum of §1000 for one year, by a policy of that date.</p> <p>The policy contained on its face, and as one of its conditions, the following: “ 4. Policies of insurance subscribed by this company shall not be assignable without the consent of the company expressed, and indorsement made thereon. In case of assignment without such consent, whether of the whole policy, or any interest in it, the liability of the company in virtue of such policy shall thenceforth cease. * * * And in case 'of any change of title in the property hereby insured. * * this policy shall cease and determinej”</p> <p>On the 14th of June, 1865, the policy was renewed for one year, by a certificate of renewal in the ordinary form.</p> <p>On the 30th of September, 1865, the plaintiff Kitts sold to one William H. Wilmot his interest in the partnership effects of said firm, and Wilmot was to succeed him in said firm, under some other firm name; and two instruments in writing were made and executed between Kitts and Wilmot, one by each of them, and were simultaneously delivered. The agreement executed by Kitts,-so far as it is material, recited that Kitts, “ in consideration of the sum of twenty thousand dollars to me in hand paid by William Wilmot of the same place, and in consideration of the agreement on the part of said Wilmot, hereinafter contained, have granted, bargained, sold and conveyed, and do hereby bargain, sell, grant and convey unto the said Wilmot, his executors, administrators, heirs and assigns forever, all my interest as a member of the firm of Kitts & Chandler, in the goods, chattels, interest in real estate, leases, personal property, fixtures, machinery, accounts, bills, bonds, notes, mortgages, claims, choses in action, and all and everything and species of property, of any and every name and nature whatever of the said firm of Kitts & Chandler, (not including the Miller boat yard,) hereby intending to place him in all respects, as to the property, interests and matters of said firm, in my shoes; and such sale is made to him subject to the payment of all the liabilities and debts owing by said firm, and all claims and rights of action against said firm, hereby intending also to place said Wilmot in all respects, as to debts and liabilities of, and claims, demands and causes of action against said firm, in my own shoes, (not including the Kitts, Chandler & Miller boat yard,) and said Wilmot, by accepting this bill of sale and conveyance, assumes and agrees to pay the debts of said firm to the same extent that I would be liable thereon, and to keep me forever harmless therefrom, and from all trouble, costs, damages, losses and expense in relation to, or on account of, any liabilities, claims, actions and causes of action, debts, &c., of every nature against said firm; he intending by accepting this, and agreeing to stand completely in my shoes, in all respects in regard to everything relating to said firm, and the property, business, contracts, liabilities, and everything of every name and nature, and to keep me as aforesaid forever harmless thereupon in everything and respect.”</p> <p>The agreement executed by Wilmot, after. reciting the sale to him by Kitts, and that he was to pay all the partnership debts for which Kitts was liable, and indemnify and save him harmless therefrom; and that he was indebted to Kitts for the purchase money in the sum of $20,000, to be paid in installments, the first of which, amounting to $3500, was payable in one year from that date, and the residue of the $20,000 in installments from time to time, thereafter, and running through a term of five years, and that he intended to continue in the said business; it continued, that “ for the purpose of securing the payment of said notes, and the performance of said agreement on my part, I do hereby sell, assign, and transfer and convey to said Kitts all the interest in the property, effects &c. of said firm, by Mm as aforesaid soM, assigned and conveyed to me; and I further, for such security, do hereby give him a lien, by way of mortgage, upon all my interest in the property and effects of said new firm, of every name, nature and description, whether the same is now in existence or not, at all times, whenever the same shall be acquired by or shall accrue to said firm, and agree to keep it insured for benefit of said Kitts; present insurance to he held by him. And if said notes shall be paid at maturity, and said agreement shall be promptly and fully performed in every respect, without default, then said sale, &c., and mortgage lien, shall cease and be void.”</p> <p>It then provided that in case of any default on the part of Wilmot, or if Kitts should at any time deem himself insecure, of which he was to be the judge, then he was authorized to take all of the property into his possession, and to sell the same at public dr private sale, and out of the proceeds to reimburse himself fully for the amount dué, and for any liabilities not discharged by Wilmot; and for all trouble, loss, damages, costs and expense on account thereof, or on-account of taking, keeping and selling the property, including attorney’s and court fees, and the balance, if any, to be paid in to Wilmot.</p> <p>The agreements were executed between Wilmot and Kitts, without the consent of the defendant.</p> <p>On the 15th day of December, 1865, the insured property was destroyed (by an accidental fire) to an amount much larger than the amount insured by the. defendant. DTo part of the $20,000 had been paid to Kitts by Wilmot; and the proofs of loss, &c., were conceded to be regular. It was also conceded that there was no question of fact for the jury, but that the case turned upon questions of law, upon the facts proven and admitted, and the defendant’s counsel thereupon moved for a nonsuit, and that the complaint be dismissed, on the following grounds: °</p> <p>First. That by the terms of the bill of sale introduced in evidence, from Kitts to Wilmot, the policy of insurance in question was sold and transferred to Wilmot, and being done without the consent of the insurance company,- such transfer avoided and terminated the policy, under and by the terms of the fourth condition thereof.</p> <p>Second. That by the sale by Kitts of his interest in the insured property to Wilmot, under the bill of sale read in evidence, the said policy, from the time of such sale and change of possession, ceased and determined, and that no recovery could be had on the policy in question, by the plaintiffs.</p> <p>The court overruled each of the said objections and grounds for nonsuit, and directed the jury to find a verdict for the plaintiffs for the amount of said insurance. To which ruling and decision, and to each and every part thereof, the counsel for the defendant excepted.</p> <p>The jury thereupon found a verdict for the plaintiffs for the sum of one thousand and fifty-six dollars and thirty-five cents.</p>

<p>In an action brought against husband and wife, by a judgment creditor of the husband, to have his judgments declared a lien upon land purchased by the husband for which a conveyance had been taken in the name of his wife, the examination of the husband upon supplementary proceedings instituted against him after third persons had gone into possession of the premises under an agreement with the .wife, was offered in evidence against both defendants. Held that the ruling of the referee that such examination was competent evidence against the husband only, and not against the wife, was clearly right.</p> <p>Held, also, that a similar ruling as to a declaration of the husband that he had put his property out of his hands, and got it fixed so that neither the plaintiff nor any other creditor could reach it, came within the same principle; as it related to a declaration made after the title to the land was vested in the wife; and such title could not be divested by the subsequent declarations of the husband.</p>

<p>APPEAL from a judgment of the county court of Madison county, reversing a judgment rendered in favor of the plaintiff, in a justice’s court.</p>

The plaintiff, who resided at Boonville in Oneida county, left his home in September, 1864, for the purpose of going to Frankfort in the county of Herkimer. He took passage on the railroad train of the defendant at Boonville, for Utica, which was about thirty-five miles from Boonville, and about nine miles from Frankfort, and paid for his passage to Utica, and had his valise, which contained clothing, checked to that place.

<p>APPEAL from a judgment of the county court of Onondaga county. The plaintiff sued the defendant in a justice’s court, and complained that he had committed a trespass, by cutting down and carrying away grass from the plaintiff’s premises. The defendant, in his answer, denied the trespass, and alleged that the premises upon which he cut the grass was his own land, and in his possession. The cause was tried, and the justice rendered a judgment for the plaintiff, for $15 damages and the costs of the suit. Upon appeal by the defendant to the county court, the judgment was affirmed, with costs; and the defendant appealed to this court. The facts are sufficiently stated in the opinion.</p>

<p>A general guardian appointed by the surrogate can maintain an action in his own name, as such guardian, to recover a debt due to his wards.</p> <p>Thus he may bring an action to compel the defendant to pay money due from him, which he received in pursuance of an express contract made between him and the guardian for the benefit of the ward, and which he was to pay over to the guardian.</p>

The action was tried at the Jefferson county circuit court, before his honor Justice Mullin. The jury found a verdict for the plaintiff for $500. The defendant moved for a new trial upon the minutes, at a special term held before the same justice; who denied the motion; and from his order the defendant appealed, and the case and exceptions were ordered to be heard, in the first instance, at the general term.

APPEAL by the defendant from a judgment of the county court of Lewis county, affirming a judgment rendered against him in a justice’s court. The plaintiff claimed for goods, wares and merchandise sold to the defendant, for money had and received to the plaintiff’s use, and for work, labor and services done by the plaintiff for the defendant at his request, and an account, amounting in all to $150.

The plaintiffs sued in their individual names, and in the name of their office, in a justice’s court, to recover of the defendant for the keeping, at the asylum connected with the poorhouse of Lewis county, of his daughter, who was insane.

APPEAL, by the defendant Freeman, from a judgment entered upon the verdict of a jury. The action was brought against Lemuel Y. Freeman, Michael Eyan and Thomas Mullady.

APPEAL by the plaintiffs from a judgment entered upon the report of a referee. ' John Harrison died August 6th, 1861, leaving the defendant, his widow, entitled j;o dower in his real estate, but leaving a will devising all his estate, real and personal, to George Harrison, for whom the plaintiffs sue as committee of his person and estate.

THIS was a controversy submitted to the court, without action, under section 372 of the Code of Procedure.. Louis Emile Lahens, trustee under the will of Divine Duvet Balbi, wishing to raise .money for his own use, and to apply certain trust property to the payment of his indebtedness to the defendant Dupasseur, made and delivered a deed to Edward Hot, who thereupon mortgaged the property to Dupasseur, Ho consideration passed between Lahens and Hot.

The deceased died on the 27th day of January, 1868, at the city of Yew York, aged eighty-eight years. At the time of his death he was. the owner of considerable property, and left him surviving his nephew, the appellant herein, his niece Isabella Lamb, and his grand-nephew and grand-niece, James D. and Sarah McKinley, who are minors, his only known living heirs at law and next of kin.

APPEAL by the plaintiffs from a judgment of non-suit. The plaintiffs, as partners in business, sued the defendants as partners, on a promissory note, amounting, with interest, to £2111 9s. 9d. sterling money, the equivalent of which, in the lawful money of the United States, is $15,329.38. The defendants, for answer, set up two distinct defenses. 1.

APPEAL by the defendants from a judgment entered upon the report of a referee. This action was brought to recover the value of a ease of merchandise shipped on board the defendants’ steamer “Edinburgh,” at Liverpool, England, in the month of February, 1866, under a bill of lading given by the defendants therefor.

The plaintiffs, by their complaint, seek to obtain a judgment against the defendants restraining them and their officers from collecting of the plaintiffs certain sums of money assessed (for paving Pearl street with Nicholson pavement) upon the lands and tenements of the plaintiffs, and for a discharge of the liens imposed on the said premises by such assessment, and to restrain the defendants from selling the lands and tenements for the said assessment.

THI8 was an action brought against the defendants as partners, doing business under the firm name of L. Albetis & Go., to recover the value of seventeen barrels of whisky, containing 884 gallons, sold by Albert Cahen to the defendants for cash,' April 20, 1867, at the city of Hew York, at $1.45 per gallon, and amounting to $1261.80. The complaint alleged that the claim had been duly assigned to the appellant by Cahen, before suit was brought.

THIS action was brought by the plaintiff, as assignee of Mary J. Morgan, to correct a mistake in an award made by the plaintiff as arbitrator, under a written submission to him of certain differences existing between her and Mary Loud and the defendant, and for a specific performance of it as corrected. - The arbitrator, after hearing and deliberating upon the evidence submitted to him, awarded that under a certain agreement submitted to him, a farm called “ The Morgan farm,…

THE plaintiff brought this action against the defendant in a justice’s court in the county of G-enesee. Before the trial commenced, the defendant demanded of the justice that the cause should be tried by a jury. A venire was thereupon issued, and the constable who received it summoned twelve persons to serve as jurors. Only six of the persons summoned appeared, and one of them was excused from further attendance by consent of the parties.

THIS is a case agreed upon by the parties, and submitted to the determination of this court under and pursuant to section 372 of the Code of Procedure. From the statement of facts contained in the case, it appears that the defendant, during the year 1865, and since then, has been a stockholder to the amount of $20,000 in the First National Bank of Angelica, a banking institution formed under the act of congress, in November, 1864.

<p>It is the owner or charterer of a ship or vessel, only, who is exempted frofa liability for a loss occasioned by fire without fault, by the act of congress of March 3, 1861, “ to limit the liability of ship owners,” &c.</p> <p>A steamboat' company, receiving goods at Oswego, to he transported to Montreal, aqd carrying the same to Ogdensburgh and there transferring them to a boat owned by other parties, to be carried the remainder of the distance, under a general arrangement between them and the company, to forward</p> <p>• freight for the company, is not the owner or charterer of such boat, within the letter or spirit of the act of congress, so as to be entitled to claim the exemption provided therein for losses occasioned by accidental fire.</p> <p>The true measure of damages for the non-delivery of goods entrusted to a carrier, without fraud or fault of the master, is the current value of the goods at the place of destination, less the charges for freight at the time when the goods ought to have been delivered there.</p> <p>In an action against a carrier, to recover the value of goods delivered to him in this State to be transported to Montreal, and which are destroyed by fire, while on the passage, it is error to allow for damages the amount that the property was worth in Montreal on the day it was destroyed, in American money, or legal tender notes.</p> <p>In such a case, the amount of damages is governed by the general rule that debts due in one country and sued for in another, are to he computed where the action is brought, in the currency of the country where the debt was payable, and without adding or subtracting on account of any depreciation there may be in the currency of either country.</p>

The action was brought to recover back the sum of $66.66, which the plaintiff claimed to have deposited with a stakeholder, upon the event of a wager or bet upon a horse race, made with the defendant, and which deposit was paid over by the stakeholder to the defendant, in violation of the 8th and 9th sections of the article of the Revised Statutes in reference to “betting and gaming.” (1 R. S. 662.) It appeared on the trial that one Taggert, who owned a trotting horse, had…

The action was brought to recover the possession of seven head of neat cattle, which the plaintiff in his complaint claimed to own ; that he was entitled to the possession of them, and that the defendant had taken and wrongfully detained them. The cause was tried before the referee, and he found that on the 18th day of October, 1866, the plaintiff was the owner of the cattle, which were of the value $200.

The facts found and reported by the referee are as follows : In the month of January, 1865, one James Erazee purchased and received a deed, in his own name, for seven or eight hundred acres of land lying in Hickory township, Venango county, Pennsylvania, which purchase was made of one Moses Walters.

THIS case is reported in 54th Barbour, at page 252; the opinion of Morgan, J., there published, being reported as the opinion of the court. The opinion, or vote of Foster, J., in the case, was founded upon the following written opinion, which was read at the time of the decision. And while all the justices concurred in the result, Justice Foster understood Justice Mullin to concur in the views expressed by him.

<p>APPEAL from an order of the special term denying the defendant’s motion for a new trial.</p>

THIS is an appeal from a judgment entered on a verdict given by direction of the court. The cause was tried at the Hew York circuit in Hovember, 1868, Hon. Hoah Davis presiding. The complaint alleges that the defendant sold and assigned to the plaintiff* a judgment against one Blanchard and two others, and in the assignment covenanted that neither of the judgment debtors had been released therefrom.

APPEAL by the defendants from a judgment entered upon the verdict of a jury, and from an order denying ■ a motion for a new trial. The action was brought to recover damages for personal injuries sustained .by the plaintiff while a passenger upon the defendants’ steamboat, by means of an explosion of the boiler.

<p>APPEAL by the defendant from a judgment entered upon the report of a referee.</p> <p>This action was brought March 2, 1866, by Simeon Losee, against the defendant, for damages for the conversion of warehouse receipts representing title to seventy thousand bushels of western mixed corn, in store at Brooklyn, which receipts had been deposited by Losee with Coe as collateral security for a loan of money, upon the agreement that Losee was to pay for the use of the money advanced, 2J per cent every sixty days, and interest at the rate of seven per cent per annum. On the 13th March, Losee assigned to Matthews all of his interest in the warehouse receipts, in payment of an antecedent debt, amounting to the sum of $25,000; afterwards Matthews tendered to the defendant $60,000, and demanded a return of the warehouse receipts. But the defendant refused to deliver, alleging that he had sold the corn. 'Matthews was substituted as plaintiff in the action on the ll-th of February, 1868, by consent of the defendant. On the 23d of April, 1868, the cause was referred, by order of this court, to E. S. Caldwell, Esq., to hear and determine the same; who, after hearing the proofs and allegations of the parties, rendered his decision, and made his report, by which he found that on the 15th day of August, 1865, and at the several dates mentioned in the complaint, Charles A. Coe, the defendant, loaned Simeon S. Losee the sums of money mentioned in the complaint, and the condition of said loans was that Losee should pay Coe interest on the amount of money advanced, at the rate of seven per cent per annum, and two 'and one half per cent in addition thereto every sixty days, during the continuance of the loans; and that as security for the repayment of the money, Losee deposited with Coe the several warehouse receipts mentioned in the complaint, which said receipts represented seventy thousand eight hundred and fifty-six bushels of western mixed corn. That on the 20th day of October, 1865, Losee paid Coe the interest, at the rate of seven per cent per annum, and two and a half per cent in addition, amounting to $1612.80, by way of extra interest for the money loaned by Coe in August, 1865; and that on the 20th day of December, 1865, Losee again paid Coe his interest at the rate of seven per cent, and two and a half per cent as additional compensation for the loan, amounting to 1700.69, and that Coe again charged it to Losee on the 20th day of February, 1866. That the consignment of the corn by Losee to Coe at the time of the making of the loan, was for the purpose of evading the statute regulating the rate of interest on money. That on the 20th day of March, 1866, western mixed corn sold in the market for eighty cents per bushel; on the 7th day of January, 1867, it sold at $1.21J per bushel; on the 14th day of January, 1867, it sold at $1.12 per bushel; and that on theJOth day of October, 1867, it was worth and sold for $1.45 per bushel. That on the 2d day of March, 1866, and before this action was commenced, Losee demanded of Coe the warehouse receipts mentioned in the complaint, and Coe refused to return them to him. That this suit was commenced by Losee, as plaintiff, on the 2d day of March, 1866; that the complaint was amended April 20,1868, and that by stipulation of parties, Charles Matthews was substituted as plaintiff herein on the 11th day of February, 1868, and a supplemental summons and complaint served February 14, 1868. That Coe was in possession of the warehouse receipts after the complaint was served, and that Matthews tendered him the sum of sixty thousand dollars, and demanded possession of the receipts, which Coe refused. That Coe never demanded a return of the money loaned, or gave notice of sale to either Losee or Matthews, at or before the sale of the corn mentioned in the warehouse receipts. That Losee, on the 13th of March, 1866, by an instrument in writing and under seal, assigned to Matthews, the plaintiff herein, for a valuable consideration, all of his interest in the warehouse receipts held by Coe, and mentioned in the complaint herein. That on the 6th day of November, Matthews notified Coe that he held an assignment of all Losee’s interest in the aforesaid warehouse receipts. That Losee afterwards, and on the 9th day of November, 1867, executed a general release to Coe, of all claims which he had against him. That the defendant did convert and dispose of the property in the complaint mentioned, as therein alleged, and that the plaintiff by reason of the matters in the said complaint stated and alleged, has sustained damage in the amount of one hundred thousand dollars.</p> <p>The referee found, as conclusions of law: First. That the contract between Coe and Losee was void, the same being in contravention of the statute regulating the rate of interest on money. Second. That Matthews, as assignee of Losee, was entitled to damages in the highest value of the corn down to day of trial. Third. That the notice of assignment by Matthews to Coe was a sufficient notice. Fourth. That the assignment to Matthews was valid, and carried all of Losee’s interest in the warehouse receipts to him. Fifth. That the plaintiff Charles Matthews was entitled to judgment against the defendant Charles A. Coe in the sum of one hundred thousand dollars, together with the costs of this action ; and he directed judgment to be entered accordingly.</p>

mHIS action was brought against the defendants to re-JL cover $900, the alleged value of a cask of wine brandy shipped at San Francisco, by the firm of Hoadly & Co., on the ship Grace Darling, and consigned to the plaintiffs in Flew York, the contents of which were lost by leakage on the voyage. The .defendants were shipping merchants, at San Francisco, and had chartered the Grace Darling for the voyage.

THIS is an application, upon due notice, for a mandamus to compel the board of supervisors to hear, determine and pay to the relator a claim of 3060.61, for an assessment to that amount against, and which was paid by, the Bank of West Winfield. • The motion papers show that in the year 1864, the Bank of West Winfield, a State bank, with a capital of $100,000, located in the town of Winfield, in the county of Herkimer, held as part of its capital stock $40,000 in the stocks…

On the hearing before the commissioners, Joseph Mening appeared in person, Erederick Keith and Walburga Keith appeared by their attorney, J. Thomas Spriggs, and the railroad company appeared by their attorney, H, Hurlbut.

As the case shows, Parley Howlett was the Owner of a farm of about 280 acres, situate in the town of Onondaga, and on the 14th day of January, 1857, he deeded it in fee to the defendant Alfred A. Howlett, his son by his first wife.

The plaintiff complained that for several years he had been the owner of a lot of land of about eighteen acres, with a dwelling house thereon in which he lived, which land had a small stream running through it, which was durable, and of good, pure, wholesome'water; at which his horses and cattle were accustomed at all times to drink.

APPEAL by the defendant from a judgment of the Onondaga county court, upon exceptions to the rulings of the county judge. The material facts are stated in the opinion.

The action was brought to recover damages for injuries which the plaintiff claimed to have sustained by the negligence of the defendant, while he was a passenger on one of its trains. The issue was tried at a circuit court, before a jury, and a verdict was rendered in favor of the plaintiff for $4000.

The testator, on the 24th of September, 1856, executed his last will and testament, by which he appointed the respondent sole executor thereof, and on the 7th day of January, 1857, died. He left a widow, who was his third wife.

THIS was an action in the nature of a quo warranta, brought for the purpose of determining the relator’s right to the office of city clerk of the city'of Lockport. Held: nominated the defendant for appointment to the office of city clerk. Four of the aldermen and the mayor voted in favor of his appointment, three of the aldermen voted against it, and one of the aldermen of the city was absent, and consequently did not vote upon the question.

THIS was an action for wrongfully obtaining and withholding thirty-two dollars in money, the property of the plaintiff, and for wrongfully issuing and passing upon the plaintiff a counterfeit fifty dollar bill, and declaring the same to be genuine; and was originally commenced in a justice’s court, where the plaintiff’ recovered a judgment of $32 damages and $5 costs. The defendant appealed to the Saratoga county court, where the judgment was reversed.

new trial. The action was commenced in, a justice’s court, and after trial a verdict was rendered for the defendant. It was then appealed to the county court, and after hearing the evidence, the county judge nonsuited the plaintiff.

(Laws of 1867, p. 2036.) The cause was tried by the court without a jury. Held: as matter of law, that the justice acquired jurisdiction of the matter, and while the same remained before him, and prior to the return day of the summons, the plaintiff had no right to take the cattle out of the defendant’s custody and repossess himself of the same.

APPEAL by the defendant from a judgment entered on the report of a referee. The plaintiff alleged, in his complaint, that the defendant was a municipal corporation, created and existing under and by virtue of certain acts of the legislature of the State of blew York; and by virtue of said acts was authorized and empowered to lay out, grade and pave streets within the corporate limits of the said city of Brooklyn.

THIS was an application on the part of the defendant Duff, to the general term of this court, for a reargument or a rehearing of a motion made by the plaintiff at the general term in November, 1869, to vacate certain orders made at the general term in June, 1869; and also for an order that the motion for a new trial on the part of the defendant Duff, upon a case, be reheard, and for such additional or other relief as the circumstances might call for.

THIS was a controversy submitted to the court, without action, under section 372 of the Code of Procedure, upon the following statement of facts: In July, 1868, an agreement in writing, and under seal, was entered into between the above named plaintiff and the above named defendant, whereby the plaintiff sold to the defendant three certain lots of land, with the buildings thereon, situate on the south side of 143d street, in the city of Hew York, together bounded, beginning…

<p>THIS was an application, under the provisions of the Revised Statutes, for a commission to prove an exemplified or authenticated copy of a will executed according to the laws of this State, the original will being alleged to be in the possession of a notary public in the kingdom of Bavaria.</p> <p>The court, at special term, denied the application, and the applicant appealed.</p>

30 U. S. notes of $100 each, purchased by the defendants, bankers in Syracuse. The notes were stolen at McGrawville, Cortland county, on the night of January .1, 1867. Handbills were immediately circulated, and advertisements published, describing these notes, among others lost at the same time, by the denomination, kind, date of issue and numbers. On the 9th of February, the plaintiff saw one of the defendants, told him of the robbery, and gave him a copy of the handbill.

THIS is an action by the receiver of an insolvent insurance company, against the defendant, upon a premium note for $350. It is conceded that the note was duly and properly assessed under the law, for the full amount, in June, 1860; that proper notice of assessment was duly published; and that the amount of said note became payable on the 22d day of August, 1860, by virtue of such assessment and notice.

On the 16th day of October, 1869, Joram Petrie died, at Little Falls, Herkimer county, intestate. He left no widow. His only next of kin entitled to share in his estate were Fannie P. Cottle, wife of O. 0. Cottle, of Buffalo, who was his daughter and more than twenty-one years of age, and Charles L. Petrie, of Little Falls, a minor of the age of seventeen years, his son.

The action was brought to restrain the defendant from foreclosing a mortgage, executed by the plaintiff, of which the defendant was the holder.

The action was brought to recover damages for the nonperformance by the defendant of the terms of an auction sale, at which he purchased a large quantity of boots and shoes belonging to the plaintiff. The defendant disputed the amount claimed to have been sold, and alleged that the sale was void by the statute of frauds.

The report of the referee shows that during the season of 1865, one Benedict Aukin delivered milk to the defendant, Monie, to be manufactured into limburger cheese for him, Aukin, and for the making of which Monie was to he paid a compensation agreed upon between them.

<p>The person named in a shipping bill as the consignee, is the regular and only consignee of the cargo, and by the terms of such bill the master of the vessel is bound to regard and treat him as such, and owes to him all the duties which the master can owe to the consignee, in any case; whether he owns the property or not.</p> <p>On the other hand, if the person named as consignee, after, being shown the shipping bill, assumes the direction and contrbl of the property, he does so (so far as the owner and master of the vessel is concerned) as consignee, and takes upon himself all the obligations and duties which the consignee, in any case, owes to the carrier.</p> <p>It will not do to allow such a consignee, after he has, as such, succeeded in depriving the carrier of the possession of the cargo, and of the lien upon it for his freight, to set up that he has no real interest in the property, and thereby turn him over to others for his remedy. Fer Foster, J-.</p> <p>If a shipper or consignor would relieve the consignee, who is merely agent for the shipper, from personal liability to the carrier, he must do it ,by letting it appear so on the shipping bill, and thus caution the carrier to protect himself, by holding on to his lien until he receives his compensation. The shipper must not throw the carrier off his guard by signing with and delivering to him a shipping bill which represents the agent as the real consignee.</p> <p>If he does so, and the agent is thereby enabled to obtain the possession of the property, as consignee, he will not he permitted to change his status to the injury of the carrier.</p>