Volume 57 — Sickels

The nature of the action and the material facts are stated in the opinion. Plaintiff under the agreement with defendant became a simple creditor at large; the defendants debtor with the right to use the moneys for his own use and benefit; and the moneys were a loan. (Butler v. Sprague, 66 N. Y. 392; Jordan v. Nat. Shoe & Leather Bk., 74 id. 467, 473; Ætna Nat. Bk. v. Fourth Nat.

This action was for the foreclosure of a bond and mortgage, executed by one Coggeshall to plaintiff on the 15th of July, 1882. The bond purports to have been given as security for the payment of $27,000 with interest on demand, but it appeared before the trial court that the obligor was not in fact indebted to the plaintiff and received no money from him at the time of its execution.

(Reported below, 32 Hun, 454.) • This action was brought to recover a balance alleged to be due plaintiff for his fees as city treasurer of the city of Yonkers. The material facts are stated in the opinion. The plaintiff was a public officer; his compensation was fixed b.y statute and attached to his office, and having faithfully performed his duties he is entitled to the statutory allowances during the period of his services.

affirmed a judgment in favor of plaintiff, entered upon a verdict. This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence. Plaintiff was a passenger on one of defendant’s street cars; the track of its road is crossed by the track of a steam railroad. In passing the crossing the car was struck by an engine passing on the other road, and plaintiff was injured.. The other material facts are stated in the opinion.

This action was brought to recover damages for alleged fraudulent representations on the part of defendant, by which plaintiff was induced to settle certain actions and proceedings and accept, among other things, defendant’s note at twelve months in satisfaction and to release all claims. This action not being necessary to protect or enforce any right of the plaintiff cannot be maintained lex nihil frustra agit.

The sale was made under and pursuant to certain terms and conditions of sale, among which were the following: “ The department will make, either prior to the commencement of the term of lease in each case, or as soon thereafter as practicable, such repairs to any of the above-named premises, in the judgment of the commissioners needing them, as they may consider necessary to place the premises in suitable condition for service during the terms for which leases are to be sold…

The nature of the action and the material facts are stated in the opinion. The discretion of the judge sitting at the trial of a cause, with reference to the granting or refusing of a motion to postpone, is not an uncontrolled or uncontrollable one ; but that power must be exercised according to the established rules and principles of law. His decision, if erroneous, is a cause for reversing the judgment.

This action was brought to recover damages for alleged unlawful acts in entering upon a highway in front of plaintiff’s premises and erecting an embankment thereon. Plaintiff owned the fee to the .center of the highway.