Volume 6 — Duer's New York Superior Court Reports

Motion by plaintiff for judgment upon a verdict, a case being made, with liberty to turn the same into a bill of exceptions. The following facts were admitted: That on the 20th of October, 1847, an open policy of insurance for $100,000 was made by the defendants with Spies, Christ & Co., of the city of Hew York, merchants, on account of whom it might concern, on merchandise on board vessel or vessels, from Hamburg, Antwerp, Bremen, or Havre.

Motioh for judgment upon a verdict in favor of the plaintiff, taken under direction of the court, upon a case to be made, to be heard in the first instance at General Term.

It was before the court upon a case containing the evidence and exceptions taken on the trial. The action was brought by the plaintiff, as owner in fee of the dwelling-house known as 496 Broadway, in the city of New York, to recover damages for the injuries alleged to have been done to his dwelling-house, by the wrongful disturbance and removal of an ancient party-wall, thereby depriving the house of the plaintiff of the support to which it was entitled.

<p>The facts are stated in the opinion.</p>

This cause was tried before Oakley, Chief-Justice, by the consent of parties, without a jury, on the 22d of February, 1856. When the testimony on both sides was closed, the Judge dismissed the complaint; the plaintiffs’ counsel excepted to the decision, and the Judge directed the exceptions to be beard in the first instance at the General Term, and judgment, in the mean time, to be suspended.

Justice Hoffman at Special Term, sustaining a demurrer to a counter-claim. The action was brought by the plaintiffs against all the defendants on a joint contract made by them to the firm of Flint, Peabody & Co., composed of the plaintiffs and one James P. Flint, who, prior to the commencement of the action, had released all his interest to plaintiffs.

The action was brought to recover the sum of $3,600, and also the sum of $349.76, alleged to be due from the defendant to the plaintiff. The complaint states, as the causes of action, that the plaintiff, about the 8th of August, 1853, had loaned to the defendant the sum of $3,600, to be repaid on demand, with interest at 6 per cent.; that'a demand had been made, and refused.

Case upon a verdict taken for the plaintiffs for the sum of $832.97, subject to the opinion of the court at General Term, and to be heard there in the first instance as to the defendant’s claim of set-off, with liberty to the court to ascertain by reference the amount of such claim if allowed; and also, with liberty to modify the verdict, and to give judgment for the defendant, if entitled thereto, by reason of the set-off.

The action was to recover the possession or value of a lot of hosiery and embroideries, worth $6293^-, delivered by the plaintiff, an importer in New York, to Adam Kerr and Charles W. Adams, composing the firm of Kerr & Co., retail dry goods merchants, doing business at No. 767 Broadway, on the 25th and 31st days of March, 1854, which they fraudulently pretended to buy on a credit of eight months.

The action was brought to recover the sum of $90, the amount of a check drawn by Shufeldt Brothers & Co., in favor of the plaintiff, upon the defendant, and dated the 14th of July, 1855. The plaintiff also claimed to recover by virtue of an assignment made to him, by Shufeldt Brothers & Co., on the 13th of July, 1855, of all the moneys then due to them from the bank.

The mortgage is alleged to bear date ou the 80th of November, 1854, and to have been duly filed in the office of the Register of the county. The complaint admitted the execution and delivery by Judson of certain prior mortgages on the same property, and made the respective mortgagees parties defendants. It is not necessary now to state these mortgages, as they are all specially referred to in the finding of the Judge that is given below.

This action came before the court at General Term, on an appeal by the defendant from the whole judgment; and on an appeal by the plaintiff from a part of the judgment The action was brought by the plaintiff, the wife, to obtain a divorce on the ground of the adultery of the defendant, her husband.

Appeal, by defendants, from a judgment at Special Term, overruling demurrer to complaint.

Appeal, by the defendant Ridgway, from a judgment entered upon the decision of Justice Hoffman at Special Term, on the 6th of March, 1856, in favor of the plaintiff. The case arose upon a demurrer by the plaintiff to the answer of the defendant Ridgway.

The action was brought upon a policy of insurance, executed in favor of the plaintiff, by the defendants, upon freight to the amount or sum of $1,500, upon all kinds of lawful goods or merchandise laden, or to be laden, on board the good British bark Bessie, on a voyage from Liverpool, Great Britain, to Alexandria.

This action was commenced on the 10th of May, 1851, to recover possession of personal property, viz., of seven barrels.of oil and one iron safe, alleged to be held by the plaintiff as a common carrier or bailee, and which were seized by the defendant on or about the 18th of February, 1851. The complaint demands the return of the goods and payment of the damages for the detention. Under this complaint and the usual affidavit, the goods were delivered to the plaintiff.

judgment entered in favor of the plaintiffs, upon a verdict for the sum of $437.61.

The plaintiff entered into an agreement under seal, with the Empire Stone-Dressing Company to furnish and deliver to him brown stone, cut and dressed as required by plans and specifications furnished by the plaintiff to them at the price of $26,000, said stone to be delivered at the corner of Fifth avenue and Thirty-fourth street, in the city of New York, and to be furnished as fast as the same should be required in the erection of the buildings about to be put up there by…

The action was brought to recover damages for the breach of a warranty on the sale of wool.

The cause was before the court upon a case containing the proceedings and exceptions on the trial, all of which, together with the issues raised by the pleadings, are folly stated in the opinion of the court.

Motion on the part of the plaintiff to set aside a nonsuit, and for a new trial. The action was brought for the delivery of the possession of thirty-six hundred bushels of oats, and the issues raised by the pleadings were tried before Oakley, Oh. J., and a jury, in November, 1854.

Appeal by plaintiffs from a judgment, at Special Term, allowing a demurrer to the complaint.

<p>Appeal by the defendant from a judgment in favor of the plaintiff, for $1542.76 and costs, founded on the verdict of a jury for that amount.</p> <p>The cause was before the court upon a case containing all the evidence given on the trial, and the exceptions then taken by the counsel for the defendant.</p> <p>The action was brought to recover damages for a wrongful conversion by the defendant of certain goods and chattels, particularly described in the complaint; and the complaint averred that, at the time of the alleged conversion, the plaintiff was the owner and entitled to the immediate possession of the goods and chattels so described.</p> <p>The answer (inter alia) denied that at the time of the alleged conversion, the plaintiff was the owner and entitled to the immediate possession of the goods and chattels mentioned and described in the complaint.</p> <p>Upon the trial, the plaintiff proved that the goods in question had been taken possession of, and sold by the defendant, and that he, the plaintiff, some years before, had purchased the. same at a sheriff’s sale, under an execution against persons who were then in possession as owners.</p> <p>Evidence was also given on the part of the defendant to show that the title so acquired by the plaintiff, by an arrangement between him and the former owner, had ceased before the seizure and sale of the goods by the defendant.</p> <p>When the testimony on the part of the plaintiff was closed, the defendant offered to show that, at the time of his alleged conversion, the title and right of possession to the property were vested in one Mrs. Frances Jackson; that her husband was in possession as her agent or tenant, and that he the defendant had sold the property with her knowledge and consent, under a mortgage which she had given to him to secure certain advances made by him to her husband.</p> <p>The counsel for the plaintiff objected to this proof, and the court excluded the same, and ruled substantially, that the only proof open to the defendant, under the pleadings, was to contest the taking of the property, or any part of it, and to show the value of that which had been taken.</p> <p>To this ruling the defendant’s counsel excepted.</p> <p>When the testimony on both sides was closed, the counsel for the defendant offered to argue to the jury the question of the plaintiff’s ownership of the property as against the defendant.</p> <p>To this the plaintiff’s counsel objected, and the court ruled that the question was not open to the jury.</p> <p>To this decision the defendant’s counsel excepted.</p> <p>When the counsel on both sides had summed up, the court charged the jury, “ That the only question for them to consider was, the value.of the property taken by Hoppock; that the defendant could not go into the question of ownership under the pleadings; that the question of value was for them to decide under the testimony, and that they must give the plaintiff a verdict for what they deemed the fair market value of the property.”</p> <p>To this charge the defendant’s counsel excepted.</p> <p>It was under this cliarge that the jury gave the verdict that has been stated.</p>

This was an action to recover the value of eleven bales of cotton, which the plaintiff alleged that he had purchased from the defendants, and they had neglected to deliver according to the terms of their contract. The cause was tried before Woodruff, J., and a jury, in May, 1856, and the jury found a verdict for the plaintiff for $294.92.

Motion on the part of the plaintiff for judgment on a verdict taken, subject to the opinion of the court at General Term upon r¿uestions of law. The action was brought to recover possession of a lot of ground in 28th street, in the city of New York, and was tried before Bosworth, J., and a jury, in June, 1856. The following are the material facts of the case, as they appear from the pleadings, and were established by the evidence on the trial.

Appeal frorn a judgment on the report of a referee in favor of the plaintiff. AH the material facts are stated in the opinion of the court.

Motion on the part of the plaintiff in each of these causes for judgment upon a verdict in his favor, which, by order of the Judge who tried the causes, was taken subject to the opinion of the court at General Term, and judgment in the mean time suspended. The verdict in the first case was for $13,000, in the second, for $3,000; the amount of each verdict was agreed on by the parties, and made subject to future adjustment.

The pleadings in the case are the following:— The complaint in this action of Charles Gr.

This action came before the court, at General Term, on a verdict taken, subject to the opinion of the court, for the plaintiffs. It was brought on a note alleged to have been made by the defendants, in their firm name of “ J. & A. Dearborn & Co.,” dated at the city of New York, the 28th day of December, 1853, payable four months after its date, to the order of D. 0.

<p>The corporation of the city of New York have fall authority, under their charter, to establish public markets and market-places in any location where, in their judgment, the interests or convenience of the public will be promoted by the measure.</p> <p>The owners of houses and lots upon a market-place hold in subordination to the right and duty of the corporation, to do whatever is necessary for the maintenance of the market.</p> <p>Such owners must, therefore, submit to whatever inconveniences and losses may result to them from a just exercise by the corporation of its powers and authority.</p> <p>When the rebuilding or repairing a market requires a temporary obstruction in the street or passage in the market-place, the public and adjacent owners must submit to the inconvenience in consideration of the paramount interests of the public, for whose use public markets are established and maintained.</p> <p>An adjacent owner may be entitled to maintain an action for damages against the corporation, where the obstruction, taking into view the nature of the work to be done, and the necessity of providing in the market-place suitable accommodations for those having the right of selling provisions in the market, is unnecessary and unreasonable, or when it creates a nuisance more noxious and offensive than is ordinarily incident to a market-place when kept in proper'order and condition for market purposes, or when the obstruction is continued beyond a reasonable time; but whether, upon all or any of these grounds, the plaintiff, in such an action, is entitled to recover, is a question of fact for the determination of the jury.</p> <p>Held, that upon the trial, these questions, upon the evidence that had been given, - ought to have been submitted to the jury, and that the Judge erred in giving to the jury a peremptory direction to render a verdict for the plaintiff for the damages claimed.</p> <p>Upon the trial, evidence was admitted to show the amount of the loss Sustained by the plaintiff in his business, as the keeper of a refectory, by proving the actual diminution of his receipts, and the increase of his expenses, during the continuance of an obstruction created, by authority of the defendants, in the street in front of Ms dwelling, and by connecting the loss thus resulting with the obstruction, as its necessary or probable cause, and the Judge instructed the jury that the plaintiff was entitled to recover as part of his damages the loss thus proved, and was not bound or limited to show what particular persons had withdrawn their custom from the plaintiff in consequence of the existence and continuance of the obstruction.</p> <p>Held, that had the plaintiff made out his title to recover at all, the evidence in question was properly admitted, and the instruction given to the jury entirely correct, the case belonging to a class in which the loss of profits is a proper measure of damages, and the evidence directly tending to show the extent of such loss.</p> <p>Hew trial; costs to abide event.</p>

<p>Motion on behalf of the plaintiff for a new trial, upon a case containing exceptions that were directed to be heard, in the first instance at General Term.</p> <p>The action was brought to recover damages for an alleged wrongful seizure and sale by the defendant, under order of his office as sheriff, of certain goods and merchandise belonging to the plaintiff.</p> <p>The complaint stated that the plaintiff on or about November 15th, 1854, became the owner of certain goods and merchandise, particularly described, by virtue of a mortgage upon the same, for $1000, bearing date on the same 15th day of November, 1854, and on that day, made, executed, and delivered to the plaintiff, by one Wm. B. Willis; that the same mortgage was duly filed, and that the said articles of merchandise were in the possession of, and situated in the store occupied by Wm. B. Willis, in Spring street, in the city of New York, until on or about the 14th day of December, 1854; that the sum of money aforesaid was payable, by the terms of the mortgage, to the plaintiff upon demand, and that prior to the said 14th day of December, its payment had been demanded by the plaintiff and refused; that the defendant on or about the 14th day of December, then being sheriff of the city and county of New York, by virtue and under color of his office, forcibly and wrongfully took possession of the said goods and merchandise, and wrongfully sold and disposed of the same, although forbidden by the plaintiff, and having notice at the time of the plaintiff’s title as mortgagee and owner, and that the said goods and merchandise, were of the value of $1000, for which sum, with interest and costs, the complaint demanded judgment.</p> <p>The answer of the defendant, after denying specifically the allegations of the complaint, sets up as a separate defence, that the goods in question were rightfully seized and sold by the defendant as sheriff, under and by virtue of certain executions against W. B. Willis; that the same were then in the possession of the said Willis, and were his property, or that he, Willis, had an interest therein, liable to a levy and sale on an execution against him.</p> <p>The case was tried upon the issues made by the pleadings before Slosson, J., and a jury, at a trial term in December, 1855.</p> <p>Upon the trial, the mortgage to the plaintiff was produced and read, and its execution, delivery, and consideration proved. The mortgage was conditioned to be void if the mortgagor should pay to the mortgagee, his executors, etc., on demand, the full sum of $1000; and the mortgage also contained a provision, that, in case default should be made in the payment of the said sum, it should be lawful for the mortgagee, his executors, etc., to take and carry away the goods and chattels mortgaged, and to sell and dispose of the same.</p> <p>The plaintiff then offered to prove by Wm. B. Willis, that the possession of the property contained in the mortgage was changed from the witness to the plaintiff, on the 15th of November, 1854, the day on which the mortgage was executed. The defendant’s counsel objected to this testimony on the ground that it was in conflict with the allegation in the complaint, that the property was in the possession of Wm. B. Willis until on or about the 14th day of December, 1854. The court excluded the evidence, and the plaintiff’s counsel excepted to the decision.</p> <p>The counsel for the plaintiff then offered to put to the witness several distinct questions, all of which were overruled by the court upon the ground that the -object in each was to show that there was a change of possession on the 15th-of November. In each case .the plaintiff’s counsel excepted to the ruling of the court. The answer of the witness, to the questions proposed, would have shown the nature and character of his own possession from the 15th of November until the 14th of December.</p> <p>The counsel for the plaintiff then moved to amend the complaint by inserting an allegation, under which the evidence excluded would have been plainly admissible. The motion was denied, and the counsel excepted. No further proof being offered on the part of the plaintiff, the defendant offered to prove the judgments and executions set forth in his answer, but the Judge held the proof to be unnecessary, and upon the motion of the defendant’s counsel, dismissed the complaint with costs, directing the exceptions to be heard in the first instance at General Term.</p>

This action comes before the court on exceptions taken by the defendants at the trial, and there ordered to be heard, in the first instance, at the General Term. John Wilmot and Company are the plaintiffs, and do business in the city of New York.

<p>These actions came before the court on an appeal by the defendant from the judgment rendered in each of them. They were tried before Mr. Justice Duer, without a jury, on the 26th of December, 1855, and the appeals were argued together, the facts in each case being substantially the same.</p> <p>The first action is on a note made by the defendant, dated the 15th of August, 1854, and payable to the order of Thomas Potter, two months from its date, for $1936.42; and indorsed by Potter to the plaintiffs. On the 7th of March, 1856, judgment was given for the plaintiffs for $2120.54 damages, and $136.28 costs.</p> <p>The second action is on a note of the same date as the other, made by Stebbins to order of Potter, payable three months from its date, for $2084.37, and indorsed by Potter to the plaintiffs. Judgment was given for the plaintiffs in this action, on the 7th of March, 1856, for $2270.39 damages, and $115.03 costs.</p> <p>The plaintiffs are a Massachusetts corporation, doing business at Nantucket, in that state, and have power to receive, hold, and own promissory notes, etc.</p> <p>On the 23d of August, 1854, the plaintiffs discounted for said Thomas Potter, of Nantucket, Massachusetts, his note for $8000, dated on that day, and payable ten days after date, to the order of William Mitchell, cashier at the Leather Manufacturers’ Bank in the city of Néw York.</p> <p>To secure the payment of his note, and to induce its discount, Potter deposited with the plaintiffs the following notes and acceptances as collateral securities, viz. t</p> <p>1 Note of E. W- (Gardner, due Sept. Í2W, 1854, for $ 924.00</p> <p>2 “ Horatio N. Stebbins, due Oct. 1518, “ 1936.42</p> <p>3 “ Samuel Woodward, due Oct. 2023, “ 1025.00</p> <p>4 “ Blow and March, due Nov. 14, “ 1665.67</p> <p>5 “ Horatio N. Stebbins, due Nov. 15ls, “ 2084.37</p> <p>6 “ Decker and Godine, due Nov. 24S7, “ 1320.58</p> <p>7 Acceptance of W. & F. W. Whittemore, due Jan. 1821,</p> <p>1855, for . . ...... 1500.00</p> <p>8 Acceptance of W. & F. W. Whittemore, due Jan. 22M</p> <p>1855, for........ 1500.00</p> <p>The total amount of these collaterals was, $11,956.04.</p> <p>The notes Nos. 2 and 5, are the notes on which these suits are brought.</p> <p>Potter failed to pay the note for $8000 at its maturity.</p> <p>On the 11th of Octover, 1854, an assignment of his property was made to John H. Shaw and Alanson Swain, by a commissioner of insolvency, under the insolvent laws of the state of Massachusetts, the said Potter being insolvent.</p> <p>All the above collaterals were paid on the days when they fell due, except Nos. 2 and 5, the notes of defendant, on which nothing has been paid.</p> <p>Defendant’s first note became due and was protested October 18,1854. On that day only $924 of the collaterals had come due, and only that sum had been paid on the $8000 note.</p> <p>Suit was brought on that note Nov. 3, 1854. On that day only $1949 of the collaterals had become due, in addition to the note in question, and only that sum had been paid on the $8000 note.</p> <p>Defendant’s second note came due and was protested Nov. 18, 1854. On that day only $3614.67 of the collaterals had become due, besides the notes of the defendant, and only that sum had been paid on the $8000 note.</p> <p>Suit was brought on the second note, Nov. 25, 1854. On that day only $3614.67 of the collaterals had become due, besides the notes of defendant, and only that sum had been paid on the $8000 note.</p> <p>On the 25th of Jan., 1855, after the last collateral was paid, there remained due to the plaintiffs the sum of $183.23 on the $8000 note, and that sum, with interest from that date, is still due thereon.</p> <p>The two notes in suit were given by defendant to Potter in exchange for two notes of the same date, tenor and amount respectively, made by Potter to the order of Stebbins, and payable at the Leather Manufacturers’ Bank in the city of New York.</p> <p>These notes were not paid by Potter, and when they became due Potter failed to take them up. Defendant was the holder and owner of them at the time of the commencement of these actions. One of these notes, viz., the $1936.42-100 note was indorsed by Stebbins, and he had it discounted, and received the money on it; and afterwards, on the day it became due, he paid the money and took it up, and has since been the holder of it. The other note, viz., the $2084.37-100 note, was not used in any way by defendant, but held by him ever since it was made.</p> <p>They were afterwards proved by the defendant before the Commissioners in Insolvency.</p> <p>The exchange of notes between defendant and Potter was made in the city of Few York.</p> <p>This statement of facts was admitted to be true, but the right to object to proof of any of such facts and to their relevancy was reserved.</p> <p>The defendant’s counsel objected to the relevancy of such of the foregoing facts as related to the insolvency of Thomas Potter, or to the assignment of his property by a commission of insolvency under the insolvent laws of Massachusetts, or to the two notes of Thomas Potter held by defendant, having been proved by the defendant before the commissioner in insolvency.</p> <p>The court overruled the objection, and the defendant’s counsel excepted.</p> <p>The said statement of facts and admission were there'received in evidence.</p> <p>The court made its decision on the 6th of March, 1856, and decided that, it appearing to the court as a conclusion of law upon the said facts, that if upon the said facts any equities arise in favor of the defendant, in respect to the note on which this suit is brought, such equities can only be considered in an action or proceeding in which the said Thomas Potter and his assignees are before the court; and it therefore appearing that the said facts constitute no defence to the plaintiffs’ suit, but that the plaintiffs, either in their own right, or as trustees of the said Thomas Potter, and persons claiming through him, are entitled to recover from the defendant the whole amount of the said note with interest.</p> <p>The court made an order, in each action, simultaneously with the decision thereon, that on perfecting judgment, an execution might be issued to collect the costs, but none should be issued to collect the damages short of thirty days.</p> <p>That if within the thirty days, the defendant should pay the costs and sheriff’s fees, if any, to the plaintiffs, and should also pay the damages with interest, into court, to abide its further order, and give notice thereof, the execution should be countermanded. If he failed to make such payment and give notice within the thirty days, execution might be issued forthwith for the whole judgment, and then the further provisions of the order should be of no effect.</p> <p>It then further provided, that if the moneys were paid and notice given within the thirty days, the plaintiffs, within thirty days thereafter, should servé on Potter, Shaw and Swain, in person, a copy of said order, and upon filing with the judgment record, proof of such service, by affidavit or admission, the plaintiffs should be discharged from all liability to Potter, Shaw and Swain, or to either of them, or to any person claiming under them for or on account of the notes, or either of them, or the proceeds thereof; that the defendant might apply to the court, at any Special Term, for the moneys so paid into court, upon petition, on proof of personal service of it, on Potter, Shaw and Swain, at least forty days before the time named for presenting it, if served out of the state, and at least twenty days if made in the state.</p> <p>That Potter, Shaw, and Swain, or either of them, or any one claiming under them, might apply to the court at Special Term for the moneys so paid into court, on petition and due proof of personal service thereof on the defendant at least twenty days before the time named for presenting it.</p> <p>The order in each action was in the same terms, except that the order in the first action permitted execution to be issued forthwith to recover not only the costs of that action but also $196.11, parcel of the damages, being the balance, with interest, due to the plaintiffs from Potter, over and above the amount realized from the other collaterals, on the security of which his note for $8000 had been discounted.</p> <p>Judgment was entered in each action on the 7th of March, 1856, absolute and unconditional in its terms, for the recovery of the amount of the note and interest, with the costs of suit.</p> <p>The defendant duly excepted to so much of the decision of the court, made in each action, as decides as conclusions of law:</p> <p>That if upon the facts, any equities arise in favor of the defendant in respect to the note on which this suit is brought, such equities can only be considered in an action or proceeding in which the said Thomas Potter and his assignees are before the court, and that said facts constitute no defence to the plaintiffs’ suit; but that the plaintiffs, either in their own right or as trustees of the said Thomas Potter, and persons claiming through him, are entitled to recover from the defendant the whole amount of said note with interest:</p> <p>That the president, directors, and company of the Nantucket Pacific Bank, the plaintiffs, do recover of Horatio N. Stebbins, the defendant, the amount of the note and interest, besides costs and disbursements.</p> <p>The defendant also excepted to so much of said decision, as found as facts, that on the 11th day of October, 1854, an assignment of his, (the said Thomas Potter,) property, was made to John H. Shaw and Alanson Swain, by a commissioner of insolvency, under the insolvent laws of the state of Massachusetts, the said Potter being insolvent; and that the two notes of Potter, held by defendant, were proved by the defendant before the commissioner in insolvency.</p> <p>The defendant also excepted: that any testimony relative to the insolvency of, or assignment by said Thomas Potter, or to the proof of said notes before the commissioner, was irrelevant and inadmissible.</p> <p>That the decision is contrary to law, and against the evidence.</p> <p>The answer of the defendant stated that the two notes in question, with others, were transferred by Potter to the plaintiffs to secure his indebtedness to them; that they had realized enough from the other collaterals to pay them in full; the making of notes by Potter in exchange for those in suit; that they are owned by the defendant and unpaid; that after the exchange of notes between Potter and the defendant, Potter was proceeded against as an insolvent, in Massachusetts; that Shaw and Swain had been appointed therein trustees of his estate, and he had assigned his property to them as such trustees; that these suits were in truth prosecuted for the benefit of said Shaw and Swain, and set up as a counter-claim in either action' the note made by Potter, and given to defendant in exchange for the note sued in such action, and prayed that the note made by Potter might be set-off against the corresponding note made by the defendant and delivered in exchange therefor, and that the note made by the defendant should be surrendered to him, and the complaint be dismissed, with costs.</p>

Appeal by the plaintiff from an order, at Special Term, denying a new trial, upon a case and exceptions. The action was by the plaintiff as indorsee, against the defendant, as the indorser of a promissory note for $1198.86, made by Young and Ward, and payable to his order. The cause was tried before Duer,' J., and a jury, in October, 1856, and upon the evidence given, and the motion of the defendant’s counsel, the Judge dismissed the complaint.

The cause was tried before Chief-Justice Oakley, and a jury. The plaintiffs having rested, the defendants moved for a dismissal of the complaint. Held: that the testimony, including what was offered and treated as proven, could not sustain the plaintiffs’ claim, and granted the motion to dismiss the action. To this the plaintiffs excepted. A motion for a new trial was heard at Special Term, before Mr. Justice Bosworth, and the same was denied, and final judgment was entered.

Motion, on the part of the plaintiffs, for judgment on a verdict in their favor, the questions of law arising on the trial having been directed to be heard, in the first instance, at the General Term. C The action was brought to recover damages from the defendants, as common carriers, for their delay in the transportation, upon their railroad, of cattle belonging to the plaintiffs, from Albany to Hew York. \ The answer denied all the material allegations in the complaint.

This action came before the court, at General Term, on a verdict for the plaintiff, subject to the opinion of the court at General Term, on the questions of law presented by exceptions taken at the trial. It was tried before Mr. Justice Slosson and a jury, on the 5th of December, 1855.

Appeal by defendants from a judgment for the plaintiff. The action was brought upon two promissory notes, each made by Caffee and Cutter, and indorsed by Daniel T. Young and Henry Laverty; the first note was for $1698.40, was dated the 4th of April, 1853, and payable six months after date; the second, for $1206, was dated the 9th of July, 1853, and payable four months after date; the suit was originally commenced against Laverty, and after his death, Mrs. Catlett, as his…

Appeal by plaintiffs from, a judgment at Special Term, sustaining a demurrer to the complaint.

This action comes before the General Term on an appeal by the plaintiifs from a judgment dismissing their complaint. It was tried before Mr. Justice Hoffman, without a jury, in October, 1854. It was brought for the purpose of rescinding a contract alleged to have been made between the plaintiffs and the defendant.

The facts of the case, and the manner in which the questions decided arose, are briefly, but fully, stated in the opinion of the court. The action was tried in Hovember,' 1856, before GhiefJustice Oakley and a jury.

This action was tried in February, 1856, before Mr. Justice Woodruff, and a jury. The plaintiff recovered a verdict, on which judgment was entered, and from that judgment the defendants appealed to the General Term. The facts are fully stated in the opinion of the court.

<p>The complaint charges that on or about the 14th of April, 1852, the defendant forcibly and wrongfully took from the possession of the plaintiff, certain goods and chattels, of the value of $500, and claims damages to the amount of $1000.</p> <p>The answer puts in issue the allegations of the complaint. It then justifies the taking under an attachment, in an action in the Supreme Court, brought by the present defendant against Brooks & Hopkins, who, as the defendant alleges, owned the property. The attachment was issued on the 18th of April, 1852, and the goods were seized upon it, on the 14th, by direction of the defendant.</p> <p>On the 80th of April, 1856, the defendant was allowed to set up by supplemental answer, that the trespass complained of was committed, if at all, by the defendant and John F. Carr, and Mitford B. Burnett jointly, and not otherwise; and that, on the 31st of August, 1855, the plaintiff, by a sealed release, released Carr & Burnet from all claims, demands, and causes of action whatever.</p> <p>The action was referred; the referee found in favor of the plaintiff, and from the judgment entered on his report the defendant appeals.</p> <p>The facts are, in brief, these:</p> <p>1. Johnson bought the goods in question on the 10th of April, 1852, of Brooks & Hopkins.</p> <p>2. On the 14th of April, 1852, they were taken from the plaintiff’s possession, by the sheriff, on an attachment in favor of Hop-pock against Brooks & Hopkins, and were so taken by direction of Hoppock.</p> <p>8. Three other attachments, in suits against Brooks & Hopkins, were received by the sheriff before he seized and removed the goods: one in favor of Thomas Jackson; one in favor of Carr & Burnett, and one in favor of S. Y. Moers. They were received in the order in which the plaintiffs therein are here named.</p> <p>Carr & Burnett are not shown to have given any direction to the sheriff, as to levying the attachment in their favor on this property.</p> <p>Judgment was obtained by Hoppock on the 24th of June, 1852, in his action against Brooks & Hopkins, and execution was issued on it on the 25th, and delivered to the sheriff on the 26th.</p> <p>Each of the other attaching creditors obtained judgments in their actions, and issued executions thereon to the sheriff, who received them at the same time he received that in favor of Hop-pock, and marked them as received in the order in which the attachments had been issued.</p> <p>, This action was commenced on, or about the 1st of July, 1852, after all the executions had been delivered to the sheriff.</p> <p>After all the executions had been received, the sheriff refused to sell under either of them, unless the plaintiff in each indemnified him. Bonds of indemnity, in each action, were given, and were marked by the sheriff as having been received in the order in which the attachments were received. They are all dated the 6th of July, 1852, except the one in the action of Carr & Burnett, and that is dated on the 7th. Carr & Burnett, besides signing the bond in their own action, signed a bond as sureties for Moers, in his action. The bond, in each case, indemnified the sheriff against the consequences of levying and making sale “under and by virtue of the execution.”</p> <p>" The sheriff sold the property, and the proceeds paid Hoppock’s execution in full, and left $123.18, to be applied, and which was applied, on Jackson’s execution.</p> <p>There was no interference by Carr & Burnett, in any stage of the proceedings, except signing these two indemnity bonds.</p> <p>It further appeared that the testator of the present plaintiff brought an action against Carr & Burnett, in which he, plaintiff, declared in the same form as in this, and for taking the same property. Issue was joined in it. On the 31st of August, 1855, the plaintiff having qualified as executor of Johnson, executed to Carr & Burnett a release, general in its terms, of all causes of action whatever, for the sum of $50, as the release stated. It did not, in express terms, release the present cause of action.</p> <p>The suit against Carr & Burnett was discontinued, and the consent for the discontinuance of it is dated the 7tn of Hovember, 1855.</p> <p>The referee reported that Hoppock took the property on the 14th of April, 1852, its then value, and gave judgment, in favor of the plaintiff, for that value, with interest from the time of the taking. The defendant appeals. The main point made is, that, under the facts found, Hoppock, and Carr & Burnett, were joint trespassers, and that the release of Carr & Burnett, two of such trespassers, is a bar to an action against Hoppock, their co-trespasser.</p>

Motion on the part of the plaintiff for judgment, upon a verdict taken subject to the opinion of the court at General Term. The cause was tried before Woodruff, J., and a jury, in October, 1856. The following is a statement of the pleadings and of the facts proved upon the trial.

Appeal, by plaintiff, from a judgment entered on the report of a referee. The facts, and the single question of law arising thereon, are stated in the opinion of the court.

The nature of the action, the terms of the complaint, and the questions of law raised by the demurrer, are fully stated in the opinion of the court.

This action comes before the court on questions of law arising at the trial, being exceptions taken by the defendants to the charge of the Judge. It was tried before Chief-Justice Oakley and a jury, in November, 1856, when the plaintiff recovered a verdict for $175. The action is brought against the defendants as common carriers, to recover damages for an alleged grievance in carrying him over the wrong road, and wrongfully and forcibly ejecting him from the cars.

This action comes before the court upon an appeal by the plaintiff from a judgment dismissing his complaint. One Bogart, being owner of the unexpired term of certain leasehold premises described in the complaint, executed two several mortgages of such premises; one dated May, 1851, to Jacob Christie, to secure the payment of $2000 and interest; the other, dated June 10, 1852, to J. B. Dunham and E. Scudder, to secure the payment of the further sum of $2000 and interest.

<p>In an action to recover the possession of real estate, a complaint which states that, on a day named, a person, whose, name is given, was in possession and seized thereof in his own right in fee, and died so seized and possessed; that the plaintiffs are his only heirs at law, and, as such, are seized in fee and entitled to the possession; that the defendant is wrongfully in possession, claiming title, and refuses to give up possession, though requested so to do, states facts constituting a cause of action.</p> <p>The defendants, by their answer, and by the evidence given at the trial, claiming a right to the possession under an unexpired lease, executed by the plaintiffs’ ancestor, in his life-time, held, that it was competent for the plaintiff to prove in reply any facts which put an end to the lease, or gave a right to the plaintiffs to require the possession to be given up to them, and the defendants’ possession to be wrongful.</p>

<p>In an action upon a promissory note, which is set forth in the complaint the word “ signed” prefixed to the signature of the maker, is a sufficient averment that . the note was made by him, and the word "indorsed” prefixed to the signature of the payee is a sufficient averment of bis indorsement. Where the action is against an individual as the maker of the note, and it is signed in the name of a partnership, and there is no averment that it was so signed by the defendant, the complaint is bad upon demurrur, as not showing upon its face an individual liability.</p> <p>As against an indorser, an averment in the complaint that the note was "protested for non-payment," is not equivalent to an averment that the note was presented to the maker and payment refused; since a protest 1003-, in fact, have been made, and 3’et the note not have been presented for pa3-ment to the maker. The complaint, therefore, as not showing the facts neeessaiy to be proved to charge an indorser, is bad upon demurrer.</p> <p>Judgment for defendants affirmed.</p>

<p>Prior and up to the 23d of September 1,1850, the firm of Evans, Davis and Lownd, owed plaintiff $14,069.38, for moneys advanced to it, and for which he held their notes. That firm dissolved that day, and Evans and Davis formed a new firm with Dodge, under the name of Davis, Evans and Dodge. Plaintiff gave up the notes of the old firm and took two new notes of $7500 each, dated September 23, 1850, payable “ on demand after date,” one of which was signed by Evans, and the other by Dav.is, of the firm of Evans, Davis and Lownd.</p> <p>Plaintiff signed the partnership agreement of Davis, Evans and Dodge; that stated, that the amonnt of $15,000 due to the plaintiff from the old firm “is to remain in the new concern during the continuance of the copartnership,” he receiving interest at the rate of seven per cent, per annum. Under same date, Davis, Evans and Dodge and the plaintiff, signed a paper stating they had received from plaintiff $15,000, “ being the amount contributed by him as special partner to the concern of Davis, Evans and Dodge.” Davis, Evans and plaintiff, signed another paper of the same date, stating that they had formed a limited partnership under the name of Davis, Evans and Dodge, the nature of its business, the residence of the partners, that plaintiff is the special partner, and as such has contributed $15,000 in cash, and that Davis, Evans and Dodge, were the general partners. Enough was not done to create a limited partnership. The new firm failed and was dissolved within a year, and before this suit was brought, owing some $30,000 more than it could pay. This suit is brought on the note for $7500 given by Davis to plaintiff when the new firm was formed. On that note, and also on the other note for a like sum, given by Evans, there is indorsed: “ This note is given as security to Levi Brown, (the plaintiff,) for one half of the $15,000 advanced to Davis, Evans and Dodge. Egbert Davis.”</p> <p>Held, 1. The plaintiff never discharged Davis and Evans from liability for the amount the firm of Davis, Evans and Lownd owed him, but took the note of each for half of that sum.</p> <p>2. Though that sum was continued, in the assets which represented it, as a loan to the film of Davis, Evans and Dodge, it was not placed, as between themselves, at the risk of its business, h'or lent on an agreement to look solely to the new firm for payment.</p> <p>3. The note in suit became due, on demand of payment, made after the new firm had actually dissolved, and plaintiff could sue on the note without having first sued and exhausted his remedies by action against the new firm.</p> <p>4. The evidence given is insufficient to establish an intent of Davis, Evans and Dodge, and of the plaintiff, by the arrangement in respect to a limited partnership, to defraud the public, or that they knew their acts were invalid, or that they were done with an improper motive.</p> <p>6. The plaintiff is entitled to a judgment on the verdict. Permitting such a recovery will not withdraw from the legal or equitable process of the courts any property which should be appropriated to the creditors of the new firm, though held tó be composed of Davis, Evans and Dodge, and the plaintiff, as general partners. A judgment by such creditors against the four, and appropriate ulterior proceedings, will reach all the individual property of each, as well as all the effects of the new firm.</p>

<p>This action was tried before Mr. Justice Woodruff and a jury, in February, 1856. The complaint was dismissed and the decision excepted to. The question of law arising on that exception, and those arising on exceptions taken during the trial, were directed by the court to be heard, in the first instance, at the General Term.</p> <p>The complaint states, that plaintiff and defendants are merchants in the city of New York, the defendants comprising'the firm of R. E. Crane & Co.</p> <p>On and before the 1st of September, 1852, Nathan Meyer owed the plaintiff §1131.63, and owning ready-made clothing and unmanufactured articles, he agreed with the defendants, about that time, to sell and deliver the stock to them, at prices to be thereafter agreed upon, and they agreed to pay therefor as follows, to wit:</p> <p>1. To pay to plaintiff §531.63 of the §1131.63.</p> <p>2. To pay themselves $1263.37, the amount due to them from Meyer.</p> <p>3. To account to Meyer for the balance. Plaintiff was notified of, and acceded to this arrangement, of which the defendants had notice.</p> <p>That about the 9th of October, 1852, the stock of goods was delivered to the defendants in pursuance of this contract, at prices agreed upon amounting to §2800. That after satisfying the $1268.37 due to the defendants, and paying to the plaintiff the §531.63, there was a balance of $1000 in defendants’ hands, and Meyer’s claim for that had been assigned to the plaintiff"; that although required to do so, they had not paid that nor the $581.63, and it prayed judgment for §1531.63, with interest from the 9th of October, 1852, besides costs of the action.</p> <p>The answer admitted a sale to the defendants by Meyer, on or about the 9th of October, 1852, but denied that it was under any such agreement as the complaint states, and that any such agreement was made. It averred that Meyer, instead of owing the defendants only $1268.37, in fact, owed them $3040.18; that of this $1407.47 was due to Crane, individually, and that certain of the stock was accepted and transferred to him in gross in satisfaction of that debt; that he also owed R. E. Crane & Co. $1632.71, and that certain other goods were transferred by Meyer to them, and by them accepted in gross, in satisfaction therefor, and that in each case a bill of sale was executed and delivered by Meyer. On the trial, the indebtedness of Meyer to the plaintiff, in the sum of $1131.53, was proved by a witness other than Meyer. Meyer was then sworn in behalf of the plaintiff, and testified to the same fact, and that he sold his stock of goods to Crane and Taylor about September, 1852. He said, “ the sale was in writing ; I made out an invoice of said goods and gave the defendants a copy of it.”</p> <p>The plaintiff’s counsel requested defendants’ counsel to product it, which he did, and plaintiff’s counsel then read it in evidence.</p> <p>It was a formal bill of sale, dated October 9, 1852, from Meyer to Crane and Taylor, for the expressed consideration of §1632.71, and sold and conveyed absolutely the goods described in the schedule annexed to it. The schedule contained a list of goods, which, at the prices affixed to them, amounted in the aggregate to $2814.07. At the end of the schedule was a receipt in these words, viz.:</p> <p>“I do hereby agree and consent to sell to Rufus E. Crane & Co. this stock of goods, of which this is the invoice, for my indebtedness to said Rufus E. Crane & Co.” “ N. Meyeb.”</p> <p>This receipt or writing had no date. The witness, in relation to this invoice or schedule, further testified as follows:</p> <p>“ The goods I have spoken of, which I purchased of Crane & Taylor, the defendants, I returned to them, as I bought them, and they accepted them, and they are not contained in this invoice or bill of parcels.”</p> <p>Question by plaintiff’s counsel. “ Was any oral agreement made between the plaintiff, Crane & Taylor, and yourself, as to the sale and transfer of your goods to Crane & Taylor, before any bill was made out, and how the consideration was to be paid, and if so, what was the arrangement?” This question was objected to by the counsel for the defendants, and the objection sustained by the court. To which ruling of the court the plaintiff’s counsel then and there duly excepted.</p> <p>“ Did you, after this paper was executed on the 9th day of October, 1852, owe Crane & Taylor any thing?” Objected to by the defendants’ counsel, and then withdrawn by the counsel for the plaintiff.</p> <p>“ Before any papers were delivered to Crane & Taylor was any arrangement made by which you sold them your stock of goods and they agreed to pay Mr. Earle any sum of money?” The defendants’ counsel objected to the question,'on the ground, among others, that the arrangement made was in writing. The court sustained the objection. To which ruling of the court the plaintiff’s counsel then and there duly excepted.</p> <p>“ You sold to Crane & Taylor your stock in trade?” “Yes.”</p> <p>“At what price?” The defendants’ counsel objected to the question. The court sustained the objection. To which ruling of the court the plaintiff’s counsel then and there duly excepted.</p> <p>“ Were the goods put at cost, above cost, or below cost?” Similar objection, ruling and exception.</p> <p>“ How was the consideration to be paid by Crane & Taylor on that sale?” Similar objection, ruling and exception as above.</p> <p>“Were they or were they not sold before the 9th of October, 1852, and delivered on an agreement between the plaintiff and defendants and youi’self, that they (defendants) were to pay the plaintiff" any, and if so what Sum of money ?” Similar objection, ruling and exception as above.</p> <p>“ On the 9th of October, 1852, did you owe the firm of Crane & Taylor any thing, and if so what?” Similar objection, ruling and exception as above.</p> <p>“ Did you, or did you not, return to Crane & Taylor, and they accept the goods bought by you of them, and rescind the contract of indebtedness to them after the bill of parcels of the 9th of October, 1852, by which all your indebtedness to them was can-celled?” Similar objection, ruling and exception as above.</p> <p>“ Does this bill of parcels or invoice contain the goods that you bought of Crane & Taylor, and which you subsequently returned to them?” “No, sir. There is not a single article there I returned to them, and they rescinded the contract.”</p> <p>“ Had Crane & Taylor any other indebtedness against you after the 9th of October, 1852, after returning those goods ?” Question objected to by the defendants’ counsel on the ground, among others, that the complaint itself admits an indebtedness at the time of the transfer.</p> <p>The plaintiff’s counsel now moved the court to be permitted to amend the complaint by striking out the name of “ Co.” after the word Crane.</p> <p>The defendants’ counsel objecting to the motion, the court sustained the objection, and denied the motion to amend.</p> <p>The plaintiff’s counsel here introduced and gave in evidence the following transfer from the witness to the plaintiff.</p> <p>“ Whereas, Rufus E. Crane & Co., heretofore purchased from me a quantity of merchandise, consisting of ready-made woollen clothing, etc., for the sum of $2,900, or thereabouts; and whereas, the said Crane & Co. did then and there agree to pay for the same in manner following, viz.: First, to pay to John E. Earle, of the city of New "York, $531.63; secondly, to deduct the sum of about $1,400 for their own claim, or debt; and lastly, to pay the remaining balance to me, or my order, and which said balance "would amount to about $968.</p> <p>“Now know ye that I, Nathan Meyer, in consideration of one dollar to me, in hand paid by John E. Earle, and for divers other good considerations, do hereby assign and set over to the said Earle the said remaining balance. First, to pay himself the sum of about $600 due to him from N. & M. Meyer, (independent of the sum of $531.63,) and to pay over to me, or my assigns, the residue of said remaining sum, after the payment of the aforesaid sum of money. “N. Meyer, [l. s.]</p> <p>“Dated, New York, March 7, 1853.”</p> <p>And also another transfer to Rachael Smith, as follows:</p> <p>“ In consideration of one dollar to me, in hand paid, and for divers other considerations, I hereby assign and set over to Rachael Smith, of the city of New York, any and every sum of money that shall or may be coming to me from John E. Earle, of the said city, by reason of a certain assignment made and executed to him, by me, on the 7th of March instant, of a claim or demand of mine against Rufus E. Crane & Co:, of the city of New York, more particularly mentioned and described in said referred to assignment. This assignment is intended to embrace only what shall be coming to me after the payment of the amount due said Earle, as provided therein. “ N. Meyer, [l. s.]</p> <p>“ Dated, March 8, 1853.”</p> <p>The defendants’ counsel thereupon moved the court to dismiss the plaintiffs’ complaint.</p> <p>The plaintiff’s counsel opposed the motion, but the court sustained the same, and dismissed the complaint, with leave to the plaintiff to move the court, if so advised, to amend the complaint, and on such amendment being granted, to set aside dismissal: and to the decision of the court, in so dismissing the complaint, the plaintiff’s counsel then and there duly excepted.</p> <p>And inasmuch as the said several matters so given in evidence, and the objections, offers, decisions, refusals, and exceptions, on the part of the plaintiff, do not appear by the record of the trial aforesaid, the counsel for the plaintiff did thereupon request his honor, the said Justice, to sign this case upon exceptions, containing the matters aforesaid, according to the statute in such case made and provided, which is accordingly done, the said 20th day of February, 1856.</p> <p>It was further ordered, that the exceptions taken be heard, in the first instance, at the General Term.</p>

<p>The plaintiff was an assignee, for value, of a certificate for twenty shares of the capital stock of the defendant’s bank. The certificate was in the name of one Jenkins, and the shares stood in his name upon the books of the bank. The plaintiff demanded a transfer of the shares to himself, and a new certificate in his own name therefor. The president of the association refused to make the transfer, alledging that Jenkins’ original subscription for the shares was unpaid, and the plaintiff brought this action to recover damages for such refusal.</p> <p>Held, that the plaintiff, as an assignee, bad no other rights than would have belonged to Jenkins had he not parted with his certifícale, and that by the true construction of section 19 in the general banking act, (1888,) and of the provisions in the bank’s articles of association, he had no right to demand a transfer of the shares without paying to the bank the sum then due from Jenkins thereon.</p> <p>Held, therefore, that the refusal of the president to make the transfer demanded was justifiable, and furnished no ground of action to the plaintiff for the recovery of damages.</p> <p>Judgment ordered for the defendants, with cost».</p>

<p>The law presumes that the acceptor of a bill of exchange has funds of the drawer in his hands, and in an action against the acceptor, the burden of disproving the presumption rests upon him. When the presumption is not repelled, the drawer of the bill stands in the same relation to the acceptor as the indorser of a promissory note to the maker. The acceptor is the principal debtor, the drawer his surety merely.</p> <p>In such a case, the extension to the drawer of the time of payment does not operate to discharge the acceptor.</p> <p>The question whether a negotiable or other security was received by the holder of the bill as a payment, or merely as a collateral, when there is a conflict of evidence, is for the determination of the jury, and their verdict, when it cannot be set aside as contrary to evidence, is conclusive. When a promissory note, received by the holder of the bill as a collateral security, is not that of a third party, but of one already liable on the bill, it cannot be treated as a pledge, and hence the rules of law relative to the disposition of a pledge are not applicable,</p>

<p>When the drawer of a cheek stops its payment at the bank on which it is drawn, he cannot object to a recovery of its amount by the holder, on the ground that notice of non-payment was not given to him.</p> <p>Where in such a case the plaintiff averred in his complaint that actual notice of non-payment was given, and the defendant, in his answer, averred that the defendant had stopped payment of the checks, and proof thereof was given on the trial without objection, the court will not entertain the objection that the plaintiff, instead of averring in his complaint notice of non-payment, should have set forth the facts excusing such notice.</p> <p>Under such circumstances, the ease is at most one of mere variance between the complaint and the proof, and as the answer itself shows that the defendants could not have been misled, the variance must be disregarded.</p> <p>When the plaintiff, in the complaint, avers facts amounting to an excuse for not giving notice of non-payment, and proves such facts on the trial, he is entitled to recover, although he has also averred notice and gives no proof thereof. This latter averment may, and ought to be regarded as surplusage.</p> <p>The rejection of evidence, which, although in its nature competent to establish the fact proposed to be proved, if wholly irrelevant to the issues made by the pleadings, is not a ground of exception.</p> <p>Where a plaintiff shows a sufficient legal title in himself to the cause of action in controversy, the non-joinder of a third person as plaintiff who has an interest in the recovery, is waived when not set up by answer or demurrer.</p> <p>When a.-witness is cross-examined as to matters collateral to the issues, the cross-examining party is bound by his answers, and is not allowed to contradict in order to discredit him.</p> <p>Negotiable paper lent or advanced by the maker for the accommodation of the borrower, but without restriction as to its use, is good in the hands of a transferree, though received in payment of a pre-existing debt.</p> <p>A check, payable on demand, advanced to a third person, in consideration of his agreement to do or perform some act beneficial to the maker at a future day, is not an accommodation check, nor without consideration, and it may be collected by the transferree without proof on his part that he paid value therefor, and without proof that such agreement was performed.</p>

Case upon a verdict in favor of the plaintiffs, subject to the opinion of the court at General Term, to be heard there in the first instance, with liberty to enter a non-suit if the court should be so advised, and with liberty to turn the case into a bill of exceptions. The following are the material facts of the case, as established by the evidence on the trial and not disputed:— Messrs.

Motion on the part of the plaintiffs for judgment upon a verdict in their favor, judgment having been suspended by order of the court. The action was brought to recover the possession or value of certain merchandise, in relation to which the plaintiffs claimed to have duly exercised their right of stoppage as vendors, the vendees having become insolvent before any delivery of the goods. The answer wholly denied the title of the plaintiffs.

<p>Although, as a general rule, “ ordinary prudence” is all that can be exacted from a railroad company in respect to passengers on the same road, yet the rule is not to be understood as meaning that only the same degree of care is to be required in all cases.</p> <p>The only safe interpretation of the rule is, that the company is bound to use a degree of care and vigilance, to prevent accidents and injury to others, which is proportioned to the dangerous character of its business, and of the mode and means of conducting it.</p> <p>The true rule may, therefore, be stated in these words: The degree of vigilance which the law exacts in its requirement of ordinary care, varies with the probable consequences of negligence, and also with the command of means to avoid injuring others possessed by the person on whom the obligation is imposed.</p> <p>Held, that applying this rule to the facts in evidence before him, the Judge, upon the trial, properly instructed the jury that, 'considering the nature of the business in which the defendants were engaged, and the hazards attending the running of cars in the streets of the city, particularly on a dark night, they were bound to use the utmost care and diligence, and for the purpose of avoiding accidents endangering life, were bound to use all the means and measures of precaution that the highest prudence would suggest, and which it was in their power to employ, and that if the use of bells and lights upon the cars was a measure by which disastrous accidents would probably be avoided, the omission to use them, if proved to the satisfaction of the jury, was culpable negligence, and it was for the jury to say whether to this negligence the fatal accident which had given rise to the action might not justly be imputed.</p> <p>Held, therefore, that applying to the defendants the true rule of ordinary care, the Judge, under the circumstances detailed in the case, could not have required from them a less degree of diligence and prudence than that which he laid down as the measure of their obligation.</p> <p>The defendants’ counsel insisted that the Judge erred in leaving the jury to determine whether the defendants should have carried lights or bells instead of determining, as a question of law, whether such use of lights or hells was exacted from the defendants in the exercise of ordinary care.</p> <p>Held, that there was no error on the part of the Judge, that he did determine the question of law, namely, that the prudence exacted of the defendants was'that which, in view of the hazardous character of their business, would tend to diminish the danger of accidents, and that he properly left to the jury, as a question of fact, whether the use of lights or bells was a measure of that character.</p> <p>The Judge charged the jury, that the deceased person, whose death was attributed to the negligence of the defendants, was hound to exercise only ordinary care; ' and he defined that care as the care and foresight which men of ordinary prudence are accustomed to employ, and which, placed in like circumstances, they probably would have employed.</p> <p>Held, that there was no error in this instruction to the jury.</p> <p>Held, that the Judge properly refused to charge the jury, that the manner in which the deceased was found on the track of the railway, without any explanation as to how he got there, was presumptive evidence of negligence on his part.</p> <p>It appeared on the trial that the deceased was a young man, between the ages of thirty and forty, and in good health, and the Judge charged the jury, that the probable continuance of his life was at least twenty years.</p> <p>Held, that the expectation of life is a known scientific fact, to which a Judge, upon the trial of a cause, has the same right to advert as to a known historical fact, and as the expectation of life between the ages of thirty and forty is known to exceed thirty 'years, there was no error in the charge of the Judge.</p> <p>Judgment for plaintiff affirmed, with costs.</p>

<p>When the defendant, in an action to recover personal property, excepts to the sureties in the plaintiff’s undertaking, if one fails to justify, and for that reason a new surety is substituted, a new undertaking must be executed. The original undertaking cannot be altered by inserting therein the name of the new surety, and by the latter signing it, without the consent of the other surety, and of those for whose benefit or protection it is required to be given.</p> <p>When the original undertaking was altered, after notice of exception to the sureties therein, on one of them failing to justify, by inserting the name of a new surety, who signed it, and made an affidavit of justification before one of defendants’ attorneys, and in the presence of the attorneys of both parties, at the time and place for which notice of such justification was given, and the attorneys then separated without obtaining an approval of the sureties by a Judge of the court, and plaintiff's attorney, subsequently, obtained ex parte, an approval of the undertaking, as thus altered, that approval, on motion, was set aside, as being irregular, but the plaintiff was permitted to give a new undertaking, with sureties who should justify on due notice. The fact that the substituted surety made an affidavit of justification, under the circumstances stated, before one of defendants’ attorneys, was held not to be a waiver of the defendants’ right to object to the insufficiency of the undertaking, or to the irregularity of the ex parte allowance, the sufficiency of the undertaking not having been assented to by defendants’ attorneys in writing, nor proved to have been distinctly assented to orally.</p>

The defendant, Edgerton, who alone answered, moved in October, 1856, to set aside an inquest taken on the 27th of the previous June. The taking of it was not only known at the time, but the defendant then moved for a postponement of the trial, which motion was denied. The present motion was not made until after an execution against property had been issued and returned unsatisfied, nor until after some six weeks subsequent to his arrest upon an execution against the person.

<p>These points were decided, and the opinion of the court at General Term, as delivered by Hoffman, J., is reported in 14 How. Pr. R. 67.*</p>

<p>Bosworth, J., so decided in this case, which is fully reported in 13 How. Pr. R. 296</p>

<p>Although a debt was fraudulently contracted, or an obligation was fraudulently incurred by a defendant, yet if, subsequently thereto, the plaintiff, with full knowledge of the fraud, settles the original debt or obligation, and enters into a new contract with the defendant, upon different terms, and upon additional consideration, in an action upon the new contract, the defendant cannot be held to bail merely because the original debt or obligation, was fraudulently contracted or incurred. In such a case, if the debt for the recovery of which, or the obligation on which the action is brought, was not fraudulently contracted or incurred, the defendant cannot be held to bail. The order, refusing to vacate an order of arrest, on which defendant was held to bail in the sum of $45,000, reversed. (13 How. Pr. R. 366.)</p>

<p>He is not entitled to a term fee for a term commencing subsequent to the settlement, although the action had been noticed for such term, and a note of issue filed, and a calendar had been made for such term, containing such action. (Reported in 13 How. Pr. R. 416.)</p>

<p>This action comes before the court, on appeal by the defen aant, from an order made by Ch. J. Oakley, overruling a demurrer to the plaintiff’s amended complaint. It was in the words following, viz:&emdash;</p> <p>The amended complaint of the above-named plaintiff, shows to the court&emdash;</p> <p>That on the 3d day of April, 1854, he was in the actual possession of the certificates of 350 shares of the stock of the Pennsylvania and Lehigh Zinc Company.</p> <p>That on the 3d day of April, 1854, one George R. Hasewell entered into a contract with the said plaintiff in the words and figures following, that is to say&emdash;</p> <p>“Penna. Zinc.</p> <p>“350 shares, 3f B 60. “Hew York, April 3d, 1854.</p> <p>“I have purchased of Theo. S. Draper, 350 shares of the stock of the Penna. and Lehigh Zinc Co., at $3f per share, payable and deliverable buyer’s option in sixty days, with interest at the rate of six per cent, per annum. Geo. R. Hasewell.”</p> <p>That before entering into the said contract with the said Hasewell, and as an express condition thereof, the said plaintiff required from the defendant above-named., his guaranty of the performance by the said Hasewell of the different stipulations on the part of the said Hasewell contained therein.</p> <p>That therefore at the time of the making of the said contract above set forth, the said defendant indorsed thereupon his certain guaranty, in the words and figures following, viz.:</p> <p>“ I guarantee the within contract. Geo. M. Snow.”</p> <p>That thereupon in consideration of the giving of the said guar. anty by the said defendant as aforesaid, and not otherwise, and within the time limited therefor in the said contract, the said plaintiff delivered to the said Hasewell the aforesaid 350 shares of the said stock.</p> <p>That neither the said Hasewell, nor the said defendant, have ever paid the said plaintiff therefor, as provided in the said contract, although often requested by the said plaintiff so to do.</p> <p>Wherefore the said plaintiff demands judgment against the said defendant, for the sum of $1181.25, with interest thereon, from the 3d day of June, 1854, besides the costs of this action.</p> <p>The defendant demurred to the amended complaint, because it does not state facts sufficient to constitute a cause of action against the said defendant, and specified the following as grounds of objection:—</p> <p>1st. That the said complaint sets forth as the foundation of the action against the defendant a collateral agreement, or special promise in writing of the defendant to answer for the debt, default, or miscarriage of another person, (one George R. Hasewell,) which agreement or promise in writing has, as appears by the said complaint, no consideration expressed therein.</p> <p>2d. That no fact, or facts, are stated in the said complaint showing any breach of the contract of the said George R. Hasewell set. forth in the said complaint, or any loss or damage thereby suffered, for which the defendant, under his collateral agreement, set forth in said complaint, is bound to answer, or is legally responsible.</p> <p>An order was entered overruling the demurrer, and from that order the defendant appealed to the General Term.</p>

<p>The Code has left the compensation of attorney and counsel to the operation of any agreement express or implied. Counsel can have the same remedy for services rendered, which they possessed before its passage.</p>

<p>Ho order will be made on the mere motion of a receiver appointed under proceedings supplementary to an execution, that he may sell the estate of the judgment-debtor, when such estate consists only of the debtor’s interest as cestui que trust under a will by which the testator conveys his property to executors in trust, with directions to convert it into money, and divide the money into a eertain number of equal shares, and invest one of said shares and apply the interest and income thereof to the judgment-debtor daring his natural life, and upon his death distribute the principal with all unappropriated income to and among the said judgmeut-debtore,then living lawful issue.</p> <p>If the judgment-creditors, or such receiver as representing them, can derive any benefit from the provisions of such a will, it must be by a proceeding to which the executor is a part)’, and in which the benefit sought must be derived, nof from a sale, but from an order in the nature of a sequestration of such portion of the annual income of the fund in question, as is not required for the suitable support and maintenance of the judgment-debtor, taking into view his condition in life, his health and other circumstances, and the condition of his family if any he have.</p> <p>The interest of the judgment-debtor is inalienable. If there was already an accumulation of income in the hands of the executors, (which there is not,) so much of it might, probably, be reached by an order in this proceeding, or by a proceeding under section 294 of the Code, as was not necessary for the proper support and maintenance of the judgment-debtor, taking luto view the considerations above suggested.</p> <p>But a possible or probable future surplus cannot be anticipated and reached by a proceeding instituted for that purpose, before it has accrued or come into existence But this rule does not prevent a court, on a complaint properly framed, from giving such directions as will secure to a judgment-creditor such portion of the surplus as may remain after appropriating sufficient for the proper support of the debtor, to be ascertained and fixed, upon a reference ordered for that purpose. Motion denied.</p>

<p>A lot of land, subject to a lease containing a covenant of renewal, at a rent to be agreed upon by the parties, or fixed by arbitration, is not an “ unencumbered” lot, and when sold to the tenant holding the covenant such lot cannot be deemed to have been sold as an '* unencumbered'’ lot.</p>

Each action comes before the court on an appeal by the defendant from an order opening a judgment by default, and allowing the defendant to answer, the defendant being dissatisfied with the terms imposed as a condition to his being permitted to answer, he being precluded by such terms from setting up the defence of usury.

This action came before the court, on an appeal oy the plaintiff from an order made by Mr. Justice Hoffman, sustaining a demurrer to the complaint. The complaint states that the plaintiff, and the defendant, and nine others, were harbor-masters of the port of Hew York, from the 9th of April, 1850, until the 9th of April, 1855, duly appointed as such, under a statute of the state of Hew York, passed March 16, 1850.

<p>The opinion in this case gives an idea of the terms and contents of the petition sufficiently accurate to make it unnecessary to state them more particularly.</p>