Volume 58 — New York Reports

This action was brought against William M. Tweed, Elbert A. Woodward, James H. Ingersoll and Andrew J. Garvey, to recover moneys alleged… Held: at which a paper was drawn up and subscribed by the three officers mentioned, in the following words : “ Comptroller’s Ofeioe, 1 “ May 5, 1870. j “ The undersigned met as a commission under and by virtue of section 4 of chapter 382 of the Laws of 1870. “ On motion of the mayor, it is resolved that the county auditor collect from the…

This action was. brought to recover damages for the death of plaintiff’s intestate, Charles H. Sprong, alleged to have been caused by negligence of defendant. Sprong was in the employ of defendant as head brakeman. On the morning of the 3d of February, 1870, before five o’clock, he left East Albany as head brakeman of a freight train of eleven or twelve cars, drawn by the engine Maine. With him on the train were the engineer, conductor and another brakeman.

This was an action to recover damages for the negligent killing of the plaintiff’s intestate, Charles F. Metz, while he was a passenger on the Buffalo, Corry and Pittsburgh railroad, built and formerly operated by defendant, at or near Prospect station, on the 21th day of December, 1872.. The defendant admitted that the death of deceased occurred in consequence of the gross negligence of thosé operating the road.

<p>Where a judgment debtor pending an appeal by him is declared a bankrupt, and the judgment is thereafter affirmed by the General Term, with costs, he has a sufficient interest in the judgment of affirmance to sustain an appeal therefrom by him to this court.</p> <p>It seems, that, prior to his discharge, a bankrupt .lias a sufficient interest in preventing the establishment of a claim against him to sustain an appeal by him from a judgment thereon, where his assignee does not seek to intervene and be substituted.</p>

(Reported below, 2 N.Y. S. O. [T. & 0.],641.) This action was upon a promissory note made by defendant, bearing date June 20, 1864, for $5,000 payable to the order of Joseph H. Sanford and plaintiff.

This was a motion for reargument. The case is reported in 55 Hew York, 456. The facts are briefly these: On the 21st August, 1863, one E. P. Jeffries contracted, through his broker, to sell defendants, who were merchants in Hew York, 1,800 bags of linseed. Defendants upon the same day, pursuant to the contract, mailed to Jeffries their notes for the amount of the purchase, which were received by him and immediately pledged as collateral for a loan.

<p>A married woman is not liable for property obtained upon her ,credit and contract, but delivered to her husband and for his use, and which is used by him and not for the benefit of her estate, where the intent to charge her separate estate is not expressed in the contract. (Grover, Sapallo and Johnson, JJ., dissenting.)</p>

This was an action of trespass. In 1869 defendants were trustees of school district number 9, in the town of Hurley, Ulster county; as such trustees they levied a tax for school purposes. Plaintiff was a resident and tax-payer in the district. In making up the assessment roll the valuation of plaintiff’s property was increased from the valuation thereof upon the town assessment roll for 1869.

(Reported below, 1 T. & C., 13.) This action was brought upon a promissory note for $700, given by the firm of F. L. Sheldon & Co., of which firm defendants were the members, upon effecting an insurance with the .¿Etna Insurance Company of Utica. The policy was issued November 29, 1851, and ran for one year. The following facts were substantially found by the referee: That said company was incorporated in 1851, under the act of 1849.

This action was brought to recover penalties for violations of the pilotage law. Defendants before answering made an offer of judgment, under section 385 of the Code, of $100 and interest, with costs. The offer was refused. Plaintiffs recovered at Circuit forty-six penalties, i. e., $4,600. The judgment was affirmed at General Term.

Appeal by Matthew T. Brennan, sheriff of the city and county of Yew York, from an order of the General Term of the Yew York Common Pleas, affirming an order of Special Term taxing sheriff’s fees and disbursements upon execution. This action was commenced in the Marine Court of the city of New York.

a referee. This action was brought against defendant as former supervisor of the town of Guilford, Chenango county, to recover .a balance of war funds raised on the credit of the town alleged to be in his hand. Defendant was supervisor of said town from February, 1863 to February, 1865.

This was a motion for a reargument. The action was brought upon an alleged promise by defendant to pay $2,000 toward the altering and repairing of certain premises owned by him, when said work was completed.

. Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment in favor of plaintiff, entered upon the report of a referee. This action was brought to recover damages for injuries sustained by plaintiff, occasioned by the explosion of the boiler upon defendant’s steam ferry-boat, the Westfield. On Sunday, July 30, 1871, plaintiff went on board said ferry-boat, which plied between the city of Hew York and Staten Island.

defendant, entered upon an order denying motion for a new trial and directing judgment on a verdict. This was an action to recover possession of a barge named the “ Franklin.” Plaintiff claimed title under a sale by a United States collector of internal revenue. He gave in evidence a bill of sale to him, dated August 3, 1868, executed by Alexander Spaulding, collector of internal revenue.

(Sub. 5, § 28, chap. 140, Laws of 1850.)- The relators, as commissioners of highways of the town of Fishkill, Dutchess county, applied for and obtained an alternative writ of mandamus which alleged, in substance, that defendant constructed its track over and along a public highway between Fishkill and Fishkill Landing, in said town; four sections thus taken and used of said highway were particularly set forth, and it was alleged that they had not been restored, ■ but that…

This was an action to redeem certain premises situate in the city of New York. On September 3, 1857, the Ocean Insurance Company was the owner of three promissory notes, with bonds and mortgages given to secure the same, which were executed by one Cook to the plaintiff and by him assigned to said company; the latter assigned them to the defendants as collateral security for a debt due to them by said company.

This action was brought to recover $100, balance of $250 loaned September 1, 1869, by plaintiff to the Ventilating Rubber Shoe Company, a corporation organized under the manufacturing act of 1848 and amendments, on the ground that the trustees of that company, of which defendant Lefferts was alleged to be one, had not made or published, within twenty days after the 1st January, 1870, the report of its condition as required by that act.

(Reported below, 1 IST. Y. S. C. [T. & C.j, 42.) This was an- action for trespass for cutting and carrying away wood and timber from plaintiff’s lands. In 1851 the father of the plaintiff died intestate, leaving a large real estate. He left surviving him a widow and the plaintiff, who was his only heir, then about one year old. The defendant was the grandfather of the plaintiff, and he took out letters of administration on the estate of plaintiff’s, father.

(Reported below, 1 Iff. Y. S. C. [T. & C.], 23.) This action was brought to compel the delivery by defendant Benedict of a deed of certain premises situate in Rochester, alleged to have been placed in his hands in escrow, and to compel defendant Miller to surrender up possession of the premises.

<p>The nature of the action and of the questions presented and the necessary facts are stated in the opinion.</p> <p>Plaintiffs’ claim is barred by the statute of limitations. (Roberts v. Sykes, 30 Barb., 178; 1 Keyes, 141, 159; Story Eq. Jur., § 1521 a; Schroeppell v. Cornney, 2 Seld., 107; Bloodwood v. Brown, 4 id., 362; Borst v. Corey, 15 N. Y., 505; Bruce v. Tilson, 25 id., 194.) There was no trust expressed in the deed to Squire White, nor any recognized by the statute in the articles, nor any corporation as required by law. (Ring v. McCoud, 10 N. Y., 268; 3 Seld., 564; 1 R. S., 729, §§ 60, 62; 8 Paige, 222; 10 id., 563; 8 Pet., 83, 88; 2 Comst., 586; 3 id., 525; Boynton v. Hoyt, 1 Den., 57; 9 Barb., 519; Downey v. Marshall, 23 N. Y., 368, 379; 21 id., 574; 3 Sandf. Ch., 504; 30 N. Y., 188, 194; 27 Barb., 407,)</p> <p>There was a full, definite and complete trust acknowledged by Squire White. (Story Eq. Jur., § 964; Seymour v. Freer, 8 Wall., 213; Hill on Trusts, [marg. pages] 55-64; Last ed., 86-96; 2 R. S., 135, § 7; Wright v. Doug, 3 Seld., 564; Gomez v. Tradesmen Bk., 4 Sandf., 102; Steere v. Steere, 5 J. Ch., 1; Foster v. Hall, 3 Ves., 696; F. R. Whaling Co. v. Borden, 10 Cush., 472.) The action is not barred by the statute of limitations. (Hill on Trustees, [marg. page] 264; Seymour v. Freer, 8 Wall., 218.)</p>

(Reported . below, 2 N. Y. S. C. R. [T. & G], 657.) . The usual judgment of foreclosure and sale was entered .with directions for judgment against defendant for deficiency. The report of the referee showed a deficiency, but no judgment for the amount thereof was entered. The appeal should be dismissed. (Code, § 11, subs. 3, 4.) The order at Special Term was obtained upon due notice and after hearing counsel for defendant, and is in proper form.

This action was brought to recover damages for the death of plaintiff’s intestate alleged to have been occasioned by the negligence of defendant. The deceased was a bralceman in the employ of defendant. The train on which he was employed (a freight train) left East Albany about four and a half o’clock in the morning the 4th day of December, 1871. It was before light and a foggy, misty and wet morning.

This was an action to restrain defendant from the use of words claimed by plaintiffs as a trade mark.

This was an action of ejectment. The complaint was divided into five subdivisions, in substance, as follows: 1. Alleging that one Alfred Hubbell, in his lifetime, was lawfully seized in fee and possessed of the premises therein described; and being so seized and possessed thereof he died in 1853, intestate, leaving Mary Hubbell, his widow, who ■died in 1855, intestate, and Alfred M., Mathew and Albon H. Hubbell, his only heirs at law, then minors.

(Reported below, 1 H. Y. S. C. R. [T. & C.], 611; 1 Hun, 143; 46 How., 315.) The relator is a corporation organized under the laws of this State and having its principal place of business in Hew York; its capital stock was $20,000,000.

Y. S. C. R. [T. & C.], 644.) This action was brought to recover damages for the alleged negligent killing of plaintiff’s intestate, Austin Reynolds. It appeared by the evidence that the deceased, at the time of his death, lived with his father near the city of Schenectady, and about a quarter of a mile south of defendant’s road. He was a bright, intelligent, and industrious boy, a little over twelve years of age.

(Reported below, 2 N. T. S. C. R. [T. & G], 568.) The action first above entitled was originally begun against Charles S. P. Bowles, R. Gordon Bowles, William B. Bowles, Nathan Appleton, Robert C. H. Bowles and Henry C. Stetson, as members of the firm of Bowles, Brothers & Co., by attachment issued on the 13th day of September, 1872, against defendants as non-residents.

<p>Appeal front order, of the General Term of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a verdict, and granting a new trial. ■ .</p> <p>This action was brought against the defendant McManus, together with John Tighe and Edwin T. Eobinson, to recover the value of a. quantity of barley, malt, alleged .by the plaintiff to have been sold and delivered to defendants as partners, under the firm name of Tighe & Eobinson.</p> <p>. The issue upon the trial, between plaintiff and defendant McManus, was whether he (McManus) was liable to plaintiff as a partner in.said firm. Plaintiff’s evidence showed that McManus. purchased for the business and owned the brewery and all the fixtures and implements necessary for the prosecution of the business of brewing used by the firm; he furnished the capital, the proceeds of the business were paid over to him and he met the notes of the concern as they became due. Eobinson was a brewer and attended to the manufacturing of the ale and was to have sixty dollars per month at all events. Tighe was the book-keeper of the concern, and Grattan, .who was ostensibly a partner, was the out-door man, who did the teaming and work of that kind. McManus was, in many cases, the direct purchaser of the materials necessary for the business, and in most cases cognizant of and connected in some way with the purchases. From time to time he purchased additional implements and facilities for carrying on the business.</p> <p>Declarations on his part to plaintiff and others were also proved, to the effect that he was interested in the business. -</p> <p>McManus, as a witness in his own behalf, testified that he was not a partner, and had no pecuniary interest in the business whatever, and that he was simply to have the sum of $700 for the use of his property. He also testified that he told plaintiff that in purchasing, he did it with a view to help Tighe and Grattan, who were relatives, and that that was his sole motive. The latter clause of the answer was, upon motion of plaintiff’s counsel, stricken out. The counsel for McManus then offered to prove that the latter purchased the property for the purpose of aiding said relatives. The evidence was rejected and said counsel excepted. Further facts appear in the opinion.</p> <p>The judge at the trial properly excluded defendant’s testimony as to his purpose in buying the brewery, etc., and making advances of money. (Fielder v. Darrin, 50 N. Y., 438; Leffler v. Field, 52 id., 321; Cowdrey v. Coit, 44 id., 391; Cortland Co. v. Herkimer Co., id., 22.)</p> <p>None of the elements essential to a partnership were proved to exist between McM. and the other defendants. (Coll. on Part., § 18; Man. B. and M. Co. v. Sears, 45 N. Y., 799.) There was no evidence that appellant had made representations from which plaintiff had a right to infer that he was a partner. (Dickinson v. Valpy, 10 B. &. C., 128,140; Irvin v. Conklin, 36 Barb., 64; Pars. Mer. Law, 167; Holcroft v. Hoggins, 52 Eng. C. L., 448; Coll. on Part., § 97.) The evidence that McM. made the purchase for the purpose of aiding his relatives, was improperly excluded. (Bedell v. Chase, 34 N. Y., 386; Paper Works v. Willett, 19 Abb., 106; Cort. Co. v. Herk. Co., 44 N. Y., 22; Lain v. Russell, 42 id., 251.)</p>

(Reported below, 45 How. Pr., 276.) The cause of action set forth in the complaint was, in substance, that plaintiff being the owner of certain railroad bonds of the par value of $110,000 employed defendant, a stockbroker in the city of New York, as his broker to sell the-same; that defendant informed plaintiff that' sixty per cent on the par value was all that he could obtain for the same,, and plaintiff relying thereon authorized the sale at that rate; that defendant…

This action was brought to restrain defendant from erecting buildings upon a portion of his premises over which plaintiff claimed a right of way. Held: taken and considered in all courts of law and equity of this State. Eostrand avenue had been opened, graded and paved and fit for travel from De Kalb avenue to Flushing avenue, before the commencement of this action.

Appeal by defendant George M. Hyde from judgment of the General Term of the Supreme Court, in the second judicial department, affirming a judgment in favor of plaintiffs entered upon a verdict, and affirming order denying motion for a new trial. This action was brought against defendants, who were alleged to be members of the firm of A. D. Putnam & Co., to recover for goods sold and delivered to that firm. Defendant Hyde denied that he was a partner.

The action was for a breach of promise of marriage. The cause of action survived and the court below should have ordered a revivor of the action against the defendants. (McDonald v. Walsh, 5 Abb. Pr., 68; McNiff v. Short, 14 How., 463; Cheever v. Arnold, 15 N. Y., 345; 2 R. S., 138, § 1; 2 Edms.

Appeal by defendants Stevens and Hathaway from judgment of' the General Term of the Supreme Court in the third judicial department, affirming, as to them, a judgment in favor of plaintiff entered upon a verdict, and affirming an order denying a motion for a new trial. This was an action upon a promissory note. The defence was payment. Plaintiff was called as a witness and gave testimony in his own behalf.

This was an action upon a policy of fire insurance insuring plaintiffs to the amount of $1,000 upon a printing press, types, negatives and “ their stock as photographers, including engravings and materials used in their business.” The policy contained a clause prohibiting, among other things, the keeping or use of kerosene in a building containing the property.insured unless by special consent in writing.

Special Term directing a writ of peremptory mandamus to issue. • An alternative writ was issued alleging, in substance, that the relator was, on or about May 1st, 1870, duly appointed deputy clerk of the Court of Special Sessions for the city and county of New York at a salary, as fixed by law, of $5,000 per annum, which office he has continued to hold and still holds; that he presented his claim for salary for the months of February, March, April and May, 1873, to the…

The complaint alleged in substance that, on the 5th of May, 1868, plaintiff borrowed of defendant $25,250, in currency, for ninety days, upon an agreement that defendant should pay for such loan one-half per cent per month in currency, together with interest at the rate of seven per cent per annum ; that gold was then at thirty-nine and one-quarter per cent premium in the market; that thereupon plaintiff made and delivered his promissory note for $25,641.75, payable ninety…

Appeal by defendant Jerome from a judgment of the General Term of the Supreme Court -in the first judicial department, affirming a judgment in favor of plaintiffs entered upon the report of, a referee. This action was brought upon a bond given by defendant Virginia Eee, as administratrix of the estate of Uriah P. Levy, the other defendants being her sureties therein.

(Reported below, 1 Hun, 102; 3 H.Y. S. C. R. (T. & C.), 179.) In 1867, Joseph R. Stuyvesant, late of the city of Hew York, deceased, was the owner of two lots on Third avenue in said city, known as Hos. 158 and 160, and the lessee of two other lots, Hos. 152 and 154. During July, in said year, he made a lease of the four lots, with the buildings thereon, to Browning and Moore for ten years, from May 1, 1868 ; rent $6,000 per annum, payable quarterly.

(Reported below, 2 iST. Y. S. C. R. [T. & 0.], 88.) This action was brought to obtain judicial construction of the last will and testament of Joshua- A. Story, late of Cooperstown, Otsego county, deceased.

This action was brought to recover a balance alleged to be due plaintiff for divers lots of cheese sold and delivered to the defendants. The purchases were made on behalf of the defendants by one Chapman, as their agent.

<p>Where, upon the trial of an indictment, the instructions of the court to the jury as to the offence charged, are unexceptionable and cover every element of the crime, and. correct rules are laid down for the proper application of the evidence, it is not strictly the right of the prisoner to ask instructions upon a hypothetical case based upon other facts.</p> <p>On the trial of an indictment for an assault with intent to kill, the court charged, that it was indispensable to a conviction of the. principal offence to find that the prisoner intended to kill the prosecutor, and gave detailed instructions as to the rules of evidence applicable, to which there were no exceptions; the court was requested by the prisoner’s counsel to charge, that before they could convict of an assault with intent to kill, they must be satisfied upon the evidence, that had death ensued; the prisoner would be guilty of murder in the second degree. The court refused so to charge. Held, no error; that the prisoner was not - legally entitled to a charge upon the. subject ; and that the charge sought for would have been improper as it excluded the hypothesis of murder in the first degree.</p> <p>It seems, that, in order to convict of the offence charged, the evidence must be such, that if death had ensued the prisoner would have been guilty, at least, of murder in the second degree.</p> <p>Ramsey v. The People (19 N. Y., 41) and The People Y.'Shaw (1 Park., 827) limited;</p> <p>The prisoner’s counsel requested the court to charge, -that under the indict- : ment the prisoner could not be convicted of an assault with a sharp ; dangerous weapon with intent to do bodily harm. This was conceded by the district attorney, and it did not appear that the court made any ruling upon the subject. Reid, that the proposition as matter of law was erroneous (chap. 74,'Laws of 1854), but the error was not available " here, because : 1st It was the request of the prisoner’s counsel. 2d. - • The court made, no ruling upon it. 3d. There was no exception. 4th. As matter of fact, considering the character of the weapon used, it mig'ht have been assumed that the facts would not have justified a conviction for such an offence.</p> <p>A legal defect in the evidence upon a criminal trial, such as to constitute a question of law, is not available here without an exception.</p>

There were two appeals in this matter, one by Robert Hitchcock, receiver of the Atlantic and Great Western Railway Company, and one by Jeremiah S. Black, from an order of the General Term of the Supreme Court in the fourth judicial department, affirming an order of Special Term in reference to payments from a fund in the hands of Robert B. Potter, receiver. (Reported below, 2 FT.

<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 upon an indemnity bond given by defendant Quinn as principal, and defendants McCann and Crowley as sureties, to the plaintiff, who was at the time sheriff of the county of New York, indemnifying him for levying upon personal property by virtue of an execution in his hands in favor of Quinn against one Montgomery.</p> <p>Plaintiff alleged in his complaint, and proved, that he levied upon and sold the property; that an action was commenced against him by one Day, who claimed to own the property levied upon, for a conversion thereof, in which action a judgment was recovered against plaintiff for $1,301.97, which judgment, together with costs and expenses amounting to $344.35, plaintiff paid. Quinn did not defend. The other defendants answered, admitting the official character of the plaintiff, the execution of the bond, and denying generally the other allegations of the complaint. Said defendants ■offered to prove, in mitigation of damages, that the property levied upon realized upon the sale by plaintiff the sum of $1,000. This evidence was objected to and excluded, and defendants excepted. Further facts appear in the opinion.</p> <p>The condition of the bond is satisfied by reimbursing to plaintiff his actual loss. (Gilbert v. Wiman, 1 N. Y., 550; Aberdeen v. Blackman, 6 Hill, 324; Jackson v. Post, 17 J. R., 482; Cutler v. Southem, 1 Saund., 116; Douglas v. Clark, 14 J. R., 177; Churchill v. Hind, 3 Denio, 321.) The proof offered was proper under a general denial. (Schermerhorn v. Van Allen, 18 Barb., 29; Quin v. Lloyd, 41 N. Y., 349; 4 E. D. Smith, 172; 31 Barb., 534; 41 N. Y., 116; Watt v. Watt, 2 Robt., 688; Travis v. Barger, 24 Barb., 614; 12 Abb., 52; Wehle v. Butler, 34 N. Y. Sup. C. [J. & S.], 215.)</p> <p>The evidence excluded was not admissible under a general denial. (McKyring v. Bull, 16 N. Y., 297; Field v. The Mayor, 6 id., 189; Texur v. Gonin, 5 Duer, 389.) The offer was insufficient, as it was not offered to show that plaintiff had not paid over the proceeds of sale, the presumption is that he did his duty. (Hartwell v. Root, 19 J. R., 345.) If not paid over, Quinn, not his sureties, could avail himself of it in mitigation. (Churchill v. Hunt, 3 Denio, 321.)</p>

Ebeob to the General Term of the Supreme Oourt in the first judicial department to review judgment affirming a judgment of the Court of General Sessions of the Peace, in and for the city and county of Hew York, entered upon a verdict convicting plaintiff in error of the crime of rape.

This action was brought to recover a quarter’s rent falling due May 1st, 1869, upon alease executed by plaintiff to defendants, of certain premises in New York. The lease was for two years from February 1st, 1868, rent payable quarterly.

take “ the testimony of defendant and such other persons as shall be subpenaed before him relative to the existence, custody, disposition and control of the books and papers ” of the firm of Thomas Leighton & Co. This action was brought for an accounting as to the partnership business of said firm of Thomas Leighton & Co., of which firm the parties were the partners.

(Reported below, 1 Hun, 318; 2 H. Y. S. C. R. [T. & C.], 538.) This action was brought to foreclose a mortgage executed by said defendant, who put in an answer. Plaintiff moved that the answer be made more definite and certain. This motion was opposed by said defendant. It was granted, and defendant required to serve an amended answer within ten days after service of copy of order on her attorney, in default whereof her answer to be stricken out.

This action was brought to recover damages for injuries received by plaintiff by being thrown from his wagon in one of the streets of the village of Mount Vernon called Fourth avenue. The accident was occasioned by the wagon sinking into a ditch or excavation made by the owners of lots upon said street, with the consent of defendant’s trustees, for the purpose of connecting their lots with a sewer in the street, and which excavation had been imperfectly filled.

This action was brought to recover the amount of an alleged subscription by defendant to the capital stock of the plaintiff. Articles of association in the form prescribed by the general railroad act of 1850 (chap. 140, Laws of 1850), with the exception that no persons were named as directors, but with the places for such names left- in blank, were signed by defendant, he agreeing to take twenty shares.

<p>Where a copy of an assessment roll is delivered to a town collector with the proper warrant attached, it is not necessary, in order to protect a collector acting thereunder, that it be accompanied by the affidavit of the assessors or a copy thereof. The warrant and copy roll constitute the process; the absence of the affidavit affords no presumption that it was not made and attached to the original roll delivered to the supervisor, and by such absence, therefore, no want of jurisdiction is made to appear.</p> <p>The provision of the statute (1 R S., 396, §§36, 37), requiring the assessment roll and warrant to be delivered to the collector by the fifteenth of December, is directory merely. A delay in the delivery until after that time does not invalidate the warrant.</p> <p>In an action upon a bond given by a collector of one of the towns of Richmond county, under the provisions of the act of 1873 (chap. 73, Laws of 1873), extending the time for the collection of taxes in said county to the 35th of May, 1873, and prescribing a return day for the warrants, held, that while a delay in the delivery of the warrant to the collector, such as rendered it impossible, after complying with the other requirements of the original statute, to seize and sell property, and pay over the moneys collected within the time required thereby, would have relieved him from the obligation to institute compulsory proceedings, the extension of the time made it possible and obligatory upon him; and that the prescribing of a return day in said statute supplied a defect in the omission of a return day in the original warrant.</p> <p>Also, held, that an outstanding warrant not in force at the time of the passage of said act, it not having been renewed under the general extension act of 1872 (chap. 10, Laws of 1872), was revived and renewed by said first mentioned act.</p> <p>Defendants offered to show, that when the warrant was executed the several amounts of taxes specified in the roll were not entered therein, but were subsequently inserted by one B. Reid, that the offer was properly rejected; that it did not repel the idea that B. inserted such amounts as the board of supervisors directed, and that the circumstance of signing first, and filling in the amounts afterward, if done by the board or under their direction at the time, did not invalidate the warrant.</p> <p>Whether such an irregularity, if it existed, could be urged against the collector, giimre.</p> <p>It seems, that where a warrant is void upon its face, it is a defence in an action upon the collector’s bond for not enforcing collection of the taxes, where he has paid over all he has collected; and the collector is not estopped from setting up such defence.</p>

<p>Plaintiff in attempting to cross Second avenue in the city of New York, was run against and injured by defendants’ cart. In an action to recover the damages, plaintiff testified, in substance, that as he reached the crossing, he saw approaching on the avenue, a horse car, and behind it the cart, both moving at an unusual rate of speed. He calculated that he had time to pass in front of the car; as he approached the track the car slackened a little and he lost sight of the cart; he passed in front of the car, when he was struck by the cart. Plaintiff testified that he did not think it possible as he lost sight of the cart that it could get around the car in that short space of time; and upon cross-examinatian, that he was pretty near the car so that he just lost sight of the cart then, and he supposed the cart turned off the track when the car slackened; that he did not suppose it would turn out and “ catch him up.” Held, that the evidence did not conclusively establish, nor was it necessarily to be inferred therefrom, that the plaintiff knew or had reason to believe, at the time of his attempt to cross, that the cart had turned off and was passing’tlie car, and that the question of contributory negligence was one of fact for a jury, and a nonsuit, error.</p> <p>When the evidence is conflicting, is capable of different interpretations, or the inferences to be drawn from it are doubtful, it is the province of the jury to pass upon it.</p>

This action was brought for injuries sustained 'by.plaintiff resulting from the'falling upon him of a quantity of earth and stone thrown from the bed of the Erie canal by a blast in the progress of the work of enlargement.

This action was brought to recover a balance alleged to be due plaintiffs by defendant, on account of various stock speculations. Plaintiffs were copartners, doing business in the city of Hew York as stock and gold brokers.

This action was brought upon a promissory note made by ■defendant Phelan and indorsed by defendant Burton, who alone defended. The note was made payable at the First National Bank of Waterloo.

(Reported below, 2 U. T. S. C. [T. & C.], 434.) This was an action of ejectment, brought to recover a small strip of land in Springville, Cattaraugus county, in the possession of the defendant, and upon which he had erected and maintained for some years a building, used for a store-house.

These are appeals from judgments of the General Term of the Court of Common Pleas for the city and county of Rew York, affirming judgments of District Courts of said city dismissing the complaint in each case.

This action was brought to recover damages for injuries received by plaintiff through the alleged negligence of defendant. Plaintiff was traveling in the evening in a wagon along Perry street, in the city of Buffalo, which street is crossed by seven tracks of defendant’s road. These tracks were used in making up and dispatching freight trains as well as in the ordinary traffic. With this plaintiff was familiar.

_ This was an action of ejectment brought to recover possession of a certain house and lot in the city of Brooklyn. On or about April 1st, 1857, one Rebecca Smith died seized of the premises in question.

Appeals from order of the General Term of the Supreme Court in the fourth judicial department, reversing an order of Special Term which denied a motion on the part of defendants to set aside the findings and decision of the court, the judgment and all proceedings herein subsequent to ver-' diet; also setting aside said findings and ordering the cause to be moved at Special Term on the equitable cause of action set forth in the complaint.

This action was brought by plaintiff as receiver of the Ocean National Bank of the city of New York, upon four promissory notes, executed by defendant Brown as maker, and defendant Stover as indorser, held by said bank. Defendant Stover, alone was served. He set up as a counter-claim, a claim for services rendered by him upon the employment of plaintiff as receiver for the benefit of the estate.

This action was brought upon a joint and several bond executed by defendants and-one Sebastian Banzer, upon the removal of an action brought by plaintiff against said Banzer from the Fourth District Court of the city of New York to the Court of Common Fleas, under the provisions of the act of 1857, in reference to the District Courts of the city of New York.

This was an action to foreclose a mortgage given prior to the passage of the legal tender act. In June, 1867, the plaintiffs recovered judgment therein in the usual form, for the foreclosure of the mortgage and a sale of the mortgaged premises.

This action was upon an account for retainers and services of plaintiff, as attorney and counselor at law for defendant. Defendant, among other things, pleaded payment. Plaintiff, as a witness in his own behalf, testified to the employment and rendition of the services.

This action was brought to recover for an alleged shortage upon the delivery of a quantity of grain purchased by plaintiffs of defendant. On the 8th day of May, 1869, the defendant contracted to sell to the plaintiffs 12,569 bushels of oats, then supposed to be in Scott & Co.’s stores at the Atlantic dock, Brooklyn, for which he held their warehouse receipt, by which the quantity was guaranteed.

These were motions to dismiss the appeals in the actions above entitled. In the cause first entitled judgment was perfected below in favor of plaintiff, upon the verdict of a jury, for $269.49 damages, besides costs. In the cause second entitled the judgment was for $247.39, besides costs. On appeal both of the judgménts were affirmed, and from the judgments of affirmance appeals were taken by defendant to this court.

<p>By the provision of the annual tax levy for the city of New York (§ 7, chap. 876, Laws of 1869) authorizing the comptroller of said city to audit, adjust and pay “ claims, not to exceed the sum of $50,000, of members ” of certain fire companies, the legislature did not intend to declare the legality of said claims; but as there was no basis either in law or equity for a demand of payment as of right, a gratuity was intended. The restriction as to amount applied as well to the auditing and adjusting as to the payment, and the comptroller had no authority to audit or to find “ to be due ” a greater sum than that specified. The provision required him simply to adjust the amount of the gifts to the number of claimants and their relative interests therein.</p> <p>The provision of the city tax levy for 1870 (§ 7, chap. 383, Laws <?f 1870) authorizing the comptroller to pay the claims “found to be due” under the act of 1869, included only claims thus legally adjusted, and the same limitation applied.</p> <p>Accordingly held, that an audit and payment by the comptroller, out of the avails of the bonds of said city issued ostensibly in pursuance of said acts, of a sum greater than $50,000, was illegal, and that defendant, to whom as assignee of the beneficiaries mentioned in the said acts the money was paid, was chargeable with knowledge of this and was liable for the excess.</p> <p>It seems, the same liability would have attached although he received it as attorney for the claimants and retained only a share as agreed upon between them.</p> <p>The title, however, to the money so paid and the right of action to recover the same, is in the city not the State, and no action can be maintained by the latter therefor. (Church, Ch. J., and Rapadlo, J., dissenting.)</p> <p>The fact that the legislative direction was to raise money for the purposes of a civil division of the State, differing in extent from the city, whose expenses were ordinarily provided for by taxation ordered by and the avails of which went into the treasury of the State, does not affect the title, as the moneys raised in excess of the statutory authority were not raised for the purposes of such civil division, nor by taxation, but by the bonds of the city and paid into the city treasury and so became the funds and property of the city. (Church, Ch. J., and Rapadlo, J., dissenting.)</p> <p>Where the obligations of a municipal corporation are issued under an unfounded pretence of authority, and the moneys raised thereon paid into its treasury, they become the funds and property of the corporation; and in case of a misappropriation thereof, it alone, in the absence of any controlling legislative enactment, can maintain an action for its recovery. (Church, Ch. J., and Rapadlo, J., dissenting.)</p> <p>The facts that the municipal body and its officers having authority to act in the premises have, with full knowledge, acquiesced in the misapplication of the moneys, and colluded with the defendant in protecting him from responsibility by judicial means or remedies, do not give a right of action to the State, or authorize it to interfere through its attorney-general, by action to recover the moneys, making the wrongdoer and the corporation defendants. (Church, Oh. J., and Rapallo, J., dissenting.)</p> <p>An omission on the part of the corporation in such an action to defend or to assert its legal rights does not work a transfer of the fund or of the right of action.</p> <p>In the absence of express legislation to that end the State can assert no sovereign rights over tire property of municipal corporations. (Church, Oh. J., and Rapallo, J., dissenting.)</p>

The court which convicted said plaintiff in error was held by three persons, who were appointed and claimed to act as police justices under the act chapter 538, Laws of 1873, and as such held said court. The act under which the police justices, who composed the court in which the plaintiff in error was convicted, were appointed, was unconstitutional and the court unlawfully constituted.

Appeal by defendant Ward, from judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment in favor of plaintiffs, entered upon the report of a referee. This action was brought upon a bond in the penalty of $2,000, executed by the defendant.

<p>Upon a criminal trial where guilty knowledge is an ingredient of the offence charged, to prove this, evidence of other acts of a like character may be given where they are necessarily connected with that which is the subject of the prosecution, either by some connection of time or place, or as furnishing a clue to the motive on the part of the accused'.</p> <p>Upon the trial of an indictment for receiving stolen goods, with knowledge, evidence of a stealing from the same owners of similar goods by the same persons, from whom the accused is charged with having received the goods in question, and of a purchase thereof by the accused for a very inadequate price, or with knowledge that they were stolen but a short time prior to the transaction in question, is proper to prove the scienter..</p> <p>So, also, evidence of the declarations of the accused as to matters within his knowledge or of which he may be presumed to have knowledge, and which are relevant and material to the inquiry.</p> <p>Plaintiff in error was indicted for receiving five bars of pig-iron March 3, 1873, knowing them to have been stolen. Upon the trial the district attorney, in his opening, stated that he would seek to prove and ask a conviction for receiving five bars on the evening of March 10th. One of the prosecutors, in answer to a question as to how his attention was drawn to. a loss of pig-iron by his firm, stated, that on the morning of March 10th lie saw five bars of their iron in front of the prisoner’s store,, stolen the night before. No attempt was made to show that this iron had come to the possession of or had been received by the prisoner, and the district attorney declared that he did not so claim. Evidence was then offered of a search for and discovery of iron alleged to have been stolen on a prior occasion and received by the prisoner. This was objected to on the ground that the prosecution having given evidence to prove one offence, could not prove and claim a conviction for another. The objection was overruled. Held, no error.</p> <p>It seems, that on a criminal trial especially,where incompetent evidence is received against the accused, the judgment will be reversed unless the error is shown conclusively to be innoxious. It is not enough that the court sitting in review are of the opinion the result may and proba.bly would have been the same had the objectionable evidence been excluded.</p>

(Reported below, é Jones .& Spencer, 180.) The facts submitted were in substance as follows: On the 13th day of April, 1866, the Lorillard Fire Insurance Company issued to plaintiff a policy of insurance for the sum of $3,000, thus divided in the policy: “ $2,000 on his stone building, $800 on his steam engine and apparatus therein, and $200 on his household furniture, clothing and books stored therein.” Prior to issuing said policy the company required plaintiff to answer…

(Reported below, 4 Jones & Spencer, 126.) This action was brought to recover a balance alleged to be due for a quantity of coal sold and delivered by plaintiff to defendant. The answer set up as a counter-claim, in substance, that plaintiff contracted to sell and deliver a specified quantity, only a portion of which it delivered, and claimed damages for the nón-delivery of the residue.

(Reported below, 4 Jones & Spencer, 413.) This action was brought upon an undertaking executed by the defendants, as sureties, on an appeal to the General Term of the Court of Common Pleas, from a judgment entered in an action in said court in favor of one Frederick Dennstaedt, plaintiff, against Carl Anschutz, defendant.

<p>In construing the autographie will of an illiterate person, it is the duty of the court to search for and give effect to the intent as it is made to appear from the body of the instrument, read in the light of the surroundings and relations of the testator, disregarding as far as may be technical rules of construction, and also the usual technical meaning of words and. phrases, when contrary to the intent as thus disclosed.</p> <p>The will of I., who died in 1823, contained a devise to his son J. of certain real estate “ during his natural life, but if he leave no legitimate heirs,” then the property to “-revert back” to his son D., his heirs and .assigns. I. died, leaving six children. A clause in the will expressed the testator’s purpose to divide his property among his children. No other provision was made for D., while provision was made for all the others. By another clause D. was required to pay a grandson of the testator twenty dollars, “when he enjoys my homestead, as specified.” J. had been married many years, and had no children. Provision was made for his wife, in case she survived him. In an action of ejectment brought by devisees of J., held, that the meaning of the testator, in the use1 of thé, words “ if he leave no legitimate heirs,” was, if he leave no children born; in lawful wedlock living at the time of his decease; that the words “ legitimate heir,” as used, were words of purchase, not of limitation,' and, therefore, that the rule in Shelly's Case did not apply; that the devise' was to J. for life, with a remainder to D„ in fee, contingent upon the death of J. leaving no child surviving; and this contingency having happened, that D. took an absolute fee.</p> <p>J. was appointed by the will and qualified as executor. Sufficient personal property came to his hands to pay the testator’s debts, and among them a judgment against him. J. allowed the lands so devised to be sold on an execution issued upon said judgment, bid in the same, and took a sheriff’s deed. Held, that this was a breach of duty, and a violation of the fiduciary relations existing between him and the devisees, arid that he took no title under the deed, but held the title thereunder for the benefit of and in trust for the devisees entitled.</p> <p>One charged with the duty of protecting or caring for property, as execm tor, trustee, agent or otherwise, cannot deal with or become the purchaser of it for his own advantage, and to the prejudice of those whom he represents.</p> <p>J. died, leaving a will, by which he devised the lands in question to. his wife for life, remainder, in specified portions, to the plaintiffs herein. D. took a quit-claim deed from the widow. Held, that this did not estop D. or defendant claiming under him from asserting a title adverse to that of J.</p>

Appeal by George 0. Genet from order of the General . Term of the Supreme Court in the third judicial department, affirming an order of Special Term requiring said appellant to pay a judgment in favor of defendant for costs herein. This was an equity action brought to redeem cértain real estate. After the commencement of this action the said George C. Genet purchased of the plaintiff and took an assignment of the cause of action.

(Reported below, 3 N. Y. S. C. [T. & C.], 4UT; 1 Hun, 443.) This was an action for divorce. The summons ivas served by publication, there was no apj)earance on the part of defendant, and a judgment for an absolute divorce was obtained and perfected.

(Reported below, 5 Jones & Spencer, 23.) , This action was brought to recover damages for an alleged breach of contract. Plaintiff alleged, and his evidence tended to show, that in April, 1872, he entered into a contract with defendant by which he agreed to lease certain premises in Hew York suitable for the manufacture of what was styled “ patent bolster spring beds; ” was to find security for the payment of the rent and to assign the lease to defendant.

(Reported below, 5 Jones & Spencer, 157.) This action was brought against defendants to recovei damages alleged to have been sustained through defendants negligence.

These were appeals from judgments of the General Term affirming decrees of the surrogate of Erie county settling the accounts of appellant as testamentary guardian and executor under the will of William Newman, deceased. The questions raised were disposed of on the facts in the case.

This was an action of ejectment to recover the possession of premises described as lots ten, twelve and twenty-four in block five in the… Held: no error, on the ground above stated. Defendant’s answer, among other defences, alleged that lots ten and twelve were sold at auction, under and in pursuance of a decree in chancery by a master, and bid off by defendant, who paid the purchase-price and expenses; that defendant agreed with one Augustus Walters (under whom plaintiffs…

This was an appeal from a judgment of the General Term affirming a judgment of Special Term, denying the application of relator for a peremptory writ of mandamus requiring defendant to pay a claim for salary alleged to be due relator as superintendent of The New York State Institution for the Blind. By chapter 587 of the .Laws of 1865, a State institution for the blind was authorized to be established.

This was an appeal from an order of General Term reversing a surrogate’s decree upon the final accounting of respondent, as administratrix of the estate of William Domery, deceased. (Reported below, 2 H. Y. S. G. [T. & C.],-675.) • In her account she credited herself with various sums paid-to two brothers and a sister for services to the estate. The' surrogate allowed a small proportion of the sums so credited' rejecting the residue.