Volume 6 — Lansing's New York Reports

This was an appeal from an order of the surrogate of Queens county, dismissing proceedings upon the return of a citation issued in due form of law under 2 R. S., 61, § 32, on allegations against the validity of the will of John Helium, deceased, and the competency of the proof thereof.

This was an appeal by the defendant from a judgment in his favor upon trial by jury. The action was brought to recover damages for alleged breach of contract.

This was an appeal by the defendants from a judgment in favor of the plaintiff, entered upon the report of a referee. The action was for damages on account of breach of contract.

This was an appeal by the defendant from a judgment for the plaintiff upon the report of a referee. The action was ejectment to recover lands in the defendants’ possession. The defendants answered jointly, denying the complaint and claiming ownership of the property described therein.

This was an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff. The facts are stated in the opinion.

This was an appeal from an order of Special Term, overruling a demurrer to the complaint.

This was an appeal by the defendants from a judgment against them entered upon the report of a referee.

The proceedings in this case were brought before the court by certiorari to the defendant, a major of 13th regiment, H. Y. State Hational Guard, as… Held: and approved by him, and thereupon the defendant, as president, &c., issued his warrant to the marshal of the court, directing him to levy and collect the fines, with his costs, of the goods and chattels of the relator, and, in default thereof, to arrest him and convey him to the county jail and deliver him to the jailor.

This was an appeal from the decision of the court at Special Term in Dutchess, county. The action was brought to partition certain real estate, to which the parties claimed title under the will of Henry A. Livingston, deceased.

.This was an appeal by the defendant from an order at Special Term in Kings county, sustaining a demurrer to parts of the defendant’s answer. The complaint was on two promissory notes for $500 each, and interest at the rate of three per centum per month, severally bearing date April 14, 1858, and made at San Francisco, California, by the defendant and- others, jointly and severally, to the plaintiff.

<p>This was an appeal from a judgment entered upon a decision of the court at Special Term.</p> <p>The action was upon an accident insurance policy, which the plaintiff had taken from the defendant on the first day of July, 1867, and which purported to insure him against any accident while traveling by public or private conveyances for transportation of passengers in the United States, &c., causing personal injury, &c., for one day.</p> <p>It appeared that the plaintiff, on the same day, attempted to jump on to an omnibus, a public conveyance used for carrying passengers, while the same was in motion; that he succeeded in getting on to the steps, which were at the rear of the omnibus, but was unable, by reason of the jar of the vehi'cle, to maintain Ms footing, and received injuries of a serious nature, from contact of Ms knee with the wheel.</p>

This was an appeal by the defendants from an order sustaining a demurrer to their answer to the plaintiff’s complaint. The plaintiff set forth facts showing his title to the estate of the defendant Isaac L. Hewitt as assignee in bankruptcy, and then averred that Hewitt had been doing business in Hew York as a partner in several firms, one of which still existed and was composed of the defendants.

This was an appeal, by the defendant, from a judgment in favor of the plaintiff, upon the report of a referee. The plaintiff sued in December, 1870, to recover of the defendant, a foreign corporation, created under the laws of Hew Jersey, to recover damages alleged to have been sustained in consequence of injuries occasioned by reason of the defendant’s negligence.

This was an appeal by the defendant from a judgment for the plaintiff, on the decision of the court, for damages, and perpetually restraining the defendant from so digging and removing clay or sand from certain premises as to destroy or impair the lateral support which the soil of such premises afforded to the plaintiff’s adjacent premises, or to increase the tendency of such adjacent lands to crack, subside or fall away.

This was an appeal by the plaintiff from, a judgment in the plaintiff’s favor, entered on the report of a referee. The action was brought to redeem certain property in Brooklyn, to which James Crombie, the defendant, claimed title as purchaser at foreclosure sales, in actions brought by Mm as the mortgagee in second mortgages thereon.

This was an appeal taken by the defendant from a judgment for the plaintiff entered on the report of a referee. The action was brought to recover a share (one-half) of the proceeds of certain bonds left in the hands of the defendant, Lawrence, by the firm of Gove & Ward, composed of the plaintiff and defendant Ward, who was made a defendant on refusal to join as plaintiff.

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

Exceptions ordered to be first heard at, General Term. This action was brought to recover, back $2,000 and interest, paid by the plaintiff to the defendant as administrator, etc., of Anna C. Minch, deceased, - in satisfaction of ..a life insurance policy, issued by the plaintiff to, the deceased.

<p>Wbit of certiorari for the purpose of correcting an alleged erroneous assessment made by the defendants, as assessors, against the real and personal property of the relator in the village of Mechanicville for the year 1871.</p> <p>The relator was a stock corporation, with a capital of $70,000.</p> <p>The assessors for the year 1871 assessed the relator:</p> <p>For real estate............................. $125 >000 00</p> <p>Personal property......................... 29)786 81</p> <p>Total............. ..................~$154)~78^~81</p> <p>They also in the assessment roll stated the capi-</p> <p>tal paid in and secured to he paid in at .... $70) 000 00</p> <p>And deducted amount paid out for real estate, 40)213 19</p> <p>Leaving personal estate or stock............ $29)786 81</p> <p>The return to the writ shows that at the time the defend-</p> <p>ants met to hear the parties aggrieved, and to correct the' assessment roll, the relator appeared before them and presented affidavits' which showed, 1st. That the real estate belonging to them was worth not to exceed $45,000, but cost $40,213.19. And 2d. That the capital stock of the company was worth but eighty per cent of its nominal amount, and claimed to have the assessment against the relator reduced accordingly; and further, that in case no reduction in the assessment of the real estate was made, the assessment for personal property should be entirely stricken from the roll, inasmuch as the assessed value of the real estate would, in such case, exceed the actual value of the capital stock of the company as fixed and ascertained by the assessors.</p> <p>The return also states that although Lewis E.' Smith, the treasurer of the relator, swore before said assessors that the stock of said Linen Thread Company had been worth only eighty per cent of its par value since February 16, 1871, yet we, the said assessors, from our knowledge of said company and its property and affairs, and from the fact of its having on the first day of January, 1871, declared a dividend of ten per cent upon its stock, and from the fact that one of them having been repeatedly informed since .February 16, 1871, and before June 8, 1871, by different stockholders of said company and from the said Howland (one of the assessors) having heard the said Lewis E. Smith since the month of February, 1871, and repeatedly prior to that time, and during the past year, and other stockholders of said company say, that the stock of said company was worth at least par, or one dollar for each dollar of its capital stock, and from the affidavits then and there before them, annexed and made by the persons hereafter mentioned, did not believe or credit the sworn statement of Lewis E. Smith, as to the value oí said stock.’</p> <p>That on said 8th day of June, 1871, the said assessors, had before them, and in their possession, the annexed affidavits of several persons who were named, who severally swore to the value of the real and personal property of the said company, and that they had said affidavits before them then, and in their possession before and at the time they passed upon and decided the application of said company for a reduction of its assessment.</p> <p>It also appeared that the attention of the relator or his counsel was not called to these affidavits, nor called to the fact that they were then present for use or used upon the hearing before the assessors on the application for a reduction of the amount of the assessment.</p> <p>These affidavits showed the real estate to be worth §125,000, and had been used, upon a motion made by the relator, against the defendants for a mandamus. The defendants refused to reduce or alter the assessment roll upon the application of the relator, and this writ of certiorari was issued.</p>

Exceptions ordered to be first heard at General Term. ' The action was brought to recover damages against the defendant as an innkeeper for the loss of a stallion, &c., while one of the plaintiffs was stopping at the defendant’s inn in the town of Sharon, Schoharie county. The cause was tried at the Schoharie Circuit in April, 1868, before the Hon. Charles R. Ingalls and a jury. The facts, so far as material, are stated in the opinion.

This action is brought by the plaintiff, a banking association, against the defendant for the recovery of $4,006.80 with interest, for money had and received by it as claimed, or for a tort, by reason of the alleged wrongful taking thereof by the collector of taxes for the city of Elmira, in April, 1869, and the alleged payment thereof by him to the treasurer of said city, and the refusal of the city to pay back the same to the plaintiff upon a demand being made^therefor of…

The case was tried at the Cortland County Circuit in April, 1870, before one of the justices of this court and a jury. The action was brought upon a promissory note dated September 27, 1869, made by the defendant for the sum of $150, payable to William E. Warner or bearer on the first day of April, 1870, with interest. It was claimed that the note had never been transferred to the plaintiff by Warner, but belonged to one Elizabeth S. Newton.

The action was brought in March, 1866, to recover damages occasioned to the land of the plaintiff, by reason of its sliding down and caving in, on account of the excavation and removal of earth by the defendant. For a long time prior to the construction of the defend ant’s railroad the plaintiff was the owner of a farm of about 190 acres, situated on the east bank of the Hudson river, in the town of Germantown; and ever since then had owned and occupied it.

This ease comes up upon exceptions taken at the circuit, which were ordered to be heard in the first instance at the General Term, judgment being in the meantime suspended. The action was tried at the Schenectady Circuit in November, 1870, before one of the justices of the Supreme Court. The plaintiffs were nonsuited at the trial.

The action was brought upon a promissory note, which was as follows; “$2,562.50. Held: as matter of law, on the facts as stated: That said James J. Cowen had no right or authority to bind the defendant, Richard Chapin, in or by the note in suit; that the same is not his note, nor is he liable to the plaintiffs thereon, and the complaint should be dismissed as to said defendant, Richard Chapin, with costs.

This was an appeal from a judgment entered in the plaintiff’s favor upon a decision of the court without jury. The facts appear in the opinion of the court.

Motion by the defendant in error to dismiss the appeal of the plaintiff in error. The prisoner was indicted, tried and convicted at a Circuit Court of Oyer and Terminer held in and for the county of Wayne, for the murder of one Otto. The trial took place in October, 1870. Sentence of death was passed on him on the 29th of the same month.

This was an appeal from the decree of the surrogate of Chautauqua county, admitting to probate the will of Emma Louisa Ames, who died at Dunkirk in that county in November, 1869. The facts, as they appeared in evidence, from the testimony of the appellant, are stated in the-opinion.

<p>In an action to restrain the infringement of a trade-mark and for damages, a cause «of action in favor of the defendant against the plaintiff for infringing the same trade-mark, claimed in the complaint to have been violated by the defendant, is not a subject of counter-claim. . Accordingly, affirmative relief to the defendant in the action, restraining the plaintiff from using the trade-mark claimed in his complaint, and damages for use of the same, is erroneous.</p> <p>The street number of a building cannot become part of a trade-mark unless made use of, therefor, by one who has the exclusive use of the only building designated by such a number on the street.</p>

This action was brought to compel the collectors of taxes for the towns of Ava and Booneville, Oneida county, to inter-plead and settle between themselves conflicting claims for taxes against the defendant’s farm, which was situated partly in each of these adjacent towns. The facts are stated in opinion of the court

This was a motion for a new trial, on exceptions ordered tó be heard in the first instance at the General Term.

<p>Appeal from a judgment entered upon the direction of the Special Term.</p> <p>The facts are stated in the opinion.</p>

This was an appeal from a judgment in favor of the defendant, entered upon the report of a referee. The action was trespass, for entering the plaintiff’s close and drawing and leaving logs thereon. The defendant claimed a right to enter, &c., under one Brady, who he alleged to be owner of the freehold. The defendant also claimed that the locus in quo was a public highway, and alleged a right in the public, l)y prescription, to pile logs on the land.

This was a motion for a new trial, upon a case made and exceptions ordered to be heard in the first instance at General Term. The action was replevin, and the plaintiff had a verdict for the value of the property claimed, and nominal damages, upon facts which are stated in the opinion.

<p>This was an action by certain citizens and property owners of the city of Rochester whose property had been assessed for the expense of opening a street in that city, and was brought against the city, its treasurer and collector of taxes, claiming to have the assessment declared void, a reassessment and an injunction.</p> <p>The complaint set forth the powers of the common council of the city in respect to improvements of streets and the provisions of the city charter concerning their duties therein, and alleged in substance that the common council, in pursuance of the charter, had determined to improve Oak street, in said city, and on the 2d May, 1865, did enact and publish an ordinance for that purpose, by which it was substantially directed that the whole expense of the improvement, according tQ estimates made by the city surveyor, should be defrayed by an assessment upon the owners of houses and lands to be benefited, and which specified a portion of the city which the common council deemed would be benefited, and, after other provisions concerning the manner of payment, proceeded to direct the assessors of the city, as persons not interested, to make an assessment upon all the owners and occupants of lands and houses within the designated portion of the city of the amount of expense in proportion as nearly as might be to the advantage which each should be deemed to acquire by the making of the improvement, and it directed the assessors to meet at a time and place specified for the purpose.</p> <p>And the complaint proceeded to state that the assessors therein named did not follow or obey the ordinance in respect to assessing the owners of territory in the ordinance designated, but omitted from the assessment a very large proportion and upward of 900 feet of territory fronting on Oak street; that .the whole frontage assessed was 6,251 feet, and the expense per foot was four dollars and thirty-one cents.</p> <p>That in consequence of such omission the expense of such improvement had fallen -wholly upon the property assessed, the burden of which was increased thereby, inasmuch as the expense per foot in case the whole territory was assessed would be only some three dollars and fifty-nine cents per foot.</p> <p>That the plaintifí’s tax or assessment was greatly above what it would have been had the order of the common council been complied with, and the regulations of the charter set forth, been followed; and it referred to a schedule annexed to show the difference which the mode of assessing made to each of the plaintiffs.</p> <p>It also alleged that the plaintiffs were informed and believed that the assessment *had been ratified and confirmed by the common council.</p> <p>And that no other proceedings were had by the common council, under the provisions of said charter or otherwise, modifying or in any degree changing the terms, conditions or provisions of the ordinance, or changing in any manner the territory to be assessed for the improvement.</p> <p>And that the city treasurer had issued his warrant to the defendant, a collector appointed by him, commanding him to collect the amounts unpaid upon the assessment, with interest and collector’s fees; and that Hoshier was proceeding to collect the assessment as commanded, and threatened to sell the goods and chattels of the plaintiffs, if the assessments were not paid.</p> <p>That the assessments were liens upon the lands of the said plaintiffs, respectively, and affected their disposition of them.</p> <p>The defendants joined issue, asserting the legality of the proceedings and the validity of the assessment.</p> <p>Upon the trial the plaintiffs’ counsel opened the case with a statement of the facts set forth in the complaint, and that he would prove as alleged; whereupon the defendants’ counsel moved for a nonsuit, on the ground that the action of the assessors and common council was conclusive, and could not be reviewed in this action ; and, for the purpose of the motion, admitted the facts in the complaint to be true. The court granted the motion, and the plaintiffs excepted.</p> <p>The court ordered that the case and exceptions be heard in the first instance at the General Term, and continued a preliminary injunction which had been granted.</p> <p>Upon hearing at the General Term, the court denied a new trial. An opinion by Mr. Justice Talcott was rendered as follows:</p> <p>“ Talcott, J. The common council of the city of Rochester initiated proceedings under the revised charter (Laws of 1861, chap. 143) for the purpose of paving a part, of Oak street, and constructing crosswalks and sewers therein. By section 165 it is provided that before the common council shall determine to make any such improvement, they shall cause an estimate to be made, and, by an entry in their minutes, describe the portion or part of the city which they deem proper to be assessed for the expense of such improvement. They shall cause notice to be published, specifying such improvement, the estimated expense thereof, and the portion or part of the city to be assessed for such expense, and requiring all persons interested in the subject to attend the common council at the time appointed in such notice. At the time appointed in the notice they shall proceed to hear the allegations of the owners and occupants of houses and lots situated within the portion or part of the city so described, and, after hearing the same, shall make such further order in respect to such improvement as they shall deem proper. By section 191, whenever the common council shall determine that the whole or any part of the expense of any public improvement, not requiring the taking of any land by said city, shall be defrayed by an assessment upon the owners and occupants of houses and lands to be benefited thereby, they shall declare the same by an entry in their minutes, and, after ascertaining the estimated expense, they shall declare, by an entry in their minutes, whether the whole, or what portion thereof, shall be assessed on such owners and occupants, specifying the sum to be assessed and the portion of the city which they deem will be benefited by such improvement. By section 192 they are required thereupon further to make what is termed in section 191 a final ordinance, namely, an order reciting the improvement intended to be made, the amount of expense! tó be assessed, and the portion or part of the city on which the same is to be assessed; and directing the assessors to make an assessment upon all the owners and occupants of lands and houses within the portion or part so designated, of the amount of expense in proportion, as nearly as may be, to the advantage which each shall be deemed to acquire by the making of such improvements, which order shall be certified by the clerk and delivered to one of the assessors, with the map or profile of the proposed improvement. Section 195 directs that the assessors shall proceed to make the assessment £ according to said order,’ and return the roll to the council, who shall appoint a time at which it will hear appeals from the said assessment. By section 197 the clerk is required to publish notice of the return of the assessment to his office, and that the common council will, on such day as they shall have appointed, proceed to hear appeals from said assessment. Section 198 provides that, on the day appointed for that purpose, the common council shall hear the allegations and proofs of all persons who may complain of such assessment, and may rectify and amend the said assessment list in whole or in part, or may set the same aside and direct a new assessment, &c., or may ratify and confirm the assessment without any corrections, or with such corrections therein, as they may think proper. And section 199 declares that every assessment so ratified and confirmed by the common council shall be final and conclusive. The complaint substantially avers the proceedings to have been regular and according to the charter, down to the time when the assessors, entered upon their duties, but that the assessors, instead of assessing the expense upon ‘ all the owners and occupants of lands and houses within that portion or part so designated,’ in point of fact omitted to assess any portion of the expense on upwards of 900 feet frontage out of 6,251 feet, which was the whole territory designated by the common council, and did not, as provided by the section 195, make the assessment £ according to the said order ’ of the council, but assessed only a part of the persons and property embraced within the purview of the said order, by reason whereof the residue of the owners and occupants are assessed more than their due proportion of the expense of the proposed improvement. The complaint alleges that the common council has ratified and confirmed the assessment, without in any manner modifying the order, or its terms or provisions, and without changing in any manner the territory to be assessed for the improvement; that the plaintiffs, who are some of the parties assessed, and severally the owners of lands which are affected by the lien of the assessment, have applied to the common council to correct the assessment. That the council referred the matter to a committee, and the report of the committee is made a part of the complaint. The report admits the error of the assessors, and the injustice of the assessment, and recommends that the action of the council confirming the assessment be reconsidered, and the assessors be directed to make out a new roll, and include the omitted lands in their assessment. But the complaint alleges that the council has taken no action to modify, correct or set aside the assessment, and that the city treasurer his issued his warrant to collect the unpaid portions of the assessment, and the collector is proceeding to collect the assessment, and that the assessment purports to be a lien on the lands owned by the plaintiffs respectively. The plaintiff was nonsuited upon the ground that the complaint stated no cause of action.</p> <p>“ The answer relies upon the proceedings.</p> <p>“ The objection arising out of the attempt to unite the several parties plaintiff and their several interests in one action was waived, so far as the right to recover some form of judgment is concerned, by the omission to demur. The objection, that an action guia timet cannot be maintained, on the ground that the alleged illegality appears on the face of the proceedings, and therefore they cannot constitute a cloud upon the titles of the plaintiffs, does not apply to this case, because the city authorities may proceed to sell the land for the non-payment of the assessments, and in that case the charter provides that the certificate of sale (§ 104), and the lease subsequently to be executed, shall be presumptive evidence of the regularity and validity of the proceedings. (Allen v. The City of Buffalo, 38 N. Y., 386.)</p> <p>“ I think the assessment was irregular. The assessors are by the statute required to assess according to the order, and the order directs the assessment to be made upon all the owners and occupants within the designated area. If the assessors, can omit one-sixth, they can omit five-sixths, or if in their opinion one lot owner only will derive a benefit from the proposed improvement, they may assess the whole expense upon him.</p> <p>“ It is claimed that the assessors act judicially in apportioning the assessment. That is true as to the amount of the entire expense to be assessed against each owner or occupant, for that is a matter for them to determine, but it is not true as to the lots to be embraced in the assessment.</p> <p>“ The discretion to judicially determine that question is by the statute committed, not to the assessors, but to the common council; and when the council has made the final ordinance, designating the lands upon which the expense is to be assessed, the statute is imperative that the assessors shall assess according to the order; that is, the assessment must be spread over the whole territory designated by the common council, which alone has the power to decide as to the area which will embrace all the lands deemed to be benefited by the proposed improvement, and which the assessors cannot either enlarge or diminish, except for a provision of the statute, to which I will now advert. I think the plaintiffs’ complaint states a cause of action. But at this point we are confronted by a provision somewhat novel and extraordinary in a statute which authorizes the taking of private property for public use. The 208th section of the charter contains the following provision, viz.: 1 And all assessments and reassessments heretofore made, or that hereafter may be made, for local public improvements, shall be and are hereby declared to be valid and effectual, notwithstanding any irregularity, omission or error in the proceeding relating to the same, and all questions concerning the same shall be determined in all places liberally to sustain such proceedings, and with reference to the very right of the case, and not strictly.’</p> <p>“ I have been greatly surprised, since I discovered this provision of the statute, that no reference was made to it on the argument of the cause. I do not discover, nor was it suggested, that it has been in any way repealed, modified or limited.</p> <p>“ Assuming this provision to be in force, it seems to me that it is a perfect answer to the action, and to most, if not all, similar questions that may be made as to the legality of local assessment in the city of Rochester. The case presented by the plaintiffs is clearly within the very terms of the act.</p> <p>“ The facts alleged constitute an ‘ omission or error ’ on the part of the assessors, notwithstanding which the statute declares the assessment shall be deemed to be valid and effectual. I will not inquire here what may be the limitations to be placed upon the effect of the provision I have quoted, or how far the legislature may go in this direction. Perhaps the omission of all notice to the party whose property is to be taken, and all opportunity on his part to be heard, would be beyond the power of legislation, as not being ‘ due process of law.’</p> <p>“ But in this case the statute provides for full and sufficient notice to the owners and occupants who are assessed, with ample opportunity for them to be heard, and to introduce proofs with a view to correct or set aside the assessment, and these provisions of the law were, for aught that is alleged by the plaintiffs, fully complied with.</p> <p>“ The result is that the citizens of Rochester seem, hy the 208th section of the.charter, to be, to a great extent, at least, deprived of the protection afforded by the ordinary rule of law, that officials who proceed to take private property for public use must comply with the substantial provisions of the statute under the authority of which they assume to act. In consequence of the provision of the 208th section which I have quoted, I think the nonsuit must be sustained, and judgment ordered for the defendants.”</p> <p>Motion for new trial denied, and judgment ordered for defendant, with, costs.</p> <p>The case was then reargued.</p>

This was an appeal by the defendant from a judgment for-the plaintiff upon the verdict of a jury, and an order refusing a new trial. The facts are- stated in the opinion.

This was a motion by the plaintiff for a new trial upon a case and exceptions, ordered to be heard in the first instance at the General Term. The facts are stated in the opinion.

This was an appeal by the plaintiff from a judgment for defendant, entered upon an order denying a motion for a judgment upon a verdict of a jury. Upon the trial the court directed a verdict for the plaintiff, and reserved the case for further hearing, with leave to the plaintiff to move for judgment .upon the verdict, and to the defendant to move for a nonsuit. Afterward the plaintiff moved the court at' Special Term for judgment, and the defendant for a nonsuit.

<p>Crops sown during a lease, which cannqt mature until after the term, may not then be gathered by the lessee.</p> <p>Evidence that one acting as the lessor’s agent to receive the avails of a portion of, the crops due from the tenant under the lease, had permitted the lessee to sow the crop, will not support the lessee’s claim to reap after the term.</p> <p>Nor will the lessee’s testimony that he had informed the lessor, upon inquiry at the time of sowing, what and where he intended to sow, support -a verdict against the lessor for the crop on his refusal to allow the lessee to gather it after the term, and especially if contradicted by other testimony.</p>

This was an appeal by the defendant from a judgment entered in favor of the plaintiff upon the, report of a referee. The case came before the referee for a retrial, granted on a previous appeal to the General Term. (See 59 Barb., 93.)

This was an appeal by the defendant from a judgment entered on the decision of the court at Special Term in favor of the plaintiff. The facts are stated in the opinion.

This was an appeal from a judgment of the County Court of Monroe county reversing a judgment of a justice of the peace. The facts are stated in the opinion.

This was a motion for a new trial by the plaintiffs after nonsuit at Special Term in Monroe county. The facts are stated in the opinion.

This was an appeal from an order for a new trial, granted upon the defendant’s motion at Special Term, after verdict at the circuit for the plaintiff. The facto are stated in the opinion.

This was a motion by the defendant for a new trial upon a case and exceptions ordered to be heard in the first instance at the General Term. The facts are stated in the opinion.

<p>Plaintiff contracted with defendants to work for them for three years at a specified price, and was to have the right to use the house upon the premises where he was to labor, for himself and family to live in, for the same term. And it was further agreedjietween them as follows: ‘ ‘ That should the party of the first part (the defendants) sell the premises before the expiration of this contract, they are to pay the said P. (the plaintiff) the sum of three hundred (300) dollars, provided said P. cannot make a satisfactory bargain with the purchaser to stay on the premises.” Before the expiration of the three years the defendants sold and conveyed the premises and put the purchaser into possession. Plaintiff continued on the premises in the employ of the purchaser; and the house, up to the time of trial of this action, which was brought to recover the stipulated sum of $300. ' When the purchaser went into possession, he proposed to plaintiff to continue him in his employ, on the terms prescribed in the contract, and plaintiff refused to accept such proposition, but offered to stay for the residue of the term, on'other terms and conditions which he submitted in writing to the purchaser, who refused to accept the same, and plaintiff continued to work for the purchaser, without any specific agreement between them as to the terms of his employment up to the time of the trial.</p> <p>Held, that plaintiff having continued to remain on the premises and work for the purchaser, and being entitled to receive for his services what they were worth, must be deemed to have made with the purchaser a contract satisfactory to himself, and therefore he could not recover.</p> <p>As plaintiff had been offered by the purchaser the same terms contracted for by him with the defendants, he would, it seems, be deemed in law to have refused a “ satisfactory ” offer within the scope and meaning of the contract provision.</p> <p>Held, also, that the intention of the parties to the contract was to indemnify the plaintiff against loss and damage in case he should be thrown out of employment, and a place to live in on the premises by means of defendants’ sale of them before the expiration of the term, and to fix and settle the measure of such loss and damage in such event; and not to enable the plaintiff to speculate or make a profit to himself by exacting better terms, or such other terms as he might choose to dictate!</p>

<p>In an action upon a contract for the recovery of damages for an alleged breach, a trial was had and a decision rendered in favor of the plaintiff, and judgment ordered thereupon. Before the trial and decision a petition in bankruptcy was filed by the defendant, and, after the actual entry of the judgment, defendant obtained his discharge in the bankruptcy proceedings. Held, that the defendant was discharged from the judgment by the discharge in bankruptcy.</p> <p>The defendant, having had no opportunity to plead his discharge in the action, amotion to set aside an execution issued upon the jugment, and for a perpetual stay thereof, was his proper remedy.</p>

This action was brought to recover back moneys alleged to have been paid by the plaintiff and by his assignors, to the agents of the defendants, for excessive charges on freight transported over the defendant’s railroad, in the years 1865 and 1866. The cause was tried before a justice of this court and a jury at the Grenesee circuit in June, 1871.

<p>Motion for new trial upon exceptions ordered to be heard in the first instance at the General Term. The facts appear sufficiently in the opinion.</p>

Action to recover possession of real estate. The facts are as follows: On the 6th of October, 1854, the plaintiff was .seized in fee of the premises in question, and on that day-entered into an agreement by paroi with Eddington B. Decker, in consideration of a certain sum of money advanced by said Eddington, and of certain rights of possession and redemption of said premises to be secured to her, to convey to said Eddington or to his appointee the said premises by deed…

<p>In an action, brought pursuant to chapter 428 of Laws of 1855, to recover the value of property owned by the plaintiffs as tenants in common, which had been destroyed by a mob, it appearing that certain of the plaintiffs had been notified several days before the assembling of the mob and occurrence of the injury of threats and attempts to be made, to destroy the property by a mob, and that no notice had been given by the plain- . tiffs so notified to the sheriff of the county, and that others of the plaintiffs had received no actual notice and had no personal knowledge of the threatened destruction of the property,—Held, that a charge to the jury to the effect that such of the plaintiffs as had been thus notified were not entitled to recover, for the reason that they had failed to notify the sheriff of the county in regard to the threats, but that such of them as had not been notified and had no personal knowledge of the threats were entitled • to recover ; and that notice to their co-plaintiffs and co-tenants was not, inlaw, notice to them, was correct.</p>

This was an appeal by the defendant Scott, as an executor of Henry Sortore, deceased, from an order of Special Term, overruling his demurrer to the plaintiff’s complaint.

This was an appeal from a judgment-for the plaintiff, entered upon the report of a referee. The facts are stated in the opinion.

<p>After jurisdiction acquired, assessors act judicially in determining upon the amount of the assessment, the right to exemption and the liability of the property to assessment, and are not liable for error in the determination.</p> <p>But assessors must make them assessment at the perilof being made personally responsible if they assess persons who are not inhabitants of them town.</p> <p>Accordingly, where trustees of a school district erred in determining that the plaintiff was assessable as an inhabitant of their school district where he had taken up his abode temporarily, and assessed him forschool purposes, they were held liable for sale of his property under them warrant for cóllection of the tax.</p> <p>The cases where inferior tribunals and officers of limited jurisdiction, are required to proceed upon proofs presented to them, and those in which they act ex parte, in determining the question of their jurisdiction, distinguished.</p>

The action was brought to recover the surplus moneys arising from sale of real estate upon mortgage foreclosure. The facts are stated in the opinion.

<p>A joint judgment against several in an action of tort may, on appeal, be reversed as to one or more of the defendants and affirmed as to the others.</p> <p>Plaintiff and defendant occupied adjoining lands. Plaintiff removed a portion of the line fence between them and notified defendant that he had done so, and to remove his cattle, which defendant did not do, but shortly afterward removed the remainder of the fence. Held, that defendant was liable for damage done to plaintiff’s field by the cattle, after the entire fence between them had been removed.</p>

Motions to set aside a sale under execution. The grounds of such motions, and the questions raised and decided, sufficiently appear by the opinion.

<p>A widow is entitled to have set off to her as her dower, by metes and bounds, to be held by her in severalty, the one-third part of land of which her husband has been seized in fee in severalty, during coverture, and has conveyed an undivided portion to another person, she not joining with him in the conveyance.</p> <p>She is also entitled to have set off to her, by metes and bounds, as her dower therein, the one-third part of lands conveyed to the husband and a third person, as tenants in common during coverture, and so held by them at the time of the husband’s death, to be held by her as tenant in common with the other owner.</p> <p>Although the statute in relation to proceedings for admeasurement of dower does not require any notice to be given of the meetings of the commissioners, yet such notice is customary and proper, and should be given; but where it appears that a party interested, who complains of the omission to give such notice, knew of such meetings, and that no injustice has been done him by the decision,—Reid, that the commissioners’ report should be confirmed, notwithstanding no formal notice of their meetings had been given.</p> <p>No appeal can be taken, under the provisions of the Revised Statutes, from an order confirming such a report, unless the commissioners are appointed by the County Court or a surrogate; but an appeal to the General Term fi'omthe order of the Special Term, confirming the report of the commis- • sioners appointed by the Supreme Court upon petition, may be'upheld under the provisions of chapter 370, Laws of 1854, which allows appeals to be taken in any special proceeding from any order or final determination made at Special Term to the General Term.</p> <p>Such an appeal does not, however, stay the proceedings, without the order of the court or a judge thereof.</p> <p>The costs of an appeal from the order confirming the report in such pro- . ceedings, where the appointment has been made by the Supreme Court, are not those given by the Revised Statutes, but are regulated by the provisions of chapter 370, Laws of 1854.</p>

<p>A claim of defendant against plaintiff, arising out of partnership transac- . tians between them, the partnership being terminated before the commencement of the action, may be set up as a counter-claim in an action, on contract, and the amount due defendant as such partner may be ascertained by an accounting between the parties.</p> <p>The answer set up, in relation to such counter-claim, that the partnership • terminated at a certain day, which was several months before the commencement of the action. That plaintiff conducted the business and acted as financial manager, and had possession of the funds and all payments, and that he had in his possession all the capital and profits of the business. Held, it sufficiently appeared from these allegations that the counter-claim was in existence at the commencement of the action.</p>

This is a writ of error to review a proceeding in the Albany Sessions, on returning the plaintiff in error to the Clinton State prison to serve out an unexpired term, on the ground that he had escaped from the prison.

Appeal by plaintiff from a judgment dismissing plaintiff’s complaint at the Albany Circuit and Special Term, December, 1870. The plaintiff brought an action, alleging in his complaint that one Jesse Duel died October 1, 1839, seized and possessed of a large quantity of real estate, having made a last will and testament, which, on the 21st day of October, 1839, was admitted to probate by the surrogate of Albany county.

Tins ease comes here on appeal by the plaintiff from a judgment against her, entered on a report of a referee. The action was brought to obtain a reconveyance of certain land, or payment therefor, which had been conveyed by plaintiff to defendant.

This is an appeal from a judgment rendered in favor of the plaintiff for the sum of twelve thousand nine hundred and fifty-six dollars and ninety-eight cents upon a verdict of the Ulster Circuit, directed by the court. The action was for the avails of $10,000 seven-thirty treasury notes claimed to ha-ye been converted by the defendants to their own use.

This action is 'what is called a creditor’s hill, brought to reach property of the defendant, William D. Hill, some of which, it is claimed, is covered by a claim of the defendant, Mary J. Hill, in fraud of the creditors of the said William D.; and to set aside a conveyance of real estate held in the name of the said Mary, the wife of the said William, also charged to be in fraud of the rights of the creditors of the said William, and for other relief.

This was an appeal by the plaintiff from a judgment entered upon a verdict of a jury.

An appeal from a judgment in favor of the plaintiffs on the report of a referee. The action was replevin. The plaintiffs were manufacturers of iron safes in the city of Hew York, and the defendant was their selling factor in the city of Syracuse.

This is an appeal from a judgment on the report of a referee. The evidence is not set forth in the bill of exceptions, which simply states that the evidence tended to prove the facts found by the referee. The action is trespass, for entering upon the plaintiff’s premises, digging up the soil, and placing logs and other obstructions thereon. The judgment was for the defendant, and the plaintiff appeals therefrom.

This action was brought to recover a loss arising under a policy of insurance issued by the defendant through its agency at Elmira, to D. Strauss & Co., on the 31st day of March, 1864. By its terms the defendant agreed to insure the assured against loss and damage by fire to the amount of $2,000,, on their stock of. goods contained in the building known as 157, on the south side of Water street in Elmira.

<p>Appeal from judgment recovered on referee’s report.</p>

<p>Appeal from judgment rendered on the verdict of a jury, and from order denying a new trial. The facts are stated in the opinion.</p>

<p>Action for damages for neglect to perform an award. The facts sufficiently appear in the opinion.</p>

1st February, 1866, the plaintiff and Cyrus E. Herrick each and at the same time purchased of the defendant 500 Catawba grape roots for thirty dollars, to be delivered at Penn Yan depot the next spring, payable on delivery. The roots were delivered and paid for both at the same time and place, about the 16th of April following. In each case the contracts were made by one Jones, as the agent of the defendant. Jones delivered the roots and received the pay for them.

<p>One who is charged with a criminal offence may testify as a witness in his own behalf, under the statute of 1869 (chap. 678), although it appears that he has served out a term in the State prison. The law intended to allow a prisoner the benefit and privilege of stating to the jury any matter which was calculated to explain the charge against him, and this privilege was to be enjoyed irrespective of any matter which could disqualify a witness under ordinary circumstances. -The degree of credit to which he is entitled is a question for the jury.</p>

<p>The rule is well established that it is not competent to impeach a witness by contradicting him as to facts disconnected with and collateral to the subject-matter at issue and on trial.</p> <p>Accordingly, where a prisoner on trial for an abortion upon A. B., testified, as a witness on his own behalf, that he did not know N. W., a witness then present and pointed out to him, had never seen her, and had never procured an abortion upon her, and afterward IT. W. was called as a witness, and, under objection, testified that the prisoner had procured an abortion upon her,—Held, that the admission of this testimony was error, for which the judgment should be reversed.</p>

This was an appeal by the defendants from a judgment against them, entered upon the report of a referee. The action was brought to recover the difference in the price of a quantity of whisky between the amount for which the same was sold by the defendant, and the price at which he was authorized to sell the same.

<p>' A company, authorized by the legislature to manufacture gas to be used for lighting streets and buildings, cannot be indicted for creating a nuisance by unwholesome smells, &c., if its buildings and processes are of the best kind, its servants careful, and due skill and diligence are used in its business.</p> <p>A suit may, it seems, be maintained against the company for a special injury to a private individual caused by their works.</p>

This cause was tried at a Circuit Court, before Justice Van Brunt and a jury, at the city of Hew York, ou the 8 th day of June, 1871. The action was brought to recover damages for the alleged conversion of 400 shares of the Atlantic Mail Steamship Company.

<p>Appeal from a judgment entered in the action after a trial before one of the justices of the Supreme Court without a jury, upon his decision directing judgment in favor of the defendant, Pondir, for the amount of certain bills, less receiver’s fees; and also from an order entered, fixing the commissions and expenses of the receiver therein. The facts are stated in the opinion.</p>

The action was brought to recover a balance of accounts claimed to be due from defendants to plaintiff. An accounting was had before the referee, and he holding that the defendants were not indebted in any sum upon such accounting reported dismissing the complaint with costs. From the judgment entered upon this report the plaintiff appealed. The facts relating to the questions raised upon the accounting sufficiently appear in the opinion.

<p>Appeal from a decree of the surrogate of the county of Hew York. The facts are stated in the opinion of the court.</p>

This was an appeal from an order refusing to relieve a purchaser at partition sale from his purchase. The facts are stated in the opinion.

The first of the above entitled actions was brought to recover the sum of $1,822.10 for produce alleged to have been sold and delivered by the plaintiff to one Joseph Kellogg, the agent of E. M. Crawford, defendant, and the amount of two promissory notes signed by Kellogg, agent, without stating for whom made, given for tobacco purchased of plaintiff for the firm of Crawford & Palmer, and Bidder & Palmer, of which the defendant was the survivor.

<p>The action was brought upon two promissory notes and indebtedness for work and labor. A defence was interposed of the statute of limitations as to first note, and as to second that it was void because of the omission of the parties to stamp it. The cause was tried before a referee, who ■ sustained the defence as to the first note, and ordered judgment for the plaintiff against the defendant for the amount of second note and the claim for work and labor, amounting to $595.72, and judgment was perfected accordingly for $702.97, damages and costs, from which the defendant appealed to this court.</p> <p>The following leading facts were found by the referee: That on the 30th of March, 1863, defendant made a note in writing, whereby he promised to pay Deborah Baker $500 five years from date. That on the 17th of ¡November, 1869, said Deborah Baker assigned the note to the plaintiff. The referee also made a certain other finding and refusal to find as requested by the defendant’s counsel in certain particulars, which bo far as material, are sufficiently stated in the opinion. Exceptions were duly and properly taken to the referee’s report. It appeared upon the trial that there was no internal revenue stamp put upon the note by either party at the time it was made, nor at any time afterward, until it was assigned to the plaintiff, when stamps to the amount of thirty cents were put on the back of the note next to the written assignment, and obliterated by the letters “ D. B. Hov. 17th, 1869.” These stamps were put on and canceled by the plaintiff in pursuance of the authority given by Deborah Baker, the payee, when the assignment was made, “to put a stamp on said assignment and cancel the same.” The defendant never authorized any one to put a stamp on the note. There was no other stamp on the note when offered in evidence,and no stamp was put on during the trial. Other evidence was also given on the trial which is also stated in the opinion.</p> <p>A judgment was entered upon the referee’s report in favor of the plaintiff, and the defendant appealed to the General Term of the Supreme Court. The case was submitted upon printed points.</p>

This action was brought to recover pay for work and labor performed by the plaintiff for Christian Bennett (the defendant’s testator), commencing in April, 1852, and continuing until the last of June, 1861, a period of nine years and about two months. The cause was tried at the Cortland County Circuit in January, 1870, before Justice Balcom and a jury. The evidence established that the testator was a farmer in Onondaga county.

The- action was brought to .recover for a balance due for work, labor and services, &c., performed in 1867 and 1868 by the plaintiff, as a shoemaker, for defendants, who were partners, and judgment is claimed for such balance, with interest thereon from December 12, 1868. The case was referred, by order of the court, to a referee, to hear and determine the same.