Volume 57 — New York Reports

<p>The rule, that, in the absence of fraud, concealment or improper practice, the legal presumption is, that stipulations contained in a common carrier’s receipt for freight, limiting his common law liability, were known and assented to by the person receiving it, applies to the carriers of passengers with their baggage.</p> <p>Plaintiff took passage on one of defendant’s steamers for Europe, she received on payment of the passage money a printed ticket signed by defendant’s agent, containing a clause in substance, that the company was not to be held liable for loss or damage to baggage in any sum unless the same shall have been proved to have been occasioned by gross negligence of the company or its agents, or in any event beyond the sum of fifty dollars, unless a bill of lading or receipt was signed therefor, specifying the articles and their values, and that money, jewelry and all valuables were at the passenger’,s risk, unless placed in the company’s charge, and a bill of lading or receipt signed therefor. On going aboard,plaintiff’s trunk was delivered into the custody of defendant’s agents, who assumed to take charge of it; at the end of the voyage defendant did not produce it or in any way account for it. In an action to recover for the loss of the trunk and contents, lield, that the evidence was sufficient to sustain a finding by a jury of gross negligence; but, that in the absence of a bill of lading or receipt as specified in the contract, a recovery could not be had for over fifty dollars, and no recovery could be had for jewelry or silverware.</p>

This action was brought to charge defendant with certain installments of rent reserved in a lease from plaintiff of a store in the city of Rochester.

This action was brought upon a promissory note, dated 12th February, 1869, given by the defendants to the plaintiff for the sum of $435.16, payable four months after date. The making of the note was admitted, and the questions litigated on the trial and involved in this appeal arose out of the matters set up by the defendants in their answer, and are stated in the opinion. The court directed a verdict for plaintiff, which was rendered accordingly.

(Reported below, 59 Barb., 344.) This action was brought by plaintiff to recover an amount alleged to be due for salary.

of plaintiff entered upon the report of a referee. The action was for the conversion of a quantity of lumber. The facts sufficiently appear in the opinion. Defendant being in possession of the lumber, under a fair purchase, was prima facie the owner thereof. (Fish v. Skutt, 21 Barb., 333.) To defeat this presumption plaintiff was bound to establish ownership in himself by proving title to the land on which the lumber grew.

This action was brought in form to recover the possession of sixty-two bales of cotton.

This action was brought upon a policy of fire insurance. The facts pertinent to the questions presented on the appeal sufficiently appear in the opinion. Plaintiff’s neglect to notify the Westchester Insurance Company is a default on her part, which, if it has caused a loss, is one that she cannot impose upon defendant. (McMahon v. P. M. & F. Ins. Co., 2 Frost [N. H.], 15; Bilbrough v. Met. Ins.

This was an action brought by plaintiffs as heirs at law and next of kin of George Richtmyer, late of Conesville, Schoharie county, deceased, against defendants, the widow, next of kin and heirs at law of Abraham Richtmyer, to recover certain real estate and the value of certain personal property alleged to have been held in trust by said Abraham for the benefit of George, his heirs and next of kin.

(Reported below, 6 Lans., 79.) This action was brought to restrain the defendant from so removing clay and sand from a piece of land on the bank of the Hudson river, in the town of Cornwall, in Orange county, as to cause land of the plaintiff adjoining it to break away and fall down into the excavation made thereby, and also for an account and payment of damages already sustained.

<p>Plaintiffs earned, on board, their vessel, a cargo of wheat, from M. to 0. By the bill of lading it was to be delivered “ as addressed on the margin, • or his or their assignees or consignees, on paying the freight and charges noted; ” on the margin was written “ Acct. T. L. Baker, to Oity Bank ” (defendant). On arrival, defendant’s cashier directed the wheat to be delivered at an elevator, subject to its order, saying, also, that the proprietors would pay freight. The proprietors of the elevator paid a portion of the freight, and gave a check on New York for the balance) which was sent forward, presented, payment refused, and the drawers duly notified. Defendant acted in the matter as agent of the M. Bank, but this fact did not appear on the bill of lading, and was unknown to plaintiffs. In an action to recover the balance of the freight, held, that defendant, as consignee, upon acceptance of the wheat (which was done by the order) and delivery at the elevator, became liable for the freight; that it was not discharged from its liability by the order, or by the assurance that the proprietors of the elevator would pay; and, as there was no agreement that the check should be taken as payment, and no loches, to the damage of defendant, the taking of the check did not discharge defendant from liability.</p>

This action was brought upon a policy of insurance. By the policy the defendant insured Elizabeth F. Lewis, $2,000 upon the “ body, tackle, apparel and other furniture of the boat called the 1 A. Newcomb,’ ” of Oswego, from the 1st day of May, 1867, to the 1st day of May, 1868.

-Appeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming , a judgment in favor of defendants entered upon the decision of the court upon trial at Special Term. This was an action to restrain defendants, loan commissioners for Washington county, from foreclosing a mortgage executed to them by Martin B. Perkins and wife.

The complaint in this action alleged, in substance, that, in December, 1868, the firm of Davis, Fales & Co. sold and delivered a quantity of coal to the defendants, at prices agreed to be paid by them, amounting in all to $1,232, on account of which the sum of $629.59 had been paid at the time this action was commenced, leaving a balance then due of $602.41.

<p>Appeal from judgment of the General Term of the Superior Court of the city of New York, affirming a judgment in favor of plaintiff, entered upon a verdict.</p> <p>This action was brought to recover damages for an injury alleged to have been sustained by the plaintiff through the negligence of one of the defendant’s servants. '</p> <p>The steamship Columbia, belonging to the defendant, in September, 1869, arrivied at quarantine in the harbor of New York, with a cargo of tobacco in bales, and the barge Florence was engaged in lightering the steamship. This barge was not owned by the defendant, but was employed to take the cargo to the city of ¡New York.' The plaintiff was employed upon the barge, hired and paid by the master thereof. The custom of unloading tobacco, as proved upon the trial, is that four bales are hauled up from the hold of the steamer by her hands and thrown down one at a time to the deck of the lighter, where they are stored away by the hands upon the lighter; and it is the duty of the men throwing down the bales, to give some warning before letting them go; and this custom was observed in unloading this vessel in every instance but one, when the accident occurred. The deck of the lighter being almost full, the plaintiff was engaged in trying to save a bale from falling overboard, when another bale of a new set of four was thrown down without any warning, hitting the plaintiff and breaking his leg. The man who threw it down, was standing on the steamship and could have seen the plaintiff if he had looked, but he was engaged in conversation with some one behind him.</p> <p>Upon the trial the defendant asked to have the complaint dismissed and the plaintiff nonsuited, upon the ground that there was no proof that the man who threw the bale was a servant of the defendant; that the negligence of the plaintiff contributed to the accident; and also that the plaintiff and the man who caused the injury were fellow servants engaged in a common employment. The' motion was denied and defendant excepted. The jury rendered a verdict for plaintiff.</p> <p>Plaintiff and the person who caused the injury were fellow servants, engaged in a common employment, and, therefore, plaintiff cannot recover. (Boldt v. N. Y. C. R. R. Co., 18 N. Y., 433; Russell v. H. R. R. R. Co., 17 id., 136; S. & R. on Neg., 89; Linton v. Smith, 8 Gray [Mass.], 148; Elder v. Bemis, 2 Met. [Mass.], 604; Blake v. Ferris, 5 N. Y., 58; Murphy v. Caralli, 3 H. & C., 462.) Defendant was not liable, because the evidence does not show that the person doing the injury was in defendant’s employ. (Blackwell v. Wiswall, 24 Barb., 356; Norris v. Kohler, 41 N. Y., 42; Blake v. Ferris, 5 id., 58; S. & R. on Neg., 89; Linton v. Smith, 8 Gray [Mass.], 148; Elder v. Bemis, 2 Met.. [Mass.], 604.) Plaintiff having been guilty of contributory negligence, cannot recover. (Ernst v. H. R. R. R. Co., 35 N. Y., 27; Wilds v. H. R. R. R. Co., 24 id., 434; Beiseigel v. N. Y. C. R. R. Co., 33 Barb, 429; 40 N. Y., 9; Wilcox v. R., W. & C. R. R. Co., 39 id., 361, 365; approved in Havens v. Erie R. Co., 41 id., 299; Nicholson v. Erie R. Co., id., 525; Baxter v. T. & B. R. R. Co., id., 503, 505; Shear. on Neg., 39; Griffen v. N. Y. C. R. R. Co., 40 N. Y., 34; Delafield v. Union F. Co., 10 Bosw., 218.) The case should have been decided by the court. (Shear. on Neg., 11, note 3; Dascont v. B. & S. L. R. R. Co., 27 Barb., 228; Beiseigel v. N. Y. C. R. R. Co., 33 id., 432; Wilds v. H. R. R. R. R. Co., 24 N. Y., 433.)</p> <p>The principle that a master is not liable to one servant for the torts of another, in the same employment, does not apply to this case. (Young N. Y. C. R. R. Co., 30 Barb., 229; Smith v. N. Y. & H. R. R. Co., 19 N. Y., 132; Story on Agency [ed. 1863, 6th ed.], §§ 453-459; Abrahams v. Reynolds, 5 H. & N., 143.) The question of plaintiff’s contributory negligence was properly left to the jury, and their decision is conclusive. (Ernst v. H. R. R. R. Co., 35 N. Y., 9; Beiseigel v. N. Y. C. R. R. Co., 34 N. Y., 622.) .The presumption is that the person who caused the injury was in the defendant’s employ. (Norris v. Kohler, 41 N. Y., 42; Holbrook v. U. & S. R. R. Co., 12 id., 242; Johnson v. H. R. R. R. Co., 20 id., 65; Althorf v. Wolf, 22 id., 355.)</p>

(Reported below, 5 Lans., 516.) This was an action upon a bond, executed by defendants, given to discharge a canal boat from a warrant of attachment.

This action was brought to restrain defendant from publishing and circulating a circular or notice to the injury of plaintiffs’ business, and for damages caused by such circulation. The plaintiffs’ complaint alleged, in substance, that they were the owners of letters patent securing the exclusive right to manufacture, sell, etc., rubber heads to pencils, which invention was of great value, and were engaged in the manufacture of pencils with rubber heads.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, reversing a judgment in favor of defendant, entered upon the report of a referee, and granting a new trial. (Reported below, 59 Barb., 226.)</p> <p>This action was brought to recover the amount of a check hereinafter described.</p> <p>The referee found the following facts: That on the 2d day of March,1866, P. W. Gallaudet presented to the plaintiff, at the city of New York, a check drawn by one O. F. Burns, of which the following is a copy :</p> <p>“$3,000. “Albion, N. Y., March 1) 1866.</p> <p>“ Cashier of the Bank of Albion, pay to self or order three thousand dollars, and charge to the account of</p> <p>“ O. F. Burns.”</p> <p>Which said check was indorsed by said O. F. Burns, and by said P. W. Gallaudet, and had written on the face thereof the following words:</p> <p>“Accepted, “A. J. Chester, A. Cash.”</p> <p>That said Gallaudet requested the plaintiff to cash said check, and plaintiff thereupon, without actual notice of anything tending to impair its validity, beyond what appeared upon its face, and the circumstances attending the transfer thereof to the plaintiff, purchased the same from Gallaudet, and paid him therefor the full sum of $3,000. That the plaintiff thereupon caused said check to be forwarded to Albion for collection, and it was presented to the defendant’s bank for payment on the 3d day of March, 1866, when payment was demanded from the defendant and refused. That the acceptance written upon the face of said check, was signed by A. J. Chester, in the early part of February, 1866, in violation of his duty as assistant cashier of the defendant’s bank, which appointment he then held, the said O. F. Burns, the drawer of said check, not having then, or at any time afterward,, any funds in said bank to pay the same, and said acceptance was made without the knowledge or consent of the defendant, and without any authority from it to accept or certify the. same. That said A. J. Chester had been previously appointed by the defendant, assistant cashier, specially for the purpose of signing circulating notes of said bank, and continued to occupy the same position and under the same appointment, until after the 3d day of March, 1866. That during all the time aforesaid, Lorenzo Burrows was cashier of said bank, and a Mr. Brooks, teller. That the defendant had never authorized any of its officers to' certify checks, but had prohibited them from so doing. That it is not shown that said A. J. Chester had ever been vested with any of the general powers of cashier or teller of the defendant’s bank, or with any other power than the special authority above mentioned. That said check, accepted or certified as aforesaid, by said Chester, had, during the month of February, 1866, been put into circulation by said O. F. Burns, and had been purchased by said Gallandet prior to March, 1866.</p> <p>And, as matters of law, he found that such acceptance being of a post dated check wlien made in February, 1866, was void, because it was in violation of the provisions of the Laws of 1840, chapters 363, 364, as amended by chapter 251 of the Laws of 1850; also, for want of authority in said Chester to so-accept the same. That neither the aforesaid appointment of the said Chester as “assistant cashier,” nor his assumption of such employment in said bank, vested him with any general power to perform the duties of cashier or teller, or to accept or certify any checks upon said bank. That his acceptance or certification of said check was without authority from or ratification by the defendant, and it was never bound thereby, nor did it ever accept or certify said draft or check.</p> <p>He thereupon directed judgment for defendant, which was perfected accordingly.</p> <p>The check having been certified without authority and contrary to general usage, defendant is not liable. (Mussey v. Eagle Bk., 9 Metc., 306; F. and M. Bk. v. B. and D. Bk., 16 N. Y., 126; Barnes v. Ont. Bk., 19 id., 152; Meads v. Mer. Bk., 15 id., 143; Bk. of Genesee v. Patchin Bk., 13 id., 309; Irving Bk. v. Wetherarld, 36 id., 335; Claflin v. F. and C. Bk., 25 id., 293; Potter v. Mer. Bk., 28 id., 646; Mer. Bk. v. State Bk., 10 Wal., 644, 649; Clarke Bk. v. Bk. of Albion, 52 Barb., 592; Bullard v. Randall, 1 Gray, 605.)</p> <p>Plaintiff being a bona, fide purchaser, and there being nothing to put him upon inquiry he is entitled to recover. (Davis v. Macrady, 17 N. Y., 230; Hale v. Wilson, 16 Barb., 550.) Chester was an officer of the bank and plaintiff is not chargeable with notice of any limit or restriction of his duties by the bank. (Story on Agency, § 54; Sanford v. Handy, 23 Wend., 260; F. Bk. v. D. Bk., 16 N. Y., 130; Stoney v. Am. Ins. L. Co., 11 Paige, 635; Clarke Bk. v Bk. of Albion, 52 Barb., 597; Bk. of Genesee v. Patchin Bk., 3 Kern., 309, 312, 315; Catskill Bk. v. Stall, 15 Wend., 364; State of Ill. v. Delafield, 8 Paige, 527; 2 Hill, 159; Hern v. Nichols, 1 Salk., 289.) The certificate or acceptance of a check by a bank clearly amounts to a declaration that it is in funds to pay it. (Thurman v. Van Brunt, 19 Barb., 409; Kingman v. Houghtaling, 25 Wend., 423.) Defendant is therefore, estopped from proving that the drawer had not funds with which to pay the check. (Bk. of Geneva v. Patchin Bk., 3 Kern., 312, 316; Irving Bk. v. Wetherald, 36 N. Y., 335; N. Y. and N. H. R. R. Co. v. Schuyler, 34 id., 73; Holmes v. Williams, 10 Paige, 326; Done v. Shutt, 2 Den., 621; Truscutt v. Davis, 4 Barb., 495; Dezell v. Odell, 3 Hill, 215.)</p>

This action was brought to charge the defendant, as a stockholder in the Empire Moulding and Planing Mill Company, for machinery, etc., sold to it by the plaintiffs, after the recovery of a judgment therefor and the return of an execution, which had been issued thereon, unsatisfied.

This action was brought for the recovery of the possession of a house and lot of land, in the city of Brooklyn, of which plaintiff claimed to be the owner, and which he alleged was withheld from him by the defendant, who was in the wrongful possession thereof.

This action was against the vendor for specific performance of a contract to convey a lot of land, situate in Westchester county, and for damages for breach of the contract in case it could not be specifically performed. The defendant is the widow of Alexander Muir, who died intestate in 1858, seized of a lot of land in Westchester county. He left six children, three of whom were yet minors, • when the contract in question was made.

These are appeals from judgment of the General Term of the Supreme Court in the fourth judicial department, affirming in part and reversing in part a judgment entered upon the decision of the court at Special Term, and, also, an appeal from an order of said General Term affirming an order of Special Term denying a motion to vacate judgment.

This.action was brought to restrain the negotiation of certain bonds issued by. defendant Jenkins, as railroad commissioner for plaintiff, to pay for subscription for stock of the Albany and Susquehanna Railroad Company. The case appears twice in the Supreme Court reports; once on appeal from order dissolving a preliminary injunction (40 Barb., 534) and once on appeal from judgment in favor of defendants upon a former trial.

These are cross appeals by the parties, respectively, from different portions of a judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of plaintiff, entered upon the decision of the court, on trial without a jury.

AppEAL,from judgment of the General Term of the Supreme Court in the third judicial department, in favor of plaintiff, entered upon an order denying a motion for a new trial, and directing judgment upon a verdict. This action was brought by plaintiff to recover one-half the expense of building a party wall between the premises of the parties.

This action was brought to recover damages for an alleged wrongful act of defendant in satisfying a judgment after he had assigned it. The defendant, October 14, 1856, as assignee of the firm of O. Boyden & Co., of Newark, N. J., recovered a judgment in the Supreme Court of New York against M. Drury and S. Humphrey for $545.29.

This action was brought-by the plaintiff to recover compensation for loss of, and damage to cattle and horses belonging to him, sustained in consequence of the alleged negligence of the defendant’s servants. Plaintiff employed one Nicholas Cavanaugh to transport the cattle and horses, in his scow, across the St. Lawrence river, from Brockville, Canada, to Morristown, in this State.

This action was brought by the plaintiff, after demand and refusal, to recover the possession of two county bonds of $300 each. The bonds were issued September 1st, 1864, and due March 1st, 1866, payable to the order of one Jonathan S. Boll, a volunteer in the military service of the United States. Boll transferred them before maturity by an indorsement in blank and for a valuable consideration, to the plaintiff.

Term of the Supreme Court, in the first judicial department, affirming a judgment in favor of plaintiff, rendered upon a verdict. This action was brought upon a policy of fire insurance issued by defendant. The insurance was upon certain merchandise contained in a room of a building in the city of New York, used by plaintiff both as a salesroom and sleeping-room. The merchandise was destroyed by fire on the 31st day of January, 1868.

This action was brought upon a bond given by the defendant, Balde, as special guardian for plaintiff. Proceedings were instituted under the statute providing for the sale of the real estate of an infant (2' E. S., 174, 175, §§ 170-179); for the sale of the real estate belonging to plaintiff and others, infants, as heirs of Marks Bolts, deceased. The lands in question were situate in Herkimer county, and the proceedings were instituted in the Herkimer County Court.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of plaintiff entered on the decision of the court upon trial without a jury.</p> <p>The action was ejectment for a lot of land in Brooklyn. The plaintiff recovered the whole lot. The defendant claims on this appeal that he should have recovered ten-elevenths only. The lot in question is part of a farm which formerly belonged to Samuel Jackson, generally known as the hay-scale farm. In 1832 he conveyed it to John Jackson “for and during his natural life, and after his decease to his heirs and their assigns, forever.” In 1848, John Jackson conveyed his life estate to his eleven children, and in 1850 they executed to each other partition deeds, dated 13th February, 1849, of the greater portion of the farm. Those deeds recited at length the terms of the conveyance from Samuel •Jackson, the conveyance of the life estate and the names of the children of John Jackson, then surviving; that the said children had caused the premises to be subdivided into lots and a map thereof to be made, and that they had covenanted and agreed among themselves, and each for himself, and herself, to divide the said premises, according to the sub-divisions on said map, among the several persons entitled, and to make suitable and necessary conveyanees thereof so that each tenant in common should hold his or her share or parcel thereof in severalty, free, and discharged ■from all claim, liability, interest and estate of any other tenant in common in said premises or any part thereof^ and had made such partition pursuant to such agreement; and the deed to Richard Jackson from the - other children stated that they, in consideration of the premises and ten dollars to them in hand paid by him “ and for the purpose of carrying out and effecting the partition of said premises made by the several tenants in common as aforesaid so that each tenant in common may have and hold his or her share thereof, in severalty ” granted and conveyed certain specific lands, including the premises to the said Richard Jackson, his heirs and assigns, forever. The grantors then, as parties of the first part, for themselves and their heirs, separately and not jointly covenanted, granted, promised and agreed to and with the said Richard Jackson, as party of the second part, his heirs and assigns, in the following terms: “ That the said premises hereby conveyed are free and clear of and from all charges and incumbrances of any name or kind whatsoever, by them, or either of them, made or suffered; and that the said party of the second part, his heirs and assigns, shall and may from time to time, and at all times hereafter, well and peaceably have, hold, possess and enjoy the lands and premises herein-before assigned and conveyed free, clear and discharged of and from all estates, rights, titles, interests, charges and incumbrances whatsoever had, made, caused or suffered to be made of or by the said parties of the first part, or either of them, or any person claiming or to claim the same by, from, or under them or either of them, and without any let, suit, trouble, entry, disturbance or interruption of the said parties of the first part, or either of them, or of their heirs or assigns, or of any person or persons lawfully claiming or to claim the same by, from, or under them or any or either of them.” Richard Jackson executed a like deed to each of his brothers and sisters then living, of the several parcels of land that had been allotted to them, in severalty.</p> <p>After that partition and on the 21st day of November, 1855, William Beard recovered a judgment in the Supreme Court for $840.75, against the said Bichard Jackson, which was docketed in Kings county, on the 25th day of July, 1856, and on the 9th day of September, 1856, the sheriff of that county, under and by virtue of an execution issued to him on that judgment, sold to Daniel P. Barnard all the right, title and interest of the said Bichard Jackson, of which he was seized or possessed on the said 25th day of July, 1856, or at any time thereafter, up to the day of the sale in and to fifty-two lots of land, formerly part of those included in the deed, to the said Bichard Jackson above referred to, including the dot in question; and he, on the 4th day of December, 1859, executed and delivered to the said Barnard a deed for all of the said lots so sold to him. .Barnard, on the 27th day of August, 1862, executed and delivered to the plaintiff, Amanda M. House, a déed of bargain and sale of the lot in question, and of three other lots purchased by him at the said sheriff’s sale.</p> <p>Subsequent to the execution of the said partition deed to Bichard Jackson, Fanny Jackson, his sister, and one of the grantors therein, was married to Parker Baldwin. On the 3d day of June, 1859, while her father was still living, she died, leaving one child, Fanning Baldwin, her only heir at law, her surviving. He was born February 21,1859, and is still living.</p> <p>John Jackson died on the 5th day .of March, 1861, leaving his children, who were parties to the said partition deed (except the said Fanny Baldwin), and his grandson, the said Fanning Baldwin, his only heirs at law, him surviving. After his death, and on the 15th day of January, 1862, Stephen C. Jackson and others, commenced an action against Coe H. Jackson and others (the parties thereto being the heirs of the said John Jackson, and those only), for a partition of the said hay-scale farm, so conveyed to him by the deed from Samuel Jackson, as above stated, and on the 7th day of September, 1863, judgment was entered therein by which certain lots (not including that for which this action is brought) were set off to the said Fanning Baldwin in severalty, and the lot in question was set off to Parmenus Jackson, one of the grantors in the said deed to Richard Jackson, in severalty, and he subsequently and before the commencement of this action conveyed the same to Patrick McCormick, the defendant herein, who, since that time, occupied it and claimed that the said sheriff’s deed conveyed an estate in said land only for the life of John Jackson.</p> <p>The judge, who tried the issues, found on the facts above set forth, the following as his conclusions of law :</p> <p>First. That the deed from the sheriff of Kings county conveyed to Barnard the right, title and interest of Richard Jackson in the remainder in fee, limited to the heirs of John Jackson, in all the lots mentioned in said deed.</p> <p>Second. That as to one-eleventh thereof, such remainder was divested by the death of Fanny Baldwin before her father.</p> <p>Thi/rd. That when Parmenus Jackson subsequently acquired title as aforesaid to such one-eleventh, it became vested in the plaintiff by virtue of the covenants in the partition deed annexed to his findings, and by the sheriff’s deed also annexed, and that Parmenus Jackson and his grantee are estopped to deny the plaintiff’s title to such one-eleventh.</p> <p>Fourth. That the plaintiff is entitled to judgment against the defendant for the whole of the lot mentioned in the complaint.</p> <p>Exceptions were duly taken to the first, third and fourth of said conclusions.</p> <p>A sheriff can only sell that of which he can take and deliver possession, and which can be seen and determined. (Jackson v. Town, 4 Cow., 599, 603.) He cannot sell choses in action. (Denton v. Livingston, 2 J. R., 96; Bogert v. Perry, 17 id., 350; Scott v. Scholey, 8 East, 467.) Flor any equitable estate. (Brewster v. Striker, 2 N. Y., 19.) Covenants are confined to the very title or interest which the deed purports to convey, and never estop the grantor as to any other title or interest subsequently acquired. (Miller v. Ewing, 6 Cush., 34, 40; Doane v. Willcutt, 5 Gray, 328; Jackson v. Stevens, 16 J. R., 110; Pelletreau v. Jackson, 11 Wend., 110, 118, and cases cited; Brewster v. Striker, 2 N. Y., 19; Sinclair v. Jackson, 8 Cow., 543, 586; Jackson v. Hoffman, 9 id., 271; Wheelock v. Henshaw, 19 Pick., 341; Hermitage v. Tompkins, 1 Ld. Raym., 729.) If any interest, however small, passes by a deed, it creates no estoppel. (4 Kent’s Com., 98; 4 Cruise Dig., 270, § 58; Co. Litt., 476; Jackson v. Hoffman, 9 Cow., 271; Lewis v. Baird, 3 McL., 56, 78; 2 Preston on Abstracts, 212, 216; 3 Washb. R. E. [3d ed.], 105, 106; Doe v. Earl of Scarborough, 2 Ad. & El., 2, 9,10, 12, 38; Jackson v. Hubble, 1 Cow., 613; Jackson v. Waldron, 13 Wend., 178, 207; Tanner v. Livingston, 12 id., 83; Doe v. Seaton, 2 C., M. & R., 728; Hill v. Saunders, 2 Bing., 112; affirmed, 4 B. & C., 529.)</p> <p>The title adjudged to Parmenus Jackson in the partition action inures to the benefit of any one claiming the estate by or through him. (Wood v. Seely, 32 N. Y., 116.) The purchasers under the judgment sale took the full benefit and all the right of Bichard Jackson to the covenant of warranty, and all equities and estoppels running with the land. (Rickert v. Snyder, 9 Wend., 421; Allen v. Culver, 3 Den., 295; Sweet v. Green, 1 Paige, 473; Kellogg v. Wood, 4 id., 578.)</p>

This action was brought by plaintiff to recover a dower right in surplus moneys arising upon foreclosure sale. In July, 1854, Nicholas Elmendorf, husband of plaintiff, owned several parcels of land situate in the county of Ulster, upon which there were existing three several mortgages given for purchase-money. There were, also, some judgments outstanding against him in favor of defendant Russell.

<p>Where a stockholder of a corporation, organized under the act of 1853, providing for the incorporation of companies to navigate the ocean by steamboats (chap. 338, Laws of 1853), has been held liable under its provisions (§ 6) for a debt of the corporation, because of the failure of the president and directors to make and record a certificate that the capital stock has been paid in as required by the act (§ 7), he can maintain an action against the other stockholders for contribution.</p> <p>It is no defence to such an action that the corporation was not legally organized; as to those who participated as stockholders in its acts of user as a corporation de facto, and who appeared as shareholders upon its books.</p>

This action was brought 'by plaintiff, as receiver of the Farmers and Citizens’ Rational Bank of Brooklyn, upon a promissory note. In May, 1865, the Farmers and Citizens’ Rational Bank of Brooklyn was duly organized under the act of Congress, entitled, “ An act to provide a national currency, secured by a pledge of United States bonds, to provide for the circulation and redemption thereof,” passed June 3d, 1864, and acts amendatory thereof.

The nature of the action and the facts material to the points discussed sufficiently appear in the opinion. Plaintiffs have a cause of action against defendants.

The action was brought June 1st, 1869, to recover damages for the alleged deceit of the defendant, by which the plaintiff was induced to purchase certain lands of one McCarty and to pay him therefor the sum of $1,701.56. The defence was that the cause of action had not accrued within six years before the action was commenced.

<p>The rule that where a specific sum of money is, by the agreement of the parties, made payable at a specified time and place, as against the original debtor, no demand at the time or place before the commencement of an action is necessary, is not confined to bills, notes and bonds, ■but includes all agreements for the payment of money.</p> <p>The only benefit the debtor derives from these specifications in the agreement is that if ready to pay at the time and place, and if he has kept ready, by paying the money into court and setting these facts up in his answer', he shields himself from liability for interest and costs.</p>

The facts material to the decision by this court are sufficiently stated in the -opinion. The mortgage and leases mortgaged can he read upon the hearing of the appeal.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, denying motion for a new trial and affirming an order of Special Term directing judgment in favor of plaintiff upon a verdict.</p> <p>The nature of the action and the facts are stated in the opinion.</p> <p>The jury rendered a verdict for plaintiff, whereupon the court ordered the case to stand for the consideration of the court upon the exceptions and questions of law arising therein. Subsequently, on motion for judgment on the part of the plaintiff, it was granted and judgment directed for the plaintiff on the verdict. An order was then entered on stipulation, giving defendants time to make a case and exceptions to be heard at General Term.</p> <p>The contract of sale was void under the statute of frauds, and was not saved by the payment made subsequently. (2 R. S., 136, § 3, sub. 3; Allen v. Aguirre, 5 N. Y. L. O., 380; Sprague v. Blake, 20 Wend., 61; Brabin v. Hyde, 32 N. Y., 519; 45 id., 148, 149.) Eo title passed, and, therefore, no action for the whole price can be maintained independently of the statute of frauds. (Pierson v. Hoag, 47 Barb., 243; Baker v. Bourcicalt, 1 Daly, 23; Russell v. Nicoll, 3 Wend., 112; Ward v. Shaw, 9 id., 404; Outwater v. Dodge, 7 Cow., 85; Evans v. Harris, 29 Barb., 416.) The measure of damages 'is only the difference between the contract-price and the value at the time of breach, and in the absence of any evidence of difference the damages are nominal. (Story on Sales, § 438, and cases cited; Billings v. Vanderbeck, 23 Barb., 546; Dustan v. McAndrew, 10 Bosw., 130; Wilson v. Holden, 16 Abb. Pr., 133; Allen v. Jarvis, 20 Conn., 38; Chamberlain v. Farr, 28 Vt., 265.) A tender of the goods was an absolutely indispensable preliminary to an action for not receiving by the seller. (Hagan v. King, 38 Barb., 200.)</p> <p>The rule of damages was correct. (Dunstan v. McAndrews, 44 N. Y., 73, 78; 10 Bosw., 130.) The questions as to the fall in the price of hops were proper. (Lefler v. Field, 52 N. Y., 621, 622.) There was no mistrial. (Code, § 265; 2 Dunlap’s Pr., 655, 667; Barnes v. Perrine, 2 Kern., 18; Manning v. Monaghan, 23 N. Y., 541, 542.) Defendants were not prejudiced. (City Bk. of Bklyn. v. McChesney, 20 N. Y., 243.)</p>

This action was to recover damages for injuries sustained by the plaintiff by a collision upon defendant’s road. The material facts are as follows: In April, 1869, the plaintiff, with two other young men, was walking along the track of defendant’s road, toward New York; a coal train, came along with a large number of coal cars; there was a caboose at the end of the train, with accommodations for the employes of the road and their tools and implements.

This action was for trespass in entering upon the plaintiff’s land, removing fences, and for disturbing him in the enjoyment of his land.

(Chap. 513.) (Reported below, 11 Abb. Pr. [N. S.], 326.) The facts, so far as they are material to the decision of the appeal, sufficiently appear in the opinion. Demarest not being the owner of the claim and lien when he commenced the suit, had no right of action.

This action was brought to recover the balance of a deposit made by plaintiff with defendant. On the 21st day of August, 1869, the plaintiff deposited with defendant, $100. At the request of the officer of defendant she wrote her name in a book kept for the purpose at the bank, and wrote the same in German.

<p>A'cause of action based on fraud, in the execution of a written contract, is distinct from that founded on a mistake merely, and it is not competent upon the trial to make a substitution of one for the other.</p> <p>Where, therefore, defendant set up as a counter-claim a fraudulent omission and concealment, on the part of plaintiff, of items supposed by defendant to have been included in a settlement between the parties, which formed the basis of the agreement upon which the action was brought, held, that it devolved upon defendant to establish the fraud, and a refusal of the court to submit to the jury the question whether the omission was by mistake was proper.</p>

This action was brought to recover for services alleged to have been rendered by plaintiffs, as carpenters and builders, and for building materials furnished and delivered by them to the defendant, to the amount and value of $3,423.49, which, as they alleged, the defendant promised to pay, and had paid $2,800 ; leaving unpaid and due $623.49. Before the defendant answered the plaintiffs’ complaint, he demanded and received from them a bill of particulars of their demand.

This was a proceeding to enforce a mechanic’s lien against premises known as No. 474 Third avenue, in the city of New York. The original complaint, served under an order of the court made May 4th, 1863, alleged that the plaintiff had entered into an agreement with the defendant O’Brien, to supply a quantity of brick and other .building materials, and to perform work and labor to the value of $868.45, which sum O’Brien promised to pay.

The action was brought by the plaintiff, who was the owner of certain real estate in the city of Auburn, to set aside a lease thereof, executed in February, 1864, by the defendant Lyman L. Wilkinson, as her agent, acting under a power of attorney, to defendant George B. Wilkinson ; and, also, for an account and recovery of the profits derived from increased rents on relettings of the premises.

This was a consolidated action embracing three suits brought to recover installments alleged to be due upon an order accepted by defendant.

<p>A subscription to the capital stock of a corporation organized under the general railroad act (chap. 140, Laws of 1850) made after the formation of the corporation, is invalid where ten per cent of the amount subscribed has not been paid (§4); and'in an action by the corporation against a subscriber to recover the amount subscribed, the latter is not estopped from denying such payment because of a statement in the subscription paper that ten per cent has been paid. A statute cannot be evaded by estoppel.</p> <p>It seems such a subscription cannot be validated by a subsequent statute, as a statute thus attempting to make a binding contract between parties, where none previously existed, would be violative of the constitutional inhibition against depriving a- person of property without due process of law. (State Con., art. 1, § 6.)</p> <p>A legislative intent to violate the Constitution will not be assumed; nor will a law be so construed as to give it a.retroaetive effect where it is capable of any other construction. If all its language can be satisfied by giving it prospective operation only, that construction will be given it.</p> <p>Accordingly, held, that the provision of the act of 1869 to facilitate the construction of the R. Y. and O. M. R. R., etc. (§ 2, chap. 84, Laws of 1869), providing that no subscription to the stock of the company shall be invalidated or affected by reason of the non-payment of ten per cent thereof at the time of subscription, did not apply to prior subscriptions, but operated prospectively only.</p>

This action was brought upon an award. The submission was in writing under seal.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming a judgment in favor of plaintiff entered upon a verdict.</p> <p>This was an action to recover damages for injuries received by the plaintiff, a passenger upon defendant’s road, in April, 1868, at what is called the Carr’s Rock disaster.</p> <p>The plaintiff recovered $20,000. The facts appear sufficiently in the opinion.</p> <p>The court properly allowed plaintiff to state what advice was given him by one of his physicians as to exercise. (McAleer v. McMurray, 58 Penn., 126.)</p>

Appeal by defendants from a judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment in favor of the plaintiff entered upon a verdict.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming a judgment in favor of plaintiff entered upon a verdict. (Reported below, 5 Lans., 293.)</p> <p>This action was brought against defendant to recover the value of certain horses and mules killed by the falling of a bridge over the Erie canal, in Schenectady. The defendant had entered into a contract with the people of the State to keep superintendent section number two in repair; the section included the bridge in question. The contract contained the clause required by chapter 836, Laws of 1866, requiring the contractor to pay all damages arising to the State “ or to any individual ” by reason of the negligence, default or misconduct of such contractor.</p> <p>On the 26th October, 1869, the plaintiff was passing over the bridge with a number of horses and mules, when the bridge gave way precipitating a number into the canal. Three of the horses and two mules were killed. Plaintiff, on the trial, gave evidence tending to show that the timbers of the bridge were rotten. Defendant gave evidence that the canal superintendent directed the defendant to make repairs, and that the repairs were made according to the directions thus given. Tedder, the superintendent, as a witness, was asked this question: “ Did you order all the repairs to be done that, in your judgment, you deemed necessary and proper ? ” This was objected to and excluded.</p> <p>Af the close of the evidence, defendant’s counsel moved for a nonsuit upon the ground, among others, that defendant was not in default until directed to repair by the canal commissioner ; that the bridge was not covered by the contract; that it appeared that the canal board had put the section in charge of a superintendent who, a short time prior to the accident, examined the bridge and gave directions what repairs and alterations to make, and that defendant made the repairs as directed; and that it was incumbent upon plaintiff to show notice to defendant that the bridge was out of repair.</p> <p>The court denied the motion and defendant’s counsel excepted.</p> <p>In a case where facts are clearly proved or conceded the question of negligence or carelessness is matter of law. (Manger v. T. R. R. Co., 4 N. Y., 350; Rathburn v. Payne, 19 Wend., 399; Bush v. Bronson, 1 Cow., 88; Hance v. C. and S. R. R. Co., 26 N. Y., 428; Gordon v. Erie R. Co., 45 id., 660; Davis v. N. Y. C. R. R. Co., 47 id., 400; Sexton v. Zett, 44 id., 430.)</p> <p>A contractor with the State to put and keep in repair a portion of the canals, with its bridges, is liable to one who has sustained damage by the neglect of the contractor to perform the duties assumed by his contract. (Robinson v. Chamberlain, 34 N. Y., 389; Fulton P. Ins. Co. v. Baldwin, 37 id., 648; Conroy v. Gale, 5 Lans., 344; affirmed, 47 N. Y., 665.) The undertaking and duty of defendant, in relation to repairs, were not dependent upon the requirements or directions of the canal superintendent. (Shepherd v. Lincoln, 17 Wend., 250; Adsit v. Brady, 4 Hill, 630; Conroy v. Gale, 5 Lans., 344; Laws 1867, p. 1542, chap. 577, § 3.) The motion for a non-suit, on the ground of plaintiff’s contributory negligence was properly denied. (Davenport v. Ruckman, 37 N. Y., 568.) Defendant’s liability did not depend upon notice of the defects. (McCarthy v. City of Syracuse, 41 N. Y., 194.)</p>

This action was brought upon a policy of insurance issued by defendant to plaintiff upon a barn and property therein, situated in Onondaga county. The property was destroyed by fire in July, 1868. One of the conditions annexed to the policy of insurance was that the insured should, in case of loss, forthwith give notice to the secretary of the company, and within ten days after such loss deliver in a particular account of such loss, signed and verified.

This was an action of ejectment to recover possession of a strip of land, five feet wide and one hundred feet deep, on Sixth street, in the city of Buffalo. .

This action, was brought for the recovery of money paid by plaintiff, on account of a subscription by C. Sheehan, for and toward the… Held: at which a resolution was passed, as follows: “ Resolved, That the capital stock of this company be reduced to the original capital of $1,000,000, and that the trustees of the company he and hereby are authorized to adjust with the owners or holders of the 2,000 shares .heretofore increased or intended to be added to the capital…

In the year 1867, proceedings were regularly instituted to lay out a highway in the town of Greenburgh, Westchester county, and the commissioners of highways laid out the same. The relators, Amelia Cook and Sophia Cook, appealed from the determination of the commissioners to the county judge. The county judge having been counsel for the applicant for the road, one of the justices of the sessions appointed three referees to hear the appeal.

This action was brought to recover the value of a trunk and contents, the baggage of plaintiff while a passenger upon defendant’s road, alleged to have been lost through defendant’s negligence. In July, 1866, the plaintiff was a passenger on one of the defendant’s cars from Rochester to Palmyra, having purchased a passage ticket and procured her baggage to be checked at Rochester.

This action was for the specific performance of a contract for the sale, by the defendant to the plaintiff, of certain premises in the city of Hew York. The court found, as conclusions of law, that the contract was so objectionable in its terms and in the circumstances under which it was procured, that a court of equity would not enforce it, and directed the complaint to be dismissed.

<p>The owner of a building adjoining a street or highway is under a legal obligation to take reasonable care that it is kept in proper condition, so that it shall not fall into the street or highway and injure persons lawfully there. °</p> <p>From the happening of such an accident, in the absence of explanatory circumstances, negligence will be presumed, and the burden is upon the owner of showing the use of ordinary care.</p>

This action was brought for the alleged conversion of a (seven-thirty) note of the United States, issued under the act of Congress of March 3, 1865 (13 U. S. Stat. at Large, 468), which, when issued, was substantially in this form : “ $1,000. “ Three years alter date the United States promise to pay to the order of one thousand dollars, with interest at 7 3-10 per cent, payable semi-annually in lawful money.” (Signed by the proper officers of the treasury and with the…

<p>In the provision of the Cocle (§ 186) allowing bail to be given to discharge . a defendant from arrest at any time before execution, an execution against the person is intended. Bail may be given after execution is issued against property,</p> <p>If, however, the taking of an undertaking in such'case is irregular, it is an irregularity of which the defendant and his sureties cannot take advantage in an action on the undertaking.</p> <p>It seems, that the provisions of the Revised Statutes (2 R. S., 556, §§ 36,37) providing that when, at the time of the rendition of judgment, the defendant is under arrest, the plaintiff shall charge him in execution, within three months after the last day of the term next following that • at which the judgment was rendered, and, in case of negl.ect, that defendant may be discharged on supersedeas, were intended only for the relief of a defendant in actual custody; and if in force, under the Code, do not apply where he "has been discharged, upon giving bail; the defendant also, who has not been discharged from custody by a supersedeas, remains • liable to arrest on- execution, after the expiration of the time specified.</p> <p>These provisions are not in force under the Code, and prior to 1870 there was no limitation of time during which an execution against the person of a defendant in custody might he issued.</p> <p>It seems, that under the amendment to section 288, made in 1870, providing for the discharge, upon his motion, of a defendant in custody, if execution against his person be not issued within three months after entry of judgment, the execution can be superseded only by order of the court upon motion.</p>

(Reported below, 4 Lans., 444.) This was an action in the nature of a creditor’s bill brought by plaintiff as judgment creditor of the New Jersey Steam Navigation Company after the return of an execution, nulla bona, to reach certain assets of the said company alleged to he in the hands of defendant, Drew.

rendered by the police justice of the city of Brooklyn. This action was brought to recover a penalty fixed for the violation of an ordinance of the common council of said city. The ordinance is as follows : Section 1.

This action was brought to recover $1,100, which plaintiff claimed was credited to the defendant upon its books by mistake and drawn out by him upon his checks. There was no controversy upon the trial about the mistake, but the only question of fact litigated was whether the^defendant had repaid to the bank the eleven hundred dollars. The referee found that he had made the repayment and reported in his favor.

This action was brought by plaintiff as lessor, against the defendants as assignees of a lease of premises known as No. 645, and the three upper floors of No. 647 Broadway in the city of New York, to recover damages for alleged injuries thereto. The lease was executed by the plaintiff to one Eugene Mendes for ten years from May 1, 1866. The defendants became assignees in the same year.

This action was brought to recover damages for a refusal of the defendant to transfer, on its books, fifty shares of its stock, of which the plaintiff held the certificates. The facts disclosed were, that one William T. Riggs, on the 16th day of June, 1859, held two certificates of the stock of the defendant, a foreign corporation, of twenty-five shares each. These were a part of a larger amount of stock standing in his name on the same day, viz., 546 shares.

This action was brought for an alleged breach of contract. Held: that the verbal agreements modifying the original contract were void under the statute of frauds ; also (Eabl and Johnson, CC., dissenting), that the delivery and acceptance, after the first modification, must be assumed to have been under the original contract, and so did not take the verbal contract out of the operation of the…

This was an action for partition ; the only question was as to the right of dower of the wife, co-defendant. The facts are substantially the same as in House v. Jackson (50 N. Y., 161), save that there the claimant of the dower right was a widow. The defendants intermarried before the rendition of the judgment under which the plaintiff claimed title. The judgment below gave the wife an inchoate dower right in one-eleventh of the land in suit.

This was an action to recover possession of personal property. The property claimed was taken from defendant and delivered to plaintiff. Held: that while upon the specific facts, as found by the referee, the judgment should have been for plaintiff, yet, that in support of the judgment it might be assumed that the referee found the facts said evidence tended to prove; and as they were not inconsistent with the facts found they might be included in the general finding, that…