Volume 57 — Barbour's New York Supreme Court Reports

<p>APPEAL from an order denying a new trial, and from a judgment rendered for the plaintiff, against both defendants, on a verdict.</p>

, in the second above entitled action. On the 15th day of January, 1869, the plaintiffs in that action caused to be issued to the sheriff of Onondaga county a summons and complaint in that action, with venue in that county, and the sheriff returned thereto, on the same day, that he had made proper and diligent efforts to serve the same on the defendant; that he could not be found; and that the summons and complaint could not be served personally; and it also appeared by the…

APPEAL by the plaintiff from a judgment of the county court of Seneca county, reversing the judgment of a justice of the peace. In 1865 the defendant was an acting justice of the peace of the town of Ovid, Seneca county. The plaintiff, Daniel Christopher, brought suit against one Samuel Smith for house rent, money lent and property sold, before this defendant, as justice.

APPEAL by the defendant from a judgment entered ujpon the report of a referee. The facts are stated in the opinion of the court.

. The defendant was indicted in the Wayne county oyer and terminer, on the 9th day of Hovember, 1868.

rpHE plaintiff obtained a verdict’ in this action, at the x Ontario circuit, for $553.22. The defendant moved, at the same circuit, for a new trial, on the judge’s minutes. which motion was denied. Afterwards, on the 19th day of February, 1869, judgment was entered upon the verdict, in favor of the plaintiff. The defendant appealed, to the general term, from the order denying a new trial upon the judge’s minutes, and from the judgment.

THIS was a controversy submitted to the court without action, under section 372 of the Code of Procedure, upon a case agreed on by the parties, centaining the following facts: The defendant is a fire insurance company, duly incorporated, and doing business in the State of Hew York, by virtue of the laws thereof.

APPEAL by the defendants, from an order made at a special term, directing judgment for the plaintiff upon demurrer to the second, third and fourth counts or defenses of the answer of the defendants, upon the ground of insufficiency, in not stating facts sufficient to constitute a defense.

APPEAL by the defendants from an order made at a special term directing judgment for the plaintiffs, respectively, upon demurrers to the answers of the defendants. The facts are fully stated in the next preceding case.

1 rri-IIS was an action for slander. The words charged JL and proved, to have been spoken by the defendant were, in substance, that the plaintiff, prior to her marriage, had become pregnant and had gone to a physician and had the child doctored away; the proof showing these words to have been first spoken in Jnly, 1866, and in May, 1868, repeated, accompanied by the defendant’s assertion that he “could prove it,” and that “if it was not so, the plaintiff would take it up;”…

APPEAL by the defendant from a judgment entered at a special term.

The complaint contained two counts: 1. For rent upon a lease, under seal, by the plaintiff to the defendant, dated September 28th, 1847, of 108 acres of land in Shandaken, Ulster county, for twelve years. 2. A count for use and occupation of the same lands from September 28, 1847. The answer set up three defenses : 1. A general denial. 2. Adverse possession by the defendant and those under whom he claims, for twenty-five years. 3.

<p>Although one may have intended to defraud the creditors of another by taking and converting his property into cash, such intention will be rendered haz'mless by his delivez-ing the proceeds of the sale to the debtor, or his wife who is his authorized agent.</p> <p>And if he subsequently receives a portion of such proceeds, with like intent, fi-ozn the debtor’s agent, for the use of the debtor and his wife, and to be handed over to them, or for their use, as they may want, such intent will be rendered harmless by his paying over the money to ci'editors, or to the debtoi1, or his wife, by his directions.</p> <p>A settlement between such person and the debtor, and payment of the amount due for such property, or its proceeds, will discharge the former from any liability to creditors of the owner who subsequently obtain judgments against the latter.</p> <p>A creditor at large of another is not in a situation to question the lonajides of a transfer of the debtor's property, or the right of a third person to take such property, or his right to retain the proceeds of its sale. ■</p> <p>The statute in relation to conveyances of a debfcoz-’s property with the intent to delay, hinder and defraud his creditors, has no application to a fi-audulent transfer of such property by any one except the debtor; and no one can avail himself of the statute except a creditor who is hindered, delayed or defrauded thereby. A creditor at large cannot be hindered by such transfer, within the purview of the statute.</p> <p>Where the cause of action set out in the complaint was that the defendant had in his possession either the property of the plaintiff’s judgment debtoi", or its proceeds, for which he had never accounted, and the referee found that before the plaintiff’s judgment was rendered, the defendant had fully accounted with the debtor for all the property, and proceeds of property in his possession; Held that the referee should have granted a nonsuit.</p>

This proceeding was taken By Halsey R. Grant, and others, plaintiffs or claimants, against Cornelius Van Dercook, the defendant and appellant, as owner, under the statute of 1854, as amended By the statute of 1858, to foreclose a mechanics’ lien on certain premises of defendant, in the town of Watervliet, Albany county, H. T. The lien was created and filed in the town clerk’s office, of the town of Watervliet, September 6, 1867.

Motion to dismiss an appeal from the surrogate. This was a motion to dismiss the appeal of Robert H. Pruyn, as executor and legatee, taken in due form on the thirteenth day of June, 1866, from a portion of the decree of the surrogate of Albany county, admitting the will of Blandina Dudley, deceased, to probate, by which counsel fees were awarded to counsel appearing in support of, and in opposition to, the will. • The appellant became executor by virtue of a codicil.

.The action was brought in 1858, by Josiah Eaton, then in life, against the defendant John P. Alger, and Wilks 8. Alger, since deceased, on a promissory note, purporting to be made by the defendant John P. Alger, and indorsed by Wilks S. Alger, for $629.75.

The action was by John McAndrews against John Santee, for the reeovery of the purchase price of a quantity of cord wood. On the trial, John Santee, the defendant, and Isaac Santee, as witnesses for the defense, testified as to the terms of the agreement for the sale of the wood, and that it was sold subject to inspection and measurement of the Erie Railway wood agent.

<p>The plaintiffs’ sheep broke out of the lot where they were grazing, and mingled with the sheep of the defendant, which were being driven along the highway, without any fault on the defendant’s part. All he did was to allow them to go along the highway with his flock to his own premises where they could be conveniently yarded and separated. On arriving at the defendant’s premises the plaintiffs’ sheep were separated, and turned into the highway and driven towards the place where they mingled with the defendant’s flock. Held that upon these foots there was nothing to justify the conclusion that the defendant either unlawfully took the sheep in question, or converted them to his own use.</p>

<p>APPEAL from an order made at a special term. The facts sufficiently appear in the opinion.</p>

This action was brought by the Corn Exchange Insurance Company against Stephen E. and Edward Babcock,, and Armina Babcock, the wife of the latter, upon three promissory notes.' The notes were all indorsed by Armina, in substantially the following form: “For value received, I hereby charge my individual property with the payment of this note. “Aemiha Babcock.” The action was in the ordinary form against makers and indorsers of a promissory note, except that the above…

<p>Remedy on Principal and Collateral Obligation.</p> <p>In general, remedies upon the primary debt and the collateral security may be prosecuted at the same time, though but one satisfaction can be had.</p> <p>An action on the original demand is not necessarily barred by judgment obtained, without satisfaction, on the collateral, even though one of the defendants in that judgment is the sole defendant m the action on the original demand.</p> <p>The test is,—has satisfaction been had ? If not, both proceedings may be continued.</p>

QTIOH for a new trial. The action was brought for a partition of the real estate of William Taylor, of Bye, Westchester county, deceased. The plaintiff, Mary Louisa Van Tuyl, and the defendants, Sophia Jane Van Tuyl, Maria E. Taylor and Isaac Y. Taylor, were his children by a former marriage, and claimed to be his sole heirs at law, and sought in this action to exclude the defendant Catharine Taylor and her children from sharing in said estate.

APPEAL by the defendant from a judgment entered upon the report of a referee. The action was brought to recover the value of a quantity of pine timber and logs cut by the defendant, and which were claimed by the plaintiff. The referee reported in favor of the plaintiff.

The action was tried before a justice of this court, at the February special term, 1868, without a jury.

Controversy submitted without action. Elizabeth M. Conkling maae a contract to sell and convey to Thomas Pruden a lot of land on the westerly side of Seventh-avenne, between Fiftieth and Forty-ninth-streets, in the twenty-second ward of the city of New York. Pruden assigned the contract to J. Romaine Brown, the defendant.

THIS action, was brought upon a bond given in part payment for a lot of ground sold by the plaintiff to William E. Bird, the testator of the defendants. The counsel for the testator, on examining the title, was of the opinion that it was' defective, and so advised his client. This bond was given with a recital stating that it was necessary to procure certain releases, which could not then be obtained, but that the plaintiff should cause the same to be procured.

THIS was a proceeding upon habeas corpus, instituted by the relator, to obtain possession and custody of her infant daughter, Maria D. Barbour, who was nine. years of age, and upwards. On the 9th of May, 1866, the respondent, Benjamin Gates, and the infant, entered into indentures binding the infant to said Gates until she should attain the age of eighteen years.

a mechanics’ lien. In 1867 the defendant, Michael O’lSTeil, contracted with the plaintiffs, who were carpenters engaged in building houses and furnishing materials for building, to build for him a house on premises which he claimed to own, in the town of Pamelia, Jefferson county, and to furnish lumber and other materials therefor.

Demurrer to answer. '■ This action was by Charles Holmes against Sarah A. Holmes, for a divorce a vinculo. The defendant served an answer setting up three several defenses.

OH the 6th of October, 1865, John G. Perzel, aa general partner, and Herman A. Schleicher, aa apecial partnér, formed a apecial partnerahip under the firm name of “ John G. Perzel.” They commenced buaineaa in the city of Hew York, and continued to.tranaact the same there until the spring of 1866, when they removed their business to the county of Kings.

APPEAL by the defendants from a judgment entered upon the report of a referee. The action was brought to recover the amount of two promissory notes, and a balance of account. The claims were for the purchase price of a steam engine and boilers and other property sold the defendants for their factory, known as the Glenville Mills. The contract of sale was made by lettér. The defendants set up in their answer a warranty and breach, and asked to recoup damages.

The prisoners were indicted for grand larceny, in stealing from the person of George W. Wells, “ promissory notes for the payment of money, being due and unsatisfied, and of the kind known as United States Treasury notes,” of different denominations and values; “ promissory notes for the payment of money; of the kind known as bank notes, being due and unsatisfied,” of different denominations and values; “bank bills of banks to the jurors unknown, and of a number and…

The plaintiff in error was indicted in the- court of oyer and terminer, in the county of Hew York, on the 9th of Hovember, 1869, for grand larceny, in stealing money frond a house. The indictment was afterwards ordered to be sent to the court of general sessions for trial. On the trial there, Thomas F. McDowell, a juror, being challenged for favor, was asked if he had formed any opinion as to the prisoner’s general character.

WRIT of error to the court of sessions of Saratoga ' county, to bring before this court for review the trial and conviction of the plaintiff in error, lipón 'an indictment for grand larceny. The writ did not, in terms, require any return of the judgment; nor did it in the usual form require a return of all proceedings on the indictment “ if judgment le thereupon given.” hTor did the county cleric’s return to the writ contain the record of the judgment of the court.

THIS is a writ of error to the court of -sessions óf Saratoga county, to bring before the court for review the trial and conviction of the plaintiff in error, on an indictment for burglary and larceny. A new trial was sought on account of alleged errors of law, committed by the judge in excluding evidence, and in charging the jury, and'refusing to charge them as requested by the counsel for the prisoner.

<p>The correction of errors in the proceedings and determinations of inferior political jurisdictions is matter of legal, and not of equitable, cognizance.</p> <p>There is a wide and radical distinction between bringing the record of the proceedings of an inferior body before the court, for the purpose of having them reviewed and passed upon directly by the courts, and either reversed or affirmed, and bringing an original action, founded on some alleged error in the proceedings of such body, and demanding judgment, not upon errors in the record, but upon the allegations of error, in the complaint.</p> <p>The office which a relator performs is merely that of instituting a proceeding for and in behalf of the people.</p> <p>The people themselves being the plaintiffs, in a proceeding by mandamus, it is not of vital importance who is the relator, so long as he does not officiously intermeddle in a matter with which he has no concern. The reason applies, with equal force, to the question as to who is a proper relator in a writ of certiorari. ,</p> <p>If a tax is erroneous as to an individual, he has his remedy by writ of error or certiorari. And if the writ can be used to correct an error where the interest of one individual is injuriously affected, there can be no sound reason why it should not be invoked when the rights of a community are invaded.</p> <p>The public have the same interest that a public act, like the laying of a tax, shall be properly performed, as they have that a public officer shall do his duty; and if a mandamus can be sued out, on the relation of a tax-payer, to compel assessors to levy a tax, the same reasoning will sustain a writ of certiorari to correct an erroneous tax.</p> <p>It is no objection to such a writ that it removes the records of more than one road opened by the legislature, under different laws passed at different times, and by different commissions; that the parties are different, the subjects are different, the errors assigned are different, and the judgment may be different; where there is but one warrant, and one assessment upon which such warrant is based, sought to be reviewed.</p> <p>Although the relator in a certiorari has made more assignments of error than the facts warrant, or some improper parties are made defendants, it is proper for the court to quash or correct such part of the proceedings sought to be reviewed as are illegal, and affirm such as are legal, provided one is independent of the other.</p> <p>The court will, in the exercise of a sound discretion, review the proceedings to be brought up by the writ, or give judgment quashing the writ, and will consider the case upon its merits if the public interest will be thereby subserved.</p> <p>On a common law writ of certiorari, the inquiry is not limited to the question whether the inferior tribunal had jurisdiction of the subject matter, and its proceedings and judgment were within that jurisdiction; but the court will examine the case upon the whole evidence, to ascertain whether any error has been committed.</p>

Motion to continue an injunction. This action was brought by Patrick H. Hanlon against the Board of Supervisors of the County of Westchester, the Commissioners of Madison-avenue in that county, and others. The facts involved in the merits of the action appear in the opinion.

<p>Motions by the defendants to dismiss the complaint, or perpetually stay proceedings ; to make the complaint more definite and certain, and to strike out irrelevant and redundant matter ; and to set aside an order appointing a referee to take an- affidavit for purposes of a motion.</p> <p>This action was brought by J. H. Ramsey against The Erie Railway Company, Jay Grould; James Fisk, Jr., Frederick A. Lane, and others.</p> <p>The material parts of the complaint are stated in our report of the. motion to vacate a preliminary injunction and other orders, 7 Abb. Pr. N. 8., 156.</p> <p>The action was commenced in November, 1869. The relief demanded inn the complaint was, among other things, to suspend some of the defendants from the exercise of their offices and trusts in the Erie Railway Company, and to compel them to account, for their alleged official misconduct as officers, trustees and directors of such company. By the allegations of the complaint, it appeared that the plaintiff was, at the time of the commencement of the action, “the own?r and holder of a past due claim for money against, and legally payable by,” the Erie Railway Company. The complaint also contained allegations of a waste and misapplication of the funds of the corporation, by the other defendants, being the directors and parties who, it was alleged, had made themselves answerable for the loss thus falling upon the corporation. The defendants, in January, noticed a motion for the special term to be held at Owego, on the second Tuesday of March, 1870, for an order dismissing the complaint, or perpetually staying proceedings in the action; and, in case such motion should be denied, they would move, at the same time and place, upon the complaint, to strike out certain portions of the complaint as irrelevant or redundant, and. to make it more definite and certain, by stating therein the precise nature and amount of the “past due claim,” for money, mentioned in the complaint, and whether it was ever presented by plaintiff to the Erie Railway Company for payment, and if so, when and how, and by further stating the number of each class of bonds and shares of stock owned by the plaintiff, and when and by whom said bonds were made, and when payable, what amount is now due thereon, whether such amount consists of principal or interest, and .whether demand of payment has been made, and whether the shares of stock of plaintiff are standing in his name, on the books of the company, and, if so, when they were transferred to him, and if not, whether and when he de? manded to have such transfer made thereon.</p> <p>The motion to dismiss plaintiff’s complaint, or perpetually to stay his proceedings thereon, was founded upon the affidavits, among others, of' the'plaintiff "taken before a referee, under subdivision 7_of .section 401 of the Code, and of David Gfroesbeck and J. K. Fro thingham. From these affidavits it appeared that, subsequent to the commencement of this action, a tender was made to plaintiff, on behalf of the Erie Railway Co., at Rochester, by Mr. Dudley Field, who offered to pay the'plaintiff his claims against the company, and asked the plaintiff what they were, and held toward him a package of legal tender notes, said to contain ten thousand dollars. The money was not received by the plaintiff.</p> <p>Another tender was subsequently made to plaintiff of the amount of interest, at seven per cent., which might "be due on his preferred' stock of the Erie Railway Company, which was also refused. It also appeared that the plaintiff was an attorney and counselor at law ; that he had borrowed certain bonds from David Groesbeck, some of the proceeds of the sale of which had been expended in this suit. On the part of the plaintiff, affidavits were read, stating that the action was brought in good faith, and for the purpose of bringing the defendants, who were directors, to an accounting and a removal from their offices.</p> <p>Subsequent to the noticing of these motions, the plaintiff" had procured an ex-parte order of the special term, sitting at Albany, for the examination of A. S. Diven, iinder subdivision 7 of section 401 of the Code. Upon such examination, the attorneys for these defendants appeared, and on their behalf interposed sundry objections to the examination, which the referee overruled, and the examination was commenced. Before it was concluded, the defendants’ attorneys, on their behalf, procured an order staying further proceedings on the examination of Mr. Diven, upon an affidavit, stating several alleged irregularities in the procuring and entry of the order, and they gave notice of a motion, on behalf of the defendants, for the Owego special term, to set aside the order for the examination of Mr. Diven.</p> <p>All of these motions came on to be heard at the special term held at Owego, on the second Tuesday of March, 1870.</p>

THIS was art application, made by Henry J. Anderson, under the “Act in relation to frauds in assessments for local improvements, in the city of Hew York,” passed April 17, 1858, (Laws of 1858, ch. 338,) to vacate an assessment for flagging sidewalks in the First avenue, in the city of Hew York. The following grounds of objection to the assessment were specified in the petition. . 1.

The complaint in. the justice’s court was for fraud alleged to have been committed by the defendant on the sale of a mare. It averred that the defendant did wrongfully, falsely and fraudulently, and with intent to deceive the plaintiff, represent said mare to be ten or twelve years old, which representation induced the plaintiff to purchase said mare; when in truth and in fact said mare was, at the time, more than twenty-five years old; which fact the defendant well knew.

THIS was a case submitted to the court, without action, under section 372 of the Code of Procedure. The defendant Peter A. Wise, manufacturer of hay elevators and forks at Stockbridge, H. Y., having become insolvent and unable to pay his debts, sold all his stock in trade and real estate and personal property, except such as is exempt from execution, to the defendant Henry Horton, for the consideration of $10,962.21, that being its full value.

THIS action was brought to recover $1000, the balance of the consideration money for the purchase of the interest of the plaintiff’s intestate in a farm in Grreenbush, in the county of Eensselaer. It appeared from the undisputed evidence on the trial, at the circuit, that one-Peter W. Witbecb had once held the premises in question, under a lease from Stephen Van Eensselaer, reserving certain perpetual rents, with right of reentry for non-payment.

<p>The statutes of the State of New York against usury do not apply to loans made by national banks organized under the act of congress, passed June 3, 1864, entitled “ An act to provide a national currency,” &c.</p> <p>In regard to the express provisions of that act, the federal government has exercised its sovereign power over the law of these institutions; and to that extent its power, and its enactment, is exclusive. The State law penalties have no application to the system.</p> <p>Although the statute has subjected national banks organized under its provisions to the judicatories of the State, so that as to the form of the action and the proceeding in its courts, the State system of practice is, and must be adopted; the federal government not having'in that particular expressly asserted its own power; yet in whatever court the action may be pending, the law prescribed in the express provisions of the act of congress is sovereign and exclusive. N</p>

<p>APPEAL from an order made at a special term, overruling a demurrer to the complaint.</p> <p>The complaint alleges that the New Jersey Steam Navigation Company is a corporation organized under the statutes of New Jersey, and were engaged as common carriers between the cities of New York and Troy, in this State; that as such carriers they undertook to carry the baggage of one Christopher Pick from New York to Troy; that they lost his said baggage, and neglected to pay him the value thereof; that he afterwards recovered, a judgment against the said corporation therefor, which judgment was duly entered and perfected in Schenectady county, in this State, in which action the said corporation appeared by its attorney; that the judgment remains in full force. That in November, 1867, an execution was issued upon said judgment, to the sheriff of the city and county of New York, in which county the said company had its place of business, and that the said sheriff duly returned the said writ wholly unsatisfied, being unable to find any property of the company to satisfy the same. That afterwards, in August, 1868, the said Pick caused a notice to be served on the said company, by serving the same on the attorney of the said company, who appeared in the action, and upon the defendant, Daniel Drew, who was the last president of the said company known to said Pick, which notice informed the said company and its attorney and president, of the issuing, and the return unsatisfied, of the said execution; and said notice also contained a demand upon the said company and its president and attorney, that it should forthwith apply its property, or so much thereof as should be.necessary, to the satisfaction of said judgment; that no compliance was made with such demand, and that on the 3d of October, 1868, an order was obtained at a special term of the Supreme Court, held at Schenectady, upon affidavits stating, among other things, the facts above mentioned, and also that the company had never filed any designation of any person upon whom papers or process could be served, in the office of the Secretary of State; that there was at least one other judgment against said Company, upon which execution had been issued and returned wholly unsatisfied; that said company had never continued its organization, or to exercise its franchises; had neglected to hold any meeting of its officers, and that there were no officers left to manage its affairs, except such as might be holding over from a term long expired. That said order to show cause was made returnable at a special term to be held at Schenectady on the 10th day of October, 1868; and the said order also required the said company to show cause why a receiver of its property should not be appointed; that said order and affidavits were, duly served upon the said attorney, pursuant to the directions of said order. That said special term, on the day last mentioned, by its order appointed the plaintiff the receiver of all the property of the said company, both legal and equitable ; that said receiver immedaitely duly qualified and gave security, as required by said order, and now is, and was, and since the 10th day of October, 1868, hath been, such receiver, and was vested with all the title of its property, and was entitled to the possession thereof; and that afterward, and before the 3d of March, 1869, the said order, so appointing him receiver, was duly served on both the said attorney and the defendant in this action, who then was president of said company, as aforesaid, and that no other person has ever since been elected president thereof.</p> <p>The plaintiff further alleged, upon information and belief, that for several years prior to December, 1864, the said company owned large amounts of property of divers kinds, and among other things the whole or a large interest in two vessels, one being the Francis Skiddy,- that the said company, through the defendant, then its agent and principal officer, in the fall of 1864, sold to another company such of its property as then remained, and the defendant became and was the president, or one of the principal officers of said new company; and that by means of the sale, the defendant received large amounts of money or property, for the property so sold to the said new company, which, or the avails of which, he now has; and that he is largely indebted to the New Jersey Steam Navigation Company therefor; that he was, also, a large stockholder in said last named company. That the plaintiff, since his appointment as receiver, has caused demand to be made upon the defendant that he deliver to the plaintiff all the property, or the avails thereof, in his hands, or under his control, which was of the first mentioned company; but that he has neglected and refused, and now neglects and refuses, to do so. The plaintiff” demands that the defendant be ordered and required to account to the plaintiff for the property which was of the said New Jersey Steam Navigation Company at the close of the business of 1864, and particularly of that which came into his hands; and that he may be compelled to deliver the same, or the avails thereof, or pay its value to the plaintiff; and that the plaintiff may have judgment for such delivery or for the value thereof</p> <p>The defendant demurred to the complaint, specifying two grounds of demurrer: 1st. That the plaintiff has not legal capacity to sue. 2d. That the ■ complaint does not state facts to constitute a cause of action.</p>

<p>An order denying a motion to strike out a pleading as frivolous cannot be ■ reviewed on appeal.</p> <p>It is not a substantial right to have it stricken out. On the contrary, it is a matter of discretion with the judge whether it'shall be so stricken out or not. Under our present system, if the pleading is not so bad as to show on its face that it is frivolous, no argument should be allowed, and the party should be left to a demurrer.</p> <p>If a judge improperly holds a pleading to be frivolous, the order is appealable, because the party putting in' the pleading loses a right to such a pleading; but the reverse is not true. No right is lost, and the party objecting to its sufficiency may have it set aside, on demurrer.</p> <p>A pleading, to be frivolous, must show its defects on the first inspection.</p>

<p>Where a plaintiff has had an opportunity to interpose the defense of fraud and corruption in an arbitrator, in an action brought against him upon the award, an injunction will not be issued to restrain the proceedings in that action, either before or after judgment.</p> <p>His remedy is to move, in that action, for such relief as the facts may show he ought to have, in respect to the judgment which has passed against him, therein.</p>

APPEALS from an order made at a special term, denying a motion to dissolve an injunction, and from an order refusing to entertain a second motion to dissolve.

THE defendants noticed a motion to be heard at Delhi, in Delaware county, on the 16th of May, 1870, to change the place of trial. The hearing was adjourned to the 31st of May. The plaintiff then served a notice of a motion for other relief, to be heard on the second Monday of June, and obtained and served an order staying proceedings on the first motion until the second motion was heard. This latter order staying proceedings was served on the 30th of May, 1870.

The testatrix became a widow in 1846, and from that time until her death in 1860, resided with the respondent, her son, and who acted as her agent in the collection of rents and other moneys. The testatrix, at the time of her death, was over eighty years old.

MOTIORT for a new trial, upon exceptions ordered to be heard in the first instance at general term. The action was brought by the plaintiff as assignee of Gaylor Sheldon and Alexander G. Sheldon, against the defendant, to recover sixty shares of the stock of the Illinois and Mississippi Telegraph Company, and also the sum of $630, with interest thereon, being dividends received by the defendant upon said stock.

THIS case is presented, upon exceptions taken at the trial, and ordered to be heard at the general term in the first instance. The plaintiff Kowing, in’ September, 1865, left in the defendants’ custody certain H. S. securities, which the de- fendants had purchased for him. After the bonds had been so deposited, in ¡November, 1865, Kowing sent the defendants directions, in writing, not to deliver his bonds to any person, except upon his written order.

This action was brought by Henry Conklin, against William H. Furman and thirteen others, to recover against the defendants as stockholders of the Newtown and North Hempstead Plankroad Company. The indebtedness was accrued against the company on the first day of January, 1855.

APPEAL by the defendant from a judgment entered upon the report of a referee. The plaintiff, by his complaint, claimed to recover, 1st. On a promissory note for $211.16, dated November 7, 1867, payable one day after date; 2d. On a due-bill for $20, of the same date with the note; and 3d. $50 for work, labor and services.

The Brooklyn City Railroad Company, a short time after its incorporation, sought to obtain from the City of Brooklyn permission to lay railroad tracks upon sixteen different streets of that city, and as a part consicb eration for such franchise entered into a bond with the city, wherein, among other things, it covenanted and agreed to keep the pavement of such streets “in thorough repair within the tracks, and three feet on each side thereof, with the best water stone, under…

<p>Individual Liability. — Pleading. — Complaint against Trustees.—Judgment against Corporation.</p> <p>An action should not be dismissed at the trial, merely for insufficiency of the complaint, if the cause of action is proved, and defendant has not been surprised or prejudiced.</p> <p>In an action by the judgment creditor of a corporation to recover from a stockholder upon his individual liability, the debt of the corporation, a general averment of the recovery of the judgment and its being unpaid, is a sufficient statement of the indebtedness of the company to the plaintiff.</p> <p>A judgment against a corporation is evidence, and, it seems, conclusive, in an action to enforce the individual liability of the trustees.</p> <p>The case of Witherhead ®. Allen, 3 Keyes, 562, explained</p> <p>Under the General Manufacturing Companies act of 1848,—which declares that if a company fails to file an annual report, the trustees shall be liable for all* debts of the company then existing,—the liability is not restricted to debts which were contracted by the parties sued.</p> <p>In such an action, the allegation of the complaint, that defendants failed to file any such report as is required by law, within twenty days of the first of January in each year,—is sufficient, without further recital oi the statute requirement.</p>

<p>Exceptions.</p> <p>This action was brought by Max Salinger against Edward Simmons and others, the defendants, as common carriers and warehousemen, to n cover the value of a cask of gin lost by their negligence.</p> <p>The complaint alleged :</p> <p>1. That the defendants, as common carriers, September 22, 1864, contracted to carry a cask of gin for the plaintiff from the city of Hew York to Catskill; and that they so carelessly and negligently conducted themselves in that regard,'that the cask of gin was wholly lost to the plaintiff- and he demanded for judgment one hundred and seventy-five dollars.</p> <p>2. That the defendants, as common carriers, agreed to carry a cask of gin from Hew York to Catskill, consigned to Ira Sherman, East Windham, H. Y. ; that the gin arrived at its destination, and was stored by the defendants in their storehouse, a warehouse at Catskill Point, under the charge of J. T. Huntley, their agent, to be delivered to Ira Sherman on his order, and in case of his refusal to receive the same, to notify the plaintiff and to keep the same stored for him ; that Ira Sherman refused to receive the liquor; that the defendants did not notify the plaintiff thereof; that it was stored in their warehouse and was lost. The defendants interposed several answers to the complaint.</p> <p>The case came on for trial before Justice Peckham and a jury, at the Gfreene County Circuit, in Hovember, 1868.</p> <p>The plaintiff proved, that on the 22nd day of September, -1864, at Hew York, he shipped a barrel of gin on the defendants’ boat, to be conveyed to Catskill, and which was consigned to Ira Sherman, at East Wind-ham, which is a place distant from Catskill twenty miles.</p> <p>The goods arrived at Catskill, and were put in .the storehouse of the agent of the defendants, John T. Huntley, at Catskill, and of five or six other steamboat proprietors, who also kept a hotel under the same roof with the storehouse.</p> <p>Huntley put this cask in the storehouse for the consignee, and subject to his call or order. That was the. custom.</p> <p>A few days after, one Newman a teamster whose business it was to carry goods, came to the storehouse, and the cask of gin, without any order of the consignee, was put on his wagon by Huntley, and he carried it to Sherman, the consignee. Sherman was away from home, and the liquor was deposited on the ground in front of Sherman’s house.</p> <p>A few days after, Newman returned to Catskill, and Sherman stopped him, refused to take the gin, repudiated the purchase, claimed he had not ordered it, and directed Newman to take the goods back to the place where he got them from. The cask of gin was again loaded up, and it was carried to Catskill, received at, and deposited in, the storehouse in Huntley’s possession, where Newman swears he saw it two weeks after-wards.</p> <p>There was also evidence that Huntley was irresponsponsible.</p> <p>Upon this proof, the plaintiff cla'med that the defendants were guilty of negligence, either as common carriers or warehousemen.</p> <p>1. In delivering this gin for storage to Huntley, an irresponsible man, by reason whereof the plaintiff lost his property. t</p> <p>2. In losing the property, and not accounting for its loss, after it was put in the storehouse, on the theory that Huntley was their agent.</p> <p>The court nonsuited the plaintiff. Exception was duly taken, and the plaintiff insisted that on the ques- • tions presented the case should go to the jury.</p> <p>These positions were overruled, and the court decided there was no neglect by defendants, and ordered a nonsuit. The plaintiff excepted. The court made an order that the case and exceptions be heard in the first instance at general term.</p>

APPEAL by the defendant from a judgment entered upon the verdict of a jury in an action upon a policy of insurance. The material facts, and the legal questions arising thereon, appear sufficiently in the opinion of the court.

APPEAL by the plaintiff from an order of the special term dissolving an ex parte injunction restraining the defendant from using the trade-mark of the plaintiff, and from selling as “ Congress water,” other water than the natural water of the Congress Spring at Saratoga Springs. The motion was based upon complaint, answer and affidavits.

APPEAL by the defendant from a judgment of the city court of Brooklyn, and from an order denying a motion for a new trial. The action was brought by the plaintiff, as administratrix of the estate of her deceased husband, Henry Eckert, to recover damages for injuries received by the intestate, by being run over, or struck, by the defendants’ locomotive, or cars, in consequence of which injuries he died.

THIS was an action by Losee, a vendee, against Morey, the vendor, for the specific performance of a written agreement for the sale of real estate. Cramer was made a defendant as a subsequent purchaser, from Morey.

11HIS was an appeal by the defendant Comstock, from an . order made at the Albany special term, appointing John W. Thompson, Esq., receiver of 193 shares of stock of the Pioneer Paper Company, with power to sell the same, “if in his judgment the interests of the parties will be promoted by the sale,” “ at public auction,” and requiring “ all the parties to this action to forthwith assign and deliver said stock to said receiver, so that new scrip therefor may be issued to…

<p>MOTION" "by the plaintiff for leave to file a supplemental complaint.</p>

THIS was an appeal from a judgment of the county court of Schuyler county. The action was for killing the plaintiff’s cow, by the defendants, upon the track of a railway. The action was commenced in a justice’s court, and from the judgment there entered, there was an appeal to the county court, where there was a verdict for the plaintiff. A motion was made for a new trial and denied, and from the judgment entered on the verdict an appeal to this court was taken.

THIS case comes here upon certiorari to the county judge of Otsego, to review his proceedings in declaring vacant the offices of the relators, as commissioners of the town of Milford, in said county, to borrow money on the bonds of the town, to be invested in the stock of the Albany and Susquehanna Railroad Company; and in appointing the defendants to fill said offices.

THIS action arose in a justice’s court. It was for breach of warranty in the sale of a cow, and was tried before the justice, without a jury, and judgment rendered for the defendant. There was an appeal to the county court of Otsego county, the judgment affirmed in' the county court, and appeal to this court.

THIS was an action brought, in June 1865, by the plaintiff against the defendants,-to recover possession of an island situate in. the town of Davenport, Delaware county, and State of Hew York. The plaintiff claimed three acres of land, in his complaint, the same more or less. The defendants, by their answer, 1st. Made a denial; 2d. Alleged that they had acquired the title by adverse possession ; 3d. That they held it by virtue of a deed from Philo Andrews and wife to them.

THE defendants were, at the commencement of this action, commissioners of highways of the town of Hart-wick, Otsego county. In 1869, the plaintiff entered into a contract with the defendants and the commissioners of highways of the town of Otsego, to build a bridge across the Oaks creek, a stream which is the boundary line between the said towns of Otsego and Hartwick, and was to receive therefor $575.

THE plaintiff in error was indicted, tried and convicted, in the court of sessions of Tioga county, of a misdemeanor, in having voted at the general election of 1868, for electors of president, &c., governor, &c., member of congress and assembly, &c., having been previously convicted of a felony, and sentenced to two years’ imprisonment in the state prison, at hard labor, and not having been pardoned, or restored to citizenship.

THIS action was brought to recover the value of a horse, wagon, harness and sleigh, all of the value of $115, which the defendant caused to be sold on an execution issued upon a judgment in favor of himself, and against the plaintiff and. one John E. Smith. The plaintiff claimed the property at the time of the sale as exempt from levy and sale on execution, and forbade the sale on that ground, mentioning each article by name.

THIS was an áction on a bond given for the jail limits, and was tried at the Greene circuit, November, 1870, without a jury. Isaac M. Cooper, one of the defendants, had been taken on execution against the person, and had given this bond, for the limits. He afterwards went beyond the limits, and the bond was assigned by the sheriff to the plaintiff, who brought this action. The defense was that Cooper was discharged by the county court, prior to the escape.

THIS was a motion by the plaintiff to set aside' a nonsuit granted by Justice Hogeboom at the Albany circuit, in 1866, and for a new trial. The action was brought to recover damages for personal injuries, alleged to have been sustained by the plaintiff on the 25th of April, 1865, at West Troy, in consequence of the negligence of the defendant. The accident occurred on the day of the public funeral of President Lincoln, at Albany.

mHIS is a certiorari, brought to review the action of the 1 county judge of St. Lawrence county, in certain proceedings had, under the provisions of “An act to amend an act entitled ‘ an act to authorize the formation of railroad corporations, and to regulate the same,’ passed April 2d, 1850, so as to permit municipal corporations to aid in the construction of railroads,” passed May 18, 1869.

By an act of the legislature of this State, passed April 15th, 1854, (Laws of 1854, p. 554,) it was provided that all persons who should become stockholders pursuant to the act, should be constituted a body politic and corporate, by the name of “The United States Inebriate Asylum,” which should continue for the period of fifty years, subject, however, to amendment, modification and repeal by the legislature, and have power to sue and be sued, and have a common seal.

<p>In this case, reported ante p. 155, at the end of the referee’s findings of facts, (p. 162,) the following additional facts, found by him, should have been inserted, but were accidentally omitted. As they are perhaps necessary to a proper understanding of the case, they are here given.</p>