Volume 59 — Barbour's New York Supreme Court Reports

THIS was an action brought by a residuary devisee, to set aside a sale of certain real estate of Joseph Ellis, deceased, made by order of the surrogate of Ulster county, upon the application of David Ellis, the executor of said Joseph, for the payment of debts. The cause was tried at the Ulster circuit on the 21st day of January, 1863, by the court, without a jury.

• The plaintiff was a member of the copartnership firm of S. A. Parks & Co., the affairs of which were in an unsettled condition. The firm owned 198 shares, of §100 each, of the capital stock of the. Pioneer Paper Company.

ACTION to enforce the specific performance of a'contract for the sale of real estate.

THE parties own farms adjoining each other, the plaintiff’s being on the north of the defendant’s. A stream of water runs from the plaintiff’s farm.on the defendant’s, and after running east on the defendant’s farm nearly parallel to, and only a short distance from the division line between them, turns northwardly, and again runs on the plaintiff’s land a short distance before emptying in the river.

The action was trespass, brought against George H. Champlin for the taking and conversion of the canal boat “Roman.” After the' trial Champlin died, and the suit is continued against his executors, The plaintiff claimed to own the boat by purchase from his mother, Azuba Whedon, in December, 1861.

THE appellant was the owner ot the steamboat Oswego, engaged, in the season of 1867, in towing canal boats on the Oneida lake and river, from the head of the lake to the junction of the Oneida and Oswego rivers, at a place called “Three ¡River Point.” The respondent was the owner of a canal boat, called the P. D. Devoe. Captain Shaver, of the Oswego, took the plaintiff’s boat, with others, in tow at Barnhart’s Bay, on the lake, for the Oswego river.

Certain premises were originally owned by William Vizor, who by his last will and testament, bearing date April 6, 1830, devised the same to his wife Haney Vizor, for life, and after her death, to his nephew William S. •Vizor, his heirs and assigns forever. The testator died in December, 1832.

SUBMISSION of a controversy without action, under section 372 of the Code. The facts sufficiently appear in the opinion of the court.

CASE agreed upon to submit a controversy without action, under section 372 of the Code. From the year 1863, to and including the 8th day of September, 1869, James H. Goldey was a private banker, (but not an individual banker incorporated under the statute,) doing business in the city of Oswego.

ACTIOS against a sheriff for not collecting or returning an execution. The defense was that the plaintiff gave directions to the deputy holding the execution, with reference thereto, which were complied with by the deputy, who thereby became the agent of the plaintiff’ and which, released the sheriff from all liability for the acts or neglects of the deputy in not returning the execution.

APPEAL by the defendant from a judgment entered upon the verdict of a jury.

APPEAL by the defendant from a judgment entered upon the report of a referee. The action was brought to establish the right of the plaintiff to the use of an alley on the south side of his lot, in the village of Saratoga Springs, which lot was conveyed to the plaintiff by Amos S. Maxwell and wife, by deed dated June 2, 1855.

I 1ST 1867, the defendants, who were the assessors of the town of Bast Bloomfield, Ontario county, assessed the plaintiff as an inhabitant of that town, the sum of $188.66, being an assessment upon $10,000 of personal property. He was duly notified of the assessment.

THIS was an action in the nature of a writ of quo warranto, brought for the purpose of removing the defendant from the office of county judge of the county of Wayne, into which office, it is alleged, he has intruded himself “ without right or lawful authority,” and for the purpose of putting the relator and plaintiff, Clark, in possession of that office, to which he claims to have been lawfully elected. The action was tried by the court without a jury, in January, 1871.

THIS is an action in the nature of a quo warranto, commenced and prosecuted pursuant to sections 428 to 448 of the Code, to oust the defendant from the office of county judge of Niagara county, and to install the relator into the office.

<p>APPEAL from a judgment entered upon the report of a referee.</p> <p>The action was brought to recover the amount of a certified check.</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 Sew York, a check drawn by one O. E. Burns, of which the following is a copy</p> <p>“ $3,000. Albion, ET. 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. E. Burns.”</p> <p>"Which 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 the plaintiff thereupon, without actual notice of anything tending to impair the validity of said check, beyond what appeared upon the face of the check and the circumstances attending the transfer thereof tp the plaintiff, purchased the same from said Gallaudet, and paid him therefor the full sum of three thousand dollars. That the plaintiff' thereupon caused said check to be forwarded to said Bank of 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 said check when so presented to the plaintiff' by said Gallaudet, was stamped with a United States two cent revenue stamp. 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 afterwards, any funds in said bank to pay the same, and his said acceptance thereof 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 to checks, hut' had prohibited them from so doing. That it was 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 Gallaudet prior to March, 1866.</p> <p>And the, referee found, as matters of law, that such acceptance being of a post dated check, when made in February, 1866, was void, because it was in violation of ■ the provisions .of the laws of 1840,, chapter 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 even if said Chester had subsequently and on the 1st and 2d days of March, 1866, authority, as “ assistant cashier,” to certify checks upon the defendant’s bank, the plaintiff is chargeable with notice of the extent of this agency, and of his authority in the. early part of February, 1866, to do the act which he then performed, and for which the defendant is sought to be charged. That the defendant was not chargeable for this act of assumed agency, which was unauthorized and illegal when performed, even if said Chester subsequently and on the 1st and 2d days of March, 1866, had full authority to accept or certify said check. 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>And the referee decided that the defendant was entitled to judgment, with costs, and ordered accordingly.</p> <p>The plaintiff appealed from the judgment, to the general term.</p>

THIS action was brought by the plaintiff as mortgagee of a lathe and other chattels, against the defendant as sheriff, for unlawfully taking and detaining the same. The articles in question were in the possession of the plaintiff as mortgagee, and were taken and sold by the defendant under executions on judgments against the mortgagors. For this taking the action was brought. The defendant justified his taking under the executions and judgment.

THIS is an appeal by the plaintiffs from a judgment entered at the circuit, dismissing the complaint, with costs.

THIS action was brought to recover the proceeds of a draft for $821.91, received by the defendant under the following circumstances: On April 15, 1867, the plaintiff was in New Orleans, Louisiana, and had then in his possession a draft for $821.91 on Spence, Montague & Co. of New York city, drawn by Francis P. Drain, at Havana, March 30, 1867, payable to the order of the plaintiff' sixty days after date, of which draft the plaintiff was the owner, and on that day he…

The action was brought to recover dower in certain premises in the city of New York, in the possession of, and claimed by, the defendant. The complaint alleged that Edward A. Hieoll intermarried with the plaintiff in the city of New York, in the year 1818.

APPEAL by the defendants from a judgment entered upon the report of a referee. The action was brought by the plaintiff' to recover for professional services as an attorney and counsellor. The referee allowed the whole amount of the plaintiff’s claim.

THIS is an appeal from a judgment rendered for the plaintiff, in an action brought by him against the defendant, to restrain an action of ejectment, brought by the defendant, in the superior court of New York, against the plaintiff, and'to compel the defendant to execute and deliver to the plaintiff a deed confirming the title of the plaintiff to the premises in dispute, under the defendant’s former conveyance thereof to the plaintiff’s grantor, Mary Child.

The demurrer was upon the ground that the complaint did not state a cause of action. The action was commenced by the service of a summons for relief, and the complaint was framed with a double aspect to both equitable and legal relief.

IÍT this action, and four others pending in the Sew York common pleas, and eleven pending in the superior court, motions were made to have the same removed into the Supreme Court. Five actions of the same character, against the same defendants, had been commenced in this court.

The action was brought to recover the balance of an account stated, upon an indebtedness accruing to the plaintiff from the defendant, upon an acceptance given in San Francisco, November 23, 1850. The defendant pleaded the general issue, and the statute of limitations.

The proceeding was instituted under the act of the legislature in- relation to frauds in assessments for local improvements in the city of New York. .(Laws of 1858, p. 574.) The assessment list purported, on its face, to have been made under and by virtue of a resolution and ordinance of the common council of the city, adopted March 7, 1868. The assessment was confirmed by the board of revision and correction of assessment lists, on the 27th of January, 1870.

<p>It is not every alteration that will destroy an instrument. In order to produce that effect, the alteration must be material.</p> <p>The general rule is that any alteration which in any event may alter the promissor’s liability is material, and vitiating, if made without his consent at the time, or approval afterwards; otherwise not.</p> <p>Where a note is given payable “to the order of” certain persons named, and after its delivery by the makers, the holders, without the knowledge or consent of the makers, erase the wolds “to the order of,” and insert the words. “ or bearer,” this is an alteration which does not change or affect the liability of the makers; and unless it can be seen that their liability may possibly be affected prejudicially, by the alteration, it does not vitiate and destroy the note; it sems.</p> <p>Even assuming that such an alteration was in fact made, and is material, still it is not necessarily a forgery; that depending upon the intention with which the alteration was made. A fraudulent or felonious intention is not to be presumed, but is to be proved.</p> <p>Although an alteration, in a promissory note, be material, so that the makers might, if they should so elect, avoid payment, upon the ground of the unauthorized alteration, yet as they might, upon inquiring into the facts and circumstances, ratify the alteration, and thus render the note perfectly valid; or consent to pay it without regard to such alteration; and as it would be but just that they should do so, the law will infer that they would.</p> <p>But this is a question which concerns the makers, alone. A third person who is not a party to the note, nor in privity with any one who is a party, has no interest in the question, nor right to assume that the makers will refuse to pay, on account of the alteration.</p> <p>A person to whom a promissory note, made by another, has been turned out, by the holders, as collateral security for the payment of a loan, and who, on demand of the note, after payment of the loan, refuses to redeliver it, cannot, in an action by such holders, to recover for the wrongful conversion of the note, set up the defense that a material alteration, has been made, in it, since it was executed; either as a bar to the action, or to mitigate the damages.</p> <p>The whole matter and subject of the alteration of the note is, as between the parties to such action, wholly irrelevant and immaterial, for any purpose.</p> <p>The defendant is to be deemed and taken as having no interest in the note, any more than one would have who had obtained possession of the property of another, by any tort or larceny. He is neither lawful owner nor lawful holder. His possession is without right, and by means tortious, and through a breach of trust.</p> <p>No person is allowed to defend an action upon a question which does not concern him, and in which he has no lawful interest.</p>

ACTION to foreclose a mortgage. The mortgage, and the bond collateral thereto, were originally given by the defendant Michael Heavy, to William' McCarthy, as special guardian of certain infants, and were claimed to have been assigned to the plaintiff, by said William McCarthy, under and in pursuance of an order made in the county court of'Monroe county, by the special county judge. The defendant Michael Heavy was the only one who appeared and answered.

<p>An incoming partner, who becomes a member of the firm after a contract has been made by it with an individual, for work and labor to be done by him as superintendent, and, performance has been commenced under it, is liable to the employee for the work and labor performed by the latter after such new partner becomes a member of the firm, and is elected and takes upon ■himself the duties of its chief managing and executive officer,</p> <p>If the company is dissolved, and abandons its work, before the period for which the employee was hired expires, this gives the latter the right to bring his action for work and labor, the same as though no special contract had ever been made.</p> <p>But he cannot be made liable for that portion of the indebtedness which ac- • crued before he came into the firm, except by his own act or agreement founded upon a sufficient consideration.</p> <p>Merely becoming a member of the firm is not sufficient, and raises no legal presumption against him. His promise or agreeement, to pay previous debts of the firm, cannot be inferred from that circumstance alone.</p> <p>The question, in such a case, is whether the incoming partner has assumed the old indebtedness. And this is a question of fact, or a mixed question of fact and of law, but not of law merely. If the referee fails to find that fact, no recovery can be had.</p>

<p>In an action for goods sold and delivered, and to recover the balance of an account, day-books and books of original entries, not kept by the plaintiffs themselves, but by book-keepers employed for that purpose, and who did not make the sales charged by them,, but only entered the sales reported to them by the salesmen, are not admissible in evidence for the purpose of proving the entries ,of sales, on proof of handwriting; which sales are not remembered by the persons making the same; and vjhere the sale has not been proven, apart from the book.</p> <p>Such books, as books of account, are incompetent witnesses for any purpose. Of themselves they can neither prove, nor tend to prove, anything. The entries being all made by third persons, are mere written statements of others—no better than hearsay.</p> <p>Nor can such entries be properly received in evidence as original memoranda, to aid in establishing the defendant’s indebtedness.</p> <p>Yet it seems, that in such a case, if it appears that the salesman who reported a sale saw the charge made by- the book-keeper, and knew, then, that it was correctly made, it may be introduced as a memorandum, in connection with the testimony of the salesman, either with or without the testimony of the book-keeper, the salesman having forgotten the fact that such sale was made . by him.</p> <p>There is no case, or rule of evidence, which holds'that the books of account of a party are proper evidence to prove an indebtedness against another, where such books have not been kept by a clerk employed by him. Ter Johnsost, J.</p>

<p>APPEAL, by the defendant, from an order made at a special term overruling a demurrer to the amended complaint.</p> <p>In such amended complaint, the plaintiff alleged that on the 12th day of October, 1869, at the city of Buffalo, the plaintiff purchased from the defendant, the canal boat “ S. A. Tanner, of Montezuma,” all her tow lines, tackle and apparel, with all her beds and bedding, and all her furniture, chairs, tables, &c., on board said boat, wifh four horses, with harnesses and full gearing for towing purposes, for $1900. That at the time the plaintiff purchased said boat she was loaded with wheat, being filled upon the inside, and sunk deep down in the water, so that no examination could be made of the condition of the boat. That said horses and harnesses were all in the defendant’s stable, and no examination was made of them. That during the negotiation for said purchase, at Buffalo, on the 12th day of October, aforesaid, the defendant represented to the plaintiff, that said canal boat had only been built five years; that at the time she was built he (said defendant) cut and got out the timber of which she was made, and knew her material and the manner in which she was built. That shé was built of good oak timber; that she was perfectly free- from decay, and never had been broken or injured in any particular or part; that she was good and sound in all respects, and in every part, as she was the day she came off the stocks. That the defendant stated and represented, during said negotiations, that said horses were all and each of them, good strong horses for towing, in good condition, and worth, altogether, $300. That said plaintiff knew nothing of either said horses or said canal boat, except from the representations and statements made concerning them by the defendant. That the plaintiff* believed said statements and representations of the defendant to be true, and trusted and relied on them exclusively, in making said purchase. That said representations were each and every one of them false and untrue, and the defendant well knew said representations to be false and untrue at the time he made the same, and the plaintiff was cheated and deceived by said false representations of the defendant. That in fact and truth, said boat was upwards of seven years old, and had suffered much from decay in all her timbers. That her parts had been broken and patched with bands of iron, and said boat was in a dilapidated and ruinous condition, and not worth $900 at the time and place when said purchase was made. That said horses were poor, old and weak, and totally unfit for towing, and were not worth $5, all' of which was well known to the defendant at the time he made the statements and representations aforesaid. That said representations and statements of the "defendant were fraudulently made, for the purpose, and with the intent of deceiving, cheating and defrauding the plaintiff, and said plaintiff was deceived, cheated and defrauded thereby, by reason of which he” sustained damage to the amount of $1000.</p> <p>2d. For a further and separate cause of action against said defendant, the plaintiff alleged that said defendant did, on or about the 12th day of October aforesaid, wrongfully and fraudulently take and carry away articles of furniture, beds, bedding, chairs, stoves, &c., from said boat, which belonged to, and was the property of the plaintiff; that the defendant did convert the same to his own use, whereby said plaintiff sustained damage to the amount of $300. Wherefore the plaintiff demanded judgment against the defendant for $1300, besides costs and disbursements. The defendant demurred to the complaint upon the ground that it appeared, upon the face thereof, that several causes of action had been improperly united therein, to wit: one being a cause of action for fraudulent representations in the sale of personal property; and another being for for the wrongful taking, carrying away and converting other personal property.</p> <p>The court, at special term, overruled the demurrer, and ordered judgment to be entered in favor of the plaintiff, thereon; with leave to the defendant to answer, upon terms.</p> <p>The following opinion was delivered by the justice, at special term.</p>

<p>Before this court will reverse an order of a county court granting a new trial on a casé and exceptions, it must be made clearly to appear that the court below has committed some error of law.</p> <p>Where a husband abandons his wife and family, ceases to provide them, and, so far as he can, renounces his marital relations, and goes to California, where he has ever since remained, this is equivalent to abjuring the realm, by a husband, at common law; so as to enable the wife to sue and be sued as a feme sole.</p> <p>A claim for the services of her infant son, which has been assigned to her, is the separate estate of the wife, in such a case; and under our statutes for the better protection of the rights of married women, it is competent for her to maintain an action for the recovery thereof, in her own name.</p> <p>Without any reference to the question whether the plaintiff in such an action is, under the circumstances, entitled to the services of her son, as her child and servant, the fact that she is assignee of the claim, is enough to enable her to maintain the action in her own name and right.</p> <p>If it becomes necessary for the plaintiff to amend her complaint, in order that it may appear upon its face,, more clearly and specifically, by whom the service for which the action was brought was in fact performed, it may be amended upon.the trial, or after the trial, to conform to the proof.</p> <p>Greater latitude of construction is always allowable in regard to pleadings in actions commenced in justices’ courts than in actions commenced in courts of record.</p>

THIS was an action for false imprisonment, in causing the plaintiff to be imprisoned in the Cattaraugus county jail.

THIS case is a writ of certiorari sued out upon affidavit of the relator’s attorney, to review the proceedings of the respondents as commissioners appointed, pursuant to the 22d section of the general railroad act of the State of New York, passed April 2, 1850, by Justice E. Darwin Smith, upon the petitions of William Hartman and George Hartman, land owners.- The section of the statute above referred to is as follows: “Every company formed under this act, before constructing…

The action was brought to recover damages for, and to restrain, the obstruction of a water course running through the lands of the defendant Haney Drew.

THE action is against the defendant as indorser of a promissory note, of which the following is a copy: “$3802.76. ■ New York, October 1st, 1860. Twelve months after date we promise to pay to the order of ourselves, at the Bank of the Republic, thirty-eight hundred and two 76-100 dollars, value received.

This action was brought by George W. Miller against John P. White and others, to recover from them, as trustees of the Gutta Percha Manufacturing Co., a debt due from, that corporation which had been established by judgment obtained on a trial in a previous action against the corporation, for commissions on sales made for the company, in pursuance of a contract made August 1, 1863.

THE Saratoga, Schuylerville and Hoosac Tunnel Railroad Company was duly organized and incorporated the 4th day of April, 1870.

<p>Although, under the. Code, the time to answer expires by its own limitation, without the entry of a rule for default, yet the mere lapse of twenty days from the service of the summons is not the obtaining of a judgment.</p> <p>Where a judgment was recovered against the defendant after his death, every step in the cause—except the service of the summons three years before— having been taken after the defendant was dead, the judgment was set aside on motion, by his administrator.</p> <p>The former practice, under the Revised Statutes, of making a suggestion upon the record, of the' death of the defendant before judgment was obtained, is practically inapplicable, under the Code.</p> <p>There is no sense in which judgments are now entered as of any term; and there is no reason why a judgment by default, obtained in vacation, should relate back to the first day of the last preceding term.</p>

The action was for damages sustained by the plaintiff by a fall from a piazza, or verandah, extending across the rear 'of a dwelling house, owned by the defendant, and occupied at the time by a tenant by the name of Wade, under a written lease for one year. The plaintiff was a washerwoman, in the employ of the tenant. While suspending clothes upon the railing of the back piazza of the house, it gave way, and she fell and broke her arm.

<p>A promissory note given by a man to a woman, in -consideration of her promise to marry him, is made upon and for a sufficient and valuable consideration. Geo. G. Barnard, J., dissented.</p> <p>The subsequent marriage of the parties will not affect or destroy such a note. 1 It is a contract to pay, made in contemplation of marriage, and by force of the statute, (Laws of 1849, eh. 379,) remains in full force after the marriage.</p> <p>It seems the payee can sue upon such a note, at law. But whether she can or not, this court having the case before it, in an action on the law side, showing that the note was the wife’s separate property, ought, in some shape, to apply a remedy.</p> <p>The case of Curtis v. Brooks, (37 Barb. 476,) commented on, and declared to be inconsistent with the decision in Dygert v. Bemersclmider, (32 IV. T. 631.)</p> <p>Strong v. Skinner, (4 Barb. 652,) and Tisdale v. Jones, (38 id. 623,) distinguished from the present in that the marriages, there, took place before the act of 1849 was passed.</p>

APPEAL, by the defendant, from an order made at a special term, directing a reference. The complaint alleged that on the 23d day of Jannary, 1856, one Samuel L. M. Barlow, on behalf of W. BL.Áspinwall, Joseph W. Alsop, Henry Chauncey, Samuel W. Comstock, David Leavitt, Charles Gould, David Hoadley, this plaintiff and associates, made to the Ohio and Mississippi Railroad Company certain propositions for the completion and construction of said road.

APPEAL by the' plaintiffs from an order made at a special term vacating an injunction. The plaintiffs are owners of fifteen-sixteenths of the ship James Foster Jr.} belonging to the port of New York, and being one of the old line of Liverpool packets of which C. H. Marshall & Co. are agents and ship’s husbands. The ship runs regularly between New York and Liverpool.

Michael Treacy presented a petition to the court, stating that at the date of the confirmation of the assessment hereinafter mentioned, the petitioner was and still is the owner of the lots hereinafter mentioned and described, and the party aggrieved by said assessment.

EIT of error to the court of oyer and terminer of the county of Schenectady, to reverse a .conviction for perjury at an election.

APPEAL by the defendant from a judgment entered on the verdict of a jury. This action was brought to recover for “ goods, wares and merchandise, carriages, wagons, sleighs and cutters,” and for “labor and services” rendered, and “materials furnished in making repairs on such vehicles, and disbursements paid thereon, and a carriage sold on commission, all reasonably worth $5154.15.” The complaint further alleges that there is now due and owing $2255.65, with interest.

The action was brought to recover back from the defendant the amount paid the defendant’s company upon a certain draft or bill of exchange drawn on the plaintiffs, by their authority, on the 15th day of January, 1867, by the firm of Lamb, Quinlan & Co. of New Orleans, to whom the plaintiff's were indebted, for |771.45, the amount of such indebtedness, payable to the order of one T. D. Eord, of St. Louis, Mo.; which draft or bill of exchange was forwarded by mail to said T.…

On January 28, 1850, the defendants insured the life of James Sands for $5000, in consideration of the annual premium of $160, to be paid in advance, on or before the 18th day of January, in each year. James Sands died July 12, 1862, having resided until his death at Mobile, in Alabama. This action was brought to recover the amount of the policy. The following facts are undisputed, viz: 1.

APPEAL by the plaintiff from an order made at a special term.

APPEAL by the plaintiff from portions of a judgment entered upon the report of a referee. The action was brought to foreclose a mortgage. Prior to October 1,1828, Benjamin hfott, Ohauncey B. Aspinwall and'Philo Stevens, purchased of James Mellen fifteen lots of land in the town of Seriba, described in the complaint, and they were equally interested in said purchase. On the 1st of October, 1828, Mellen conveyed all of said lots to Aspinwall.

APPEAL by the defendant from a- judgment entered in in favor of the plaintiff) upon the verdict of a jury. The material facts are stated in the opinion-of the court.

The’action was brought to enjoin the foreclosure of a mortgage, on the ground of want of consideration. The mortgage was given by the plaintiff to Ohauncey W. Cherry (the husband of the defendant) on the 29th of December, 1857, for $1500, payable five years from May 13, 1858, with annual interest. The referee found the following facts: 1. That on the 7th day of May, 1852, George W. Hall and.

THIS case came before the court on a case and exceptions. The action was upon a promissory note made by the defendant, a married woman; which expressly stated that it was “ for the benefit of my separate estate, upon which I make this note a lien and charge.” On the trial, the jury, under the direction of the court, found a verdict in favor of the plaintiff, for the amount of the note and interest.

APPEAL by the defendant from a judgment of the county court of Ontario county, affirming a judgment rendered by a justice of the peace. The facts are sufficiently set forth in the opinion of the court.

THIS action was brought to recover the possession of real estate on Staten Island. The plaintiff claimed title under a deed from one Henry A. D. Freeman. Freeman derived title from one Arnold H. Wagner, who was purchaser at a foreclosure sale, in an action in which the defendants in this action were defendants. The defendants, by their answer, alleged in substance: 1.

THIS is a certiorari, under the highway act of 1847, (Laws of 1847, ch. 455,) to review the proceedings ' upon a re-assessment of damages, by five land owners, over whose lands a highway had been laid, and whose damages had been assessed by commissioners appointed by the county court of Madison county.