Volume 6 — Sandford's Superior Court Reports

<p>The public administrator of the city of New York is the agent of the corporation of the city, which is liable as principal for his acts within the scope of his authority.</p> <p>The corporation is therefore liable to an attorney employed by the public administrator, in suits brought by and against him, for the costs of such suits.</p> <p>(Before Doer, Mason, and Campbell, J. J.)</p>

<p>Motion to set aside the report of a referee. The action was for damages to a horse alleged to have been loaned by the plaintiff to the defendant, which was injured in the street on his way from the borrower to the plaintiff’s stable. The facts, so far as they are necessary to understand the principles laid down, will be found in the opinion of the court.</p>

<p>This was an appeal from a decree of the surrogate of. the county of New York, admitting to record and probate, the will of Ilerriott Brown, deceased.</p> <p>The facts of the case, as they appeared in the testimony, were as follows: Miss Ilerriott Brown, the testatrix, died in the city of Washington, op. the first day of July^ 1847. At the time of her sickness and death, she resided with Charles De Selding, one of the respondents, who had married her sister Helen, and who, together with the appellant, were her only heirs and next of kin. The execution of the alleged will took place “ on one of the last days of June,” 1847, at the residence of the respondents. The instrument is drawn in favor of Julia De Selding and Charles E. E. GK De Selding, minors, the children of Helen De Selding, with an interest by way of remainder, to their mother, in case of their death without issue. Mr. De Selding was made executor. The attesting witnesses were William P. Johnston and Alexander N. Zevely, who were examined under a commission issued by the surrogate. The witness, Johnston, was the attending physician of Miss Brown during her illness, which lasted eight days. His visits during this time were very frequent. At one of these visits, within four or five days of her death, he found Mrs. De Selding in the room with Herriott Brown, who was lying in bed. Mrs. De Selding said to the witness, that her sister wished to sign a will. Dr. Johnston remarked, if she wished to do so, it would be best to have another witness, and that she had better execute it at once, and thereby relieve her mind. Nothing was said by Herriott Brown, nor did she join in the conversation. Dr. Johnston remarked that he would step out and call in another person to be a witness. He did so and brought in Alexander N. Zevely, who came in at the doctor’s request, and signed the instrument as a witness. Mr. Zevely had never before seen Miss Brown, and never saw her after this occasion. When Dr. Johnston returned with Mr. Zevely to the house of Mr. De Selding, he left Mr. Zevely in the parlor and went to the room of Miss Brown. When he entered the room, the instrument in question was lying upon the table. The doctor informed Miss Brown that it would be necessary for her to get up and sit at the table to sign it. The language used by the doctor was, that if “she wished to sign,” or “ to sign her will,” but which was the precise expression, he was unable to state. Miss Brown was accordingly assisted to the table, where the paper was then lying. When Mr. Zevely came into the room, he was introduced to Miss Brown and Mrs. De Selding, by the doctor. Miss Brown inclined her head in recognition, but did not speak. Prom a difficulty in her breathing, it was apparently hard for her to talk. Soon after, or at the time of his introduction according to Mr. Zevely’s testimony,’ Doctor Johnston mentioned to Miss Brown, that Mr. Zevely was a person whom he had invited to come in and witness her signature to her will. Johnston, in his testimony, stated all the conversation which he remembered, but did not give this remark. He testified “that Miss Brown inquired “ where she must sign the will, and on the place being pointed out, took the pen and signed.” Mr. Zevely testified, “she distinctly asked where the proper place was for her to sign.” In a subsequent portion of his testimony he spoke of “her question about where to sign,” and ■in another, of “her asking the question about the place where to sign’the will.” The will was signed in the' presence of Dr. Johnston, Mr. Zevely, and Mrs. De Selding, the two former of whom thereupon signed their names as witnesses in the presence of. Miss Brown, and of each other.</p> <p>No conversation took place between the witness, Zevely, .and Miss Brown, at the time the instrument in question was signed, and none other than what is above specified, occurred between her and Doctor Johnston, nor- was there any conversation on the part of Mrs. De Selding, except in reference to other matters. The instrument was not in the handwriting of Miss Brown, and nothing was said as to who had written or prepared it. Nothing was said by her as to its contents, nor did she read it, or have it read to her. The execution of it throughout was conducted by Mrs. De Selding. Both of the witnesses testified to Miss Brown’s capacity and soundness of mind, and that she acted like one who /understood perfectly what she was doing.</p>

<p>By the provisions of a.policy of insurance'on merchandise, if there he a partial loss by sea damage, the loss shall be ascertained by a separation and.,sale of the portion of.the. goods so damaged. On the arrival of goods thus damaged, the underwriters designated an auctioneer to sell them, and requested the insured ■ to prepare them for sale, and paid him therefor. The insured sent the goods to the auctioneer, they were sold ■ as for account of the underwriters, and the auc- . tioneer failed, without paying over the proceeds to either party. Held, that the auctioneer was the joint agent of the underwriters and the insured, and the former were not responsible to tlie latter for the loss by his failure.</p> <p>■'(Before Oaklet, Ch. J., and Paine, J.)</p>

<p>This jras an actiqn for a libel published in the New York Courier and Enquirer, of which the defendant was the editor and proprietor.</p> <p>' The publication, as set forth in the declaration, was as follows:</p> <p>“ City Intelligence. — Extorting .money to hush up a complaint. — Some time ago, a negro, named James W. Phelps, was arrested on a complaint preferred by one George W. Stanley, that he had posted up handbills purporting that the steamboat Manhattan would leave for Albany, fare fifty cents — whereby a large number of persons took, passage on her, not discovering, until it was too late to remedy the mischief, that the Manhattan was only going to Ooxsackie. The negro was held to bail for the offence, and now comes forward and makes, a complaint against George W. Stanley, who caused his arrest, and officer Lownds, as follows: he makes affidavit, that after arresting him, Stanley offered to let him go, and not prosecute,- if he would give his watch or ten or fifteen dollars, which he refused to do; Stanley subsequently renewed the offer after he had arrived at the police pffice, and he again refused. After he was oat on bail, he swears that officer Lownds came to him and offered, on consideration of receiving $50, to get him discharged, and he not having so much money, gave him all the cash he had, amounting to $22 05, and his note at sixty days for $25 more, which was accepted by Lownds, and afterwards shared with Stanley, and the note' is said to have been since seen in Lownds’ possession. Subsequently to this, Stanley again called upon Phelps, and wanted him to pay more money to him, which he refused to do; and finding that he had been cheated out of his money and would be held to bail to answer the complaint preferred, he makes this charge. Officer Lownds, we understand, produces a permission from the mayor, allowing him to receive $25 from-Phelps for obtaining bail for him, but it is said to be dated subsequent to this transaction, and is intended, doubtless, to cover it up.” The defendant pleaded, 1st. Not guilty. 2d. That before the printing and publishing the words, and after the arrest of Phelps, he appeared in person before W. Wain Drinker, Esq., one of the police magistrates of the city of New York, and preferred a complaint, which was in writing as therein set forth — “ and that the said proceedings before said magistrate-were judicial in-their character, and were openly and publicly conducted before said justice, and that the said alleged publication as aforesaid, was a true, fair, and correct account of the said public proceedings before - said' magistrate.”</p> <p>Replication, as to so much of the plea of the defendant as avers that Phelps appeared in open court, &c.; “that' the said complaint, so preferred, was a primary -and original-complaint, and made by James W. Phelps, ex parte, in the absence of the plaintiff, and without cognizance thereof to him; and that the .matters therein stated of and concerning said plaintiff, and of and concerning the several persons, matters .-and things as in said declaration mentioned, were ■ and are false,- libellous, and untrue, .as in said declaration set forth, and .that the said libel- in the said declaration mentioned,, was• published..of and concerning the said ex parte ■ complaint, and of and concerning the said several-persons, matters and .things, in the said declaration mentioned.” The defendant demurred to the replication, assigning causes of" demurrer.</p>

<p>This was an action brought to recover the amount of an alleged guaranty given by the defendant to the plaintiffs, upon the sale by them of a quantity of merchandise to the firm of Ullman & Go. The pleadings were under the „code, and consisted of a complaint and answer. The complainant alleged, that on the 2d of October, 1844, the plaintiffs agreed to sell to Ullman & Co. merchandise to the amount of $1306 29, to be paid for by their note at nine -months, provided the defendant would guaranty the payment of the same. That, in accordance therewith, 'the- defendant agreed to give such guaranty, and did execute and deliver to the plaintiffs, as a condition of the sale to Ullman & Co., a guaranty in these words:</p> <p>“ Bill, Oct. 2d, 1844,.....$1306 29.</p> <p>“I hereby agree to guaranty the payment of.Ullman & Oo.’s nóte for the above amount in favor of Messrs. Weed, Masters & Weed payable nine mos. after date thereof, viz., 2 Oct., 1844.</p> <p>“ Gerardus Clark.”</p> <p>That the goods were thereupon delivered to Ullman & Co., and their note given at nine months for the amount, but that the same was not paid at maturity, and notice of the non-payment was given to the defendant.</p> <p>The defendant, in his answer, averred that he received no consideration whatever for the alleged guaranty, and that none was expressed therein. The defendant also denied all knowledge of the note alleged in the complaint, or that he had ever received notice of its non-payment, and that in consequence thereof he was not liable upon the guaranty. The answer further set up, by way of demurrer to the complaint, that there was no averment therein that any notice had been given him of the delivering of the merchandise to Ullman & Co.; or the giving of the note alleged by them; or of any demand or refusal of payment thereof; or that the firm of Ullman & Co. were insolvent.</p> <p>At the trial, the plaintiff’s counsel read in evidence the guaranty set forth in the complaint, and also the promissory note of Ullman & Co., mentioned therein, for the sum of $1306.29, dated Oct. 2d, 1844, and payable in nine months. These instruments were on separate papers. It appeared by the testimony of the salesmen of the plaintiffs, that the merchandise in question was sold to the firm of Ullman & Co., upon the condition that the defendant would guaranty the payment of the price, and that the plaintiffs refused to sell otherwise. It also appeared that the note was taken for the merchandise sold to Ullman & Co.; that the goods were shipped to them on the 5th October, and that the guaranty of the defendant was obtained before the goods were delivered. The witness testified that it was his impression that the guaranty was brought with the note.</p> <p>The plaintiffs here rested, and the counsel for the defendant moved for a non-suit. In accordance with a suggestion of the presiding justice, however, a verdict was taken pro forma, for the plaintiffs, subject to the opinion of the court at' general term on a case to be made.</p>

This was an action to obtain, a partition and sale of certain premises, situate in Eront-street, in tbe city of New York, in which the plaintiff claimed an interest under the will of Teunis Tiebout,… Held: that the four children of the tenant for life, who were living at the time of the death of the testator, took a vested remainder in fee, and that in case there had been any children born afterwards, the estate would have opened for their benefit.

<p>This was an action of ejectment, tried before his Honor John W. Edmonds, circuit judge of the first circuit, in March, 1847. The plaintiff read in evidence a deed of the premises in question, executed to him by Edward A. Nicoll, and recorded April 30, 1838. The plaintiff then proved that he was in possession of the premises, (a lot in Eighth-street in the city of New York,) by his tenant, Norris, in August, 1844, when the defendants, claiming the possession of the lot, ordered the tenant off, and built a shop thereon; and that they were still in possession. The defendants claimed title to the premises, under a lease from the corporation of the city of New York, upon a sale of the same for an assessment for fencing vacant lots in the fifteenth ward of the city. The ordinance of the common council appointing assessors to make the assessment, required them to make an estimate of the expense of the proposed improvement, and to make a just and equitable assessment thereof among the owners or occupants of all the houses and lots intended to be benefited thereby, &c. The report of the assessors described the lot in question as being owned by E. A. Nicoll. It appeared by the affidavit of Samuel Dunshee, deputy collector of taxes, that a notice of the object and amount of the assessment, with a request to call and pay the same at the collector’s office, was served by him upon M A. Nicoll, by leaving the same at his residence. In another affidavit, Dunshee swore that he had called two several times upon the owners of the property described in the list or return annexed to the affidavit, and had demanded of them the payment of the assessments. In that list, the property in question was described as assessed by Nicoll.</p> <p>It was admitted on the part of the plaintiff that an advertisement, in the' form prescribed by law, but containing the name of Nicoll, and not that of the owner or occupant, had been made •at the times and in the manner directed by law on'sales of ■property for assessments. The defendants’ counsel then read in evidence a lease of the lot in question from The Mayor, Aider-men, and Commonalty of the city of New-York to Jacob A. Jones, for fifteen years, dated January 8, 1844, and proved its delivery to the lessee on the 8d of June, 1844. The defendants’ counsel thereupon offered to read in evidence the following certificate, signed by the street commissioner of the city of New York, under his seal, and dated the third day of June, 1844, viz.: “ I, Samuel S. Doughty, street commissioner of the city of New York, do hereby certify, that the lessee in the preceding conveyance named, has filed with me the affidavit duly certified, and copy of the notice required by the third section of the act entitled ‘ An Act in addition to the acts respecting the collection of taxes and assessments in the city and county of New York,’ passed May 2oth, 1841, and the sixth section of the act amendatory of the same, entitled ‘An Act to authorize the Mayor, Aldermen, and Commonalty of the city of New York to purchase lands for taxes and assessments in certain cases, and for other purposes,’ passed April 18th, 1843. And I do further certif/, that I am satisfied by said affidavit, that the notice, required by said act has been duly served as therein required, and that six months have elapsed since the service of said notice; and that the moneys required to-be paid for the redemption of said property, have not been paid, as required by said acts.” This certificate was objected to by the plaintiffs counsel as inadmissible, but the judge overruled the objection, and the certificate was read in evidence. The defendants’ counsel then read in evidence an assignment of that lease by Jones, the lessee, to the defendants, dated Sept. 5th,* 1844, duly acknowledged and recorded Dec. 2d, 1845.</p> <p>The plaintiff’s counsel thereupon insisted that the title of the plaintiff had not been divested from him by the said proceedings, and that he was entitled to a verdict for the property claimed, for the following reasons: First.'Because there was no evidence that the assessment for the fencing in of the lots had been assessed upon the owner or occupant of the lot; nor was there evidence of such an advertisement of sale, as would justify thef sale of the' plaintiff’s property. Second. Because there was no evidence that notice to redeem had been given in the manner required by the act of 1841. Third. Because no order or direction of the alderman or assistant alderman of the ward, in which the premises in question was situated, to fence the said premises, had been introduced in evidence.</p> <p>The circuit judge sustained the objections, and directed the j ury to find a verdict for the plaintiff for the premises claimed. To which decision and direction, the counsel for the defendants excepted.</p> <p>The jury, under the directions so given to them, found a verdict for the plaintiff, for the premises claimed.</p> <p>The cause was transferred from the supreme court to this court, and came up on a case made.</p>

<p>It is not libellous to charge a man with having pleaded the statute of limitations in defence of an- action at law, when there is no charge that he made the plea dishonestly. A publication of this kind imports no offence, nor has it a necessary tendency to expose the plaintiff to ridicule, hatred, or contempt.</p> <p>The defendants were the proprietors of a weekly paper in the city of New York, in which they charged the plaintiff with having requested the holder of a note, of which he was the maker, to wait for payment, after the same had matured; that the holder accordingly waited, and afterwards, the note being sued, the plaintiff “ pleaded the statute of limitations, and got off scot free.” In an action against the defendants, held, that the words were not libellous per se.</p> <p>There is a distinction between words spoken and the same words printed or written. The latter may be actionable, and the former not.</p> <p>(Before Doer, Mason, and Campbell, J. J.)</p>

<p>In an action against a sheriff, for neglect of duty in not levying and returning an execution, the plaintiff is prima facie entitled to recover the amount of the judgment, with interest. But it may be shown by the sheriff, in mitigation of damages, that the whole sum, could not have been collected by due diligence on his part</p> <p>Jt is no answer to such an action to show that the defendant in the execution still has abundant property, out of which the judgment may he collected.</p> <p>The plaintiff delivered an execution to the defendant, a sheriff, upon a judgment against one A. The sheriff neglected to make a levy, nor did he return the execution at the time limited, but he subsequently made a false return, viz., that the execution was superseded-by a writ of error. In an action against the sheriff, for neglect of duty, held, that the true measure of damages was the amount of the judgment, with interest, it being admitted that the judgment debtor had sufficient property out of which the execution might have been collected.</p> <p>(Before Duek, Mason, and Campbell, J. J.)</p>

<p>InEquity. Demurrer to bill for want,.of-equity. The.bill stated the following, facts. In 1839, Peter H. Schenck was created a trustee of certain property, which eventually included some shares of stock- in the Matteawan Company, (a manufacturing corporation,) by marriage articles between Wm. L. Pickering and Mrs. Wilkins, and immediately afterwards the marriage took place between the two latter. ■</p> <p>Prior to 29th November, 1842, Mr. Pickering had borrowed various small sums of money of the defendants, and having possession of a certificate of one share of the stock so held in trust, worth over $1000, he, with the consent of his wife and her trustee, on that day delivered it to the defendants, as collateral security for the payment of $426, with a power of attorney to transfer it, so as to vest the title in them for that purpose and no other. There remained due on this debt, on the 30th of December, 1843, $226.29, for which Mr. Pickering gave his note at four months, with the understanding that the stock should remain as security for that amount. On the 31st of January, 1844, the defendants discounted a note for Mr. Pickering, dated on that day, payable at six months, for $300,- with the understanding that the stock should remain as a security for that note also, in addition to the preceding one. The first note was paid and taken up at maturity, and the stock--left as security for the $300 note only. The defendants then dissolved their connection in business, and the stock and noté passed to the defendant Yandervoort, who on July 12th, 1845, received a dividend of $150 on the stock. The $300 note was not paid when it fell due, and on 22d June, 1846, there remained due upon it, deducting the dividends, $181, which Pickering tendered to the defendant Yandervoort, and demanded a re-delivery of the stock, &c., which he refused, and claimed the stock as absolutely his own. Subsequent to this, he has received several dividends on the stock, amounting in all to $380, being sufficient to repay the amount due, and leaving a balance due to the estate of Mrs. Pickering. The plaintiff was substituted as trustee in the place of Mr. Schenck, by an order of the supreme court, made 8th September, 1847, and Mr. Schenck duly conveyed the trust estate, and transferred the stock to him. The stock still continues to pay dividends, which the defendant Yandervoort receives, and claims a right to receive; and the stock stands in his name. The bill prayed for an answer without oath: That the defendants might be decreed to transfer and'redeliver the stock to plaintiff; That they might account for all the dividends received, and pay any balance, over and above the amount justly due on the note, to plaintiff; That a receiver might be appointed, to receive any dividends declared, or to be declared on the stock; That an injunction might issue, to restrain defendants from assigning the stock, and from collecting or receiving any dividends made upon it; and for general relief.</p> <p>The defendants put in a general demurrer to the bill, for want of equity, which was allowed by Mr. Justice Edmonds, in the supreme court, and the cause now came up on an order granting a re-hearing; the suit having been transferred to this court:</p>

This was an action upon a promissory note made by the defendant for $103.86, dated .July 12th, 1847, and payable to the plaintiff six months after date. The cause was tried in the supreme court, before Mr. Justice Edmonds, on the 27th September, 1848, when the plaintiff rested, after proving the note.

In Equity. This was a demurrer by the defendants 'to the plaintiff’s bill of complaint. The bill was originally filed in the supreme court.

<p>The defendant was the indorser of a promissory note. Annexed to his indorsement, he had written “13 Chambers-street.” At the time of the indorsement, and the subsequent dishonor of the note, he had an office in the city of New' York, where he transacted his business, and received his letters, but his residence, as also the maker’s, was in Brooklyn. The note had been deposited by the holder, in a bank at Brooklyn for collection, and upon its dishonor, a notice of protest was put in the post-'office at Brooklyn by a clerk of the bank, acting for the notary, directed to the defendant, “ 13 Cliambers-st., New York.” In an action against the defendant, held, that,the service of notice was sufficient.</p> <p>Held also, that the addition of “ 13 Chambers-street,” to the indorsement, must be regarded as a direction as to the place where notice was to be sent in case of the dishonor of the note, and that the service of notice was therefore in compliance with the directions of the indorser.</p> <p>Notice of protest sent to the post-office, where the indorser usually receives his letters, although in a different town from that in which he may reside, ia a valid and sufficient service.</p> <p>In an action by the indorsee of a promissory note against the indorser, service of notice of protest upon the indorser is not excused by showing that the indorser and maker had been partners in business, and the note was given for a partnership debt.</p> <p>(Before Duer, Mason, and Campbell, J. J.)</p>

Prior to 1816, Joseph Rhodes, of New York, was the consignee and factor of the plaintiffs, who were manufacturers in England, under the name of Thomas Harriot & Sons.

<p>This was an action of ejectment, brought to recover the possession of one undivided third part of certain premises on the southerly side of Chatham-square, in the Fourth Ward of the city of New York, known as No. 177 Chatham-street, and which the plaintiff claimed as dower in the estate of her husband Isaac Gomez, Junior, deceased.</p> <p>Upon the trial of the cause, in December, 1848, after proving that the plaintiff was the wife of Isaac Gomez, Junior, and that her husband had died in the year 1881, the plaintiff’s counsel read in evidence a deed from Noy Willey, of London, to Lewis Gomez and his three sons, Mordecai, Daniel, and David, as joint tenants of certain lands, including the premises in question, which deed was executed on the 17th December, 1729. It was admitted by the defendant’s counsel, that the premises described in the declaration, were parcel of certain lands formerly known as the Jews’ burying ground,- and were embraced in the deed of Noy Willey, • The plaintiff’s counsel then read a notarial certificate of letters patent from George L, king of Great Britain, granting to Lewis Gomez and his three sons, the right to hold and- convey any real estate, in any part of the realm or its dependencies.:</p> <p>Mordecai Erois, a son-in-law of the plaintiff, was then called as a witness, and produced a bible in the Spanish language, bearing the imprint of 1660. It appeared by the testimony of this witness, that this bible had belonged to the family of Gomez, •and for a long period of time had been spoken of and regarded as a family relic or heirloom. It contained many entries-of births, .marriages, and deaths in the family, .and also of remarkable events which had occurred-in-the 17th century. -</p> <p>Various entries were then read- from the book by the witness, subject to objection on- the part of the defendant’s counsel. The first entry was of the .death, in 1740, of Lewis Gomez. • There was an entry-also-of tjje death, in-T750, of his son Mordecai Gomez'; in 1769, of David Gomez; in 1780, of Daniel; and in 1789, of Moses, a son of-Daniel Gomez. It also appeared that Isaac Gomez, Junior, was one of the sons of this Moses-Gomez, and that he was the only descendant of Moses'Gomez, who had issue, or'who survived him. ■ The witness -testified to the handwriting of a part only of the entries, as of his own knowledge. He stated that the other entries were in the book in 1816, when he became a member of the family. It also appeared -by the testimony of Moses E. Gomez, a son of the plaintiff, 'over 40 years of age, that this bible had been, in the family from ■ his earliest recollection, and that it contained the -genealogy of the family, from Isaac Gomez of Spain. • .</p> <p>The plaintiff’s counsel next read in evidence a deed of release and quit-claim from Isaac Gomez, Junior, to the congregation of “Shearith Israel,” dated April 14th, 1828,- conveying the-premises described in the deed of Noy Willey..- The plaintiff- was not a party to this deed. ■ • •</p> <p>The plaintiff here rested, and the counsel for. the-defendants.. moved for a nonsuit, on tbe ground that there was no actual seisin shown on the part of the original grantees of Noy Willey, or of those claiming under him, nor any legal seisin of Isaac Gomez, Junior, in fact or actual seisin shown; which motion the presiding justice decided must prevail, unless further evidence was.offered. The counsel for the plaintiff thereupon called upon the counsel for defendants to produce a paper in their possession, which was produced by them and read in evidence by the plaintiff as follows:</p> <p>“ Know all men by these presents, that we Lewis Gomez, Mordecay Gomez, Daniel Gomez, .and David Gomez, all of thecity of New York, merchants, are held and firmly bound unto Abraham Isaacs, Jacob Eranks, and Nathan Levy, of the same place, merchants, in the sum of one thousand pounds current lawful money of the province of New York, to 'be paid unto the said Abraham Isaacs, Jacob Franks, or Nathan Levy, their certain attorneys, executors, administrators or assigns, to the which payment well and truly to be made and done, we do bind ourselves, our heirs, executors and administrators, and every of them, firmly by these presents. Sealed with our seals. Dated this twenty-fourth day of November, 1780.</p> <p>. “ The condition of this obligation is such that whereas Richard Davis, attorney of Noy Willey, of the city' of London, by a certain deed under his hand and seal, bearing date seventeenth of December last past, for the consideration of thirty pounds, current money of New York, did sell and convey unto the above bounden Lewis, Mordecay, Daniel and David Gomez, a certain lot of land situate and being in the city of New York, aforesaid, on the south side of fresh water, beginning at the south-east corner of the Jews’ burying-place, running three hundred and ninety foot north 17 degrees westerly to the highway, thence along the highway north 69 degrees east fifty-one foot and three quarters, thence south. 17 degrees 67 foot, thence south 69 degrees west'fifty-six foot to the place where it first began. And whereas the aforesaid consideration money being a voluntary offer made by them the, said Lewis, Mordecay,. Daniel and David Gomez, •which, they appropriated to purchase the above said piece of land for a burying-place for the .use of the Jewish nation in general, which title being in their names in trust.</p> <p>“ Now if therefore, the above bounden Lewis, Mordecay, Daniel and David Gomez, or their heirs, shall not sell or any ways incumber the aforesaid lot of land, or any part or parcel thereof, but that the same shall for ever hereafter remain for a burying place for the Jewish nation, as aforesaid, in general, and to no other use whatsoever, then this obligation to be void and of none effect, otherwise to remain in full power, force and virtue.</p> <p>“ Signed, sealed and deliv-I Luis Gomez, [L.S.] ered in the presence of us, [ Mordy. Gomez, [L.S.] Baruck Judah, ) Daniell Gomez, -[L.S.] Zachary Polock. ) David Gomez, [L.S.]”</p> <p>It appeared by the testimony of Mordecai Erois, that the premises in question had been formerly used as a burying-ground for the Jews, but within the last fifteen years had been parcelled out and sold, and that a portion was now in the occupancy of the defendants.</p> <p>The plaintiff again rested, and the motion for a nonsuit was renewed by the defendants’ counsel, upon the same grounds as before, and also because the instrument produced on the part of the plaintiffj created an estate in trust in the original grantees of the premises, and that therefore the plaintiff was not entitled to dower .therein.</p> <p>The motion for a nonsuit was denied.</p> <p>The defendants’ counsel thereupon read in evidence, the certificate of incorporation of the congregation of “ Shearith Israel,” under the act of 1784. Also an order of the court of chancery, made March 81st, 1823, directing a sale and conveyance of the premises in question to the defendants, and a deed of the premises by the trustees of the congregation, “ Shearith Israel,” to the defendants, dated April 30, 1823.</p> <p>It appeared by the testimony of the defendants’ witnesses that the premises in question had been occupied by the congre•gation of “ Shearith Israel,” from the time of their incorporation in 1784, as a burying-ground, until tbe conveyance to the defendants. A portion of the premises now occupied by the defendants was used as an entrance to this burying-ground. The congregation, during this period, exercised control over the property, mortgaging and leasing it, and receiving the rents and making improvements upon it, and that during this time no claim was made by any other person to the property. It was admitted by the plaintiff, that the defendants were created a body politic and corporate in March, 1828, and that the common council of the city of New York, in the same year, passed=an ordinance prohibiting burials south of Broome-street in the city, pursuant to an act of the legislature.</p> <p>The case here closed, and the court directed a verdict for the plaintiff, for an undivided third of the premises in question, subject to the opinion of the court.</p>

<p>It is not necessary for the corporation of the city of New York to cause an estimate of the expense of constructing a sewer to be made, and the amount thereof to be assessed upon the owners and occupants of premises liable to such assessment, previous to entering upon the construction of the work.</p> <p>After the common council has, by the ordinance for the construction of a sewer, appointed three persons to make the assessment, it has the power afterwards to remove them and appoint others in their places.</p> <p>The common council being authorized to appoint the assessors, the right of removal and substitution is implied.</p> <p>It is no objection to an assessment, that' no oath of office was taken by the assessors.' until after the assessment was made. It is sufficient if the oath is taken before the making of the report of the same to the common council</p> <p>An objection to an assessment that the lots were not described by street numbers, must be taken at the trial. If not then taken it cannot be made afterwards.</p> <p>(Before Oakley, Gh. J., and Campbell and Paine, J. J.)</p>

<p>A bill filed by an assignee of a factor, to discover the state of accounts between the assignor and his principal, will not be entertained, where the bill is merely in aid of a suit at law; nor where it is filed for relief, if the right to relief is made to depend upon the right to the discovery.</p> <p>A court of equity has jurisdiction over matters of acco'unt between parties, in whatever way they arise. And a bill may be filed for the settlement of such, accounts, although there may be a concurrent remedy at law.</p> <p>Tlie right of set-off is one which exists in the case of independent contracts. The right of account is essentially different. It assumes that the demands have no independent existence, but have been so connected by the original contract or course of dealing, that the only thing which either party can claim is the ultimate balance. The only right in such case is that of taking the account.</p> <p>A bill may be filed by the assignee of a factor, for the settlement of accounts between the assignor and his principal.</p> <p>(Before Duer and Mason, J. J.)</p>

<p>Assumpsit for goods sold and labor and materials furnished by the plaintiffs to the defendants, as partners under the firm of Edward Lynch & Co. The defendant Husson pleaded the general issue — Lynch suffered a default for want of a plea. On the trial in February, 1848, before the Hon. S. B. Strong, one of the justices of the supreme court, one of the grounds of Hus-son’s defence was, that the goods, labor, and materials were furnished for and on the. credit of a firm of Benson & Lynch, of which E. Lynch was a partner, and not on the credit of E. Lynch.& Co.; also, that the plaintiffs, after the dissolution of E. Lynch & Co., had taken in satisfaction of their demand the individual note of Lynch; and that on other grounds, Husson was not liable. It appeared that Benson & Lynch had executed a release of all demands to Husson at. E. Lynch & Co.’s dissolution.</p> <p>The plaintiffs called Edward Lynch as a witness, to whom the counsel for Husson objected,</p> <p>1st. On the ground that the act of 1847 applies only to those who are called to testify against their interest — the real adverse party;</p> <p>2d. That the ■ act does not apply to suits pending when the same was passed;</p> <p>3d. As to his liability as one of the firm of Benson & Lynch, he testifies to support a liability of Husson for a debt Benson & Lynch have released.</p> <p>•The court overruled the objection, and Lynch testified as a witness. Husson excepted to the ruling.</p> <p>The jury rendered a verdict for the plaintiff, and, the cause having been transferred to this court, the defendant, Husson, moved for a new trial.</p>

<p>This was an action for the publication of certain alleged libels in the New York Herald. The answer set up a justification. The cause was tried before his Honor the Chief Justice, and a jury, in December, 1849. On the trial, the defendant admitted that he was the proprietor and editor of the New York Herald, at the time of the publication of the alleged libels. The plaintiff next called as a witness George W. Stevens, who testified that he subscribed for the Herald and read it; that he subscribed for it in May, 1846, and had taken it ever since; that he paid the carrier at his office. Being shown a paper, the New York Herald of November 29th, 1848, he testified, that it was in all respects similar to the one left at his office. Being asked to look on the papers produced under the dates of December 2d, and November 29th, 1848, and say whether those papers were ever seen before by the witness, or papers like them, the counsel for the defendant objected to this question. The judge overruled the objection. The defendant took an exception. The witness answered he had. Q. What papers were those ? The witness answered, the New York Herald. The question was then asked the witness, where he saw those papers of the dates of November 29th and December 2d, 1848. The witness answered, at his law office, 27 Beekman-street, in the city of New York. He testified that the papers came from the publication office of the New York Herald; that he was a subscriber, and subscribed for the paper at the publication office, and the boy left those papers at his law office. The witness was then asked if he had read the article, “ The Illegal Bail Case of Recorder Scott,” and also the article “ Police Intelligence,” in the paper of the 29th of November, 1848; The witness testified, that he saw those articles and read them, and also the article headed “ A Hard Case,” under the date of December 1st, in the paper of the 2d of December, 1848. That those articles were in the papers left at the witness’s law office in Beekman-street. On cross-examination, this witness testified, that these papers are not the same that were left at his office.</p> <p>The counsel for the plaintiff then offered to read in evidence the alleged libels, from the papers so shown to this witness. The counsel for the defendant objected to such reading of the first two papers, .on the grounds that no sufficient proof of the publication thereof, or connecting the defendant therewith, had been given on the part of the plaintiff, to entitle him to read the same to the jury. And as to the third paper, it was not in issue, and not admissible for any purpose. The judge' overruled the several objections taken to the reading of the first two papers, and to his decision thereon, the counsel for the defendant excepted. As to the third paper, the judge sustained the objection. The articles from the first two papers were then read in evidence as follows:</p> <p>“The Illegal Bail Case of Recorder Scott. — r¥e give in our police intelligence to-day, a very full and authentic report of the facts in the history of the recent very extraordinary case of illegal bail, which was authorized by Recorder Scott, under the advice of counsel, one day last week. It will be seen .by this report, that as soon as notice was called to the subject in the public journals, the recorder took occasion to make a statement of the circumstances under which he accepted bail and permitted the prisoners to escape, in a manner which, however, by no means justifies so high an, officer as the recorder, or takes away all blame from him in the case, as it now stands. The judge of a high criminal court ought to have, to use an expressive but ordinary term, his law always 1 at his fingers’ ends;’ nor should he be under the necessity of taking legal advice, as well as a statement of facts, from counsel on any occasion. But certainly, one of the strangest things is, that Recorder Scott, at that particular juncture, should, under any circumstances, have forgotten the existence of the statute prescribing the legal proceedings in such cases; or that such an important and active principle of law should have been obliterated by the eloquence of learned counsel,, or any thing else, from the mind of so respected and independent a public functionary as Recorder Scott claims to be. The recorder, however, in giving an explanation, places the stress of the policy he pursued on the advice of the counsel engaged in the case. This counsel, it seems, is a person by the name of Huff, and who appeared to have officiated in this particular case, as legal adviser, not only of the two prisoners implicated, but also of his honor the recorder. Now, the question arises at once, who is this Mr. Huff, and how did he exercise such extensive functions as legal adviser, not only to the persons arrested, but also to the recorder himself, on the occasion of giving and taking illegal bail in this case ? On inquiry into the history of Mr. Huff, we find that that distinguished man has made a great deal of noise in the world on former occasions. His debut in life we have not ascertained; but his profession, for many years, was crier to the old marine court, in which Recorder Scott sat as one of the dispensers of justice. In that capacity, Mr. Huff has made considerable noise, strictly according to law, giving notice to the lawyers that the court was opened, and threatening the boys and loafers with punishment, unless they would keep still and quiet. On the accession of Mr. Scott to the recordership, by an appointment given to him through the influence of the late Governor Wright, and for the purpose, it is said, of making John Yan Burén attorney-general of the state, Mr. Huff transferred his talents and acquirements from the marine court to the court of sessions, where he was appointed to the responsible office of crier, which he filled with great honor and trust up to last winter. At that time he was admitted as a lawyer to practice in some of the courts, and therefore abandoned his highly responsible position of crier, and of keeping the loafers and boys quiet, for that of picking up cases about the Tombs, and managing the affairs of clients. Among other curious specimens of his legal learning and talent, we have the original of the following curious note addressed to a person named, and which we copy verbatim ei literatim ”</p> <p>(Here followed a dunning letter, defectively expressed, and spelled erroneously.)</p> <p>“ From this note it will be perceived that Mr. Huff, the legal adviser of Recorder Scott in the case of the Martins, pays no particular regard to the rules of Lindley Murray, either in spelling, grammar, or in punctuation. This, then, is the distinguished counsel, the eminent lawyer, on whom Recorder Scott rested in the emergency described by our report, when the two dressmakers or washerwomen, were called up to give bail in the case in question. We do not think it is necessary to add a single word on the character of this case, on the conduct of Recorder Scott, or on that of Mr. Huff, who appears to have been his principal legal adviser on that occasion. We are extremely sorry for the recorder. We have known him for nearly twenty-five years, and we have always _ esteemed him to be an honest, upright, intelligent, and learned man. We think, however, that there were some exhibitions, during the recent election, which resulted in such a tremendous majority against Recorder Scott, and in favor of Mr. Tallmadge, .that will modify the opinion of any man in regard to the present reeorder. The people are good judges of recorders. We may, however, forget the violent and unprovoked attacks on the character of Mr. Tallmadge, nor pry narrowly into their source, provided Recorder Scott will be particular to present this case of illegal bail to the grand jury, side by side with the alleged illegal conduct of Sheriff Acker, on Blackwell’s Island, which took place a few days ago. We shall insist upon this course.”</p> <p>“ Police Intelligence. — The Illegal Bail Case. — The Martins. — Some further proceedings have taken place in this extraordinary case. On Saturday last, Recorder Scott, it appears, ordered the re-arrest of the two prisoners for whom he took illegal bail on the Wednesday previous. Their counsel, Mr. Huff, instead of taking them before the magistrate who issued the warrant, conveyed them before the recorder in the court of sessions. Justice Lothrop informed the recorder that his proceedings were decidedly illegal, and in direct violation of the statute; and then left the court-room. After this interview, the counsel for the prisoner applied to Justice Lothrop, and asked him to come into the court of sessions and examine the prisoners, and take bail for tbeir appearance. Justice Lothrop informed bim that bis place of doing business was in the police court, and the prisoners must, therefore, be brought before him in the same manner as all other cases of the like nature. The counsel, finding there was no alternative, brought the prisoners before the magistrate in the police court, where they underwent the following examination according to law</p> <p>“Court op Special Sessions. Before the recorder, and Aldermen Eranklin and Stevens. Dec. 1. — A Hard Case. — A respectable-looking woman, named Catherine Boyle, was this morning placed at the bar, charged with having stolen $14 from one Bridget Conway, of No. 67 Cherry-street. The accuser charged that the accused had snatched the money from her hand, and that it was all in gold coin. The appearance of the accused did not indicate a character that would stoop to such means for the improvement of her store of wealth, and she begged the court to allow her time to send for witnesses. She stated that she was a stranger in this city, and averred that she could show that her character was above any imputation of this kind. While the case was pending, Mr. Huff stepped up and informed one of the judges that the prisoner had been before the court before. As Mr. Huff was formerly a crier of this court, his word was taken, and the judges evidently thought, that, they had an old offender before them. At length the witnesses for the defence arrived, and gave evidence to prove that Mrs. Boyle was a respectable person, and possessed of money of her own; that she had a large amount of gold coin, similar to that alleged to have been taken from the complainant; and, last of all, the daughter of the accused was called 'to testify. She stated that her mother had only been in the country about six weeks, that she was on her way from Liverpool to New Orleans, and had paid her passage to the latter city. Mr. Huff again being appealed to, persisted in his declaration that the accused had been before the court before; and on this declaration being made, the court sentenced her to imprisonment in the city prison for the term of thirty days. On hearing her mother’s sentence, the daughter, a young girl, perhaps sixteen years of age, hastened to leave the room, but had only got outside the door, when she dropped perfectly insensible. The indignity cast upon her mother quite overcame her, and she found it impossible to bear up under the severe stroke. She was a stranger, the money found upon the person of her mother was claimed by the accusing party, (who resides at 67 Cherry-street,) and on conviction of the accused, given up to the officer for the benefit of Mrs. Conway. The mother thus bereft of means, the daughter was alike destitute, and had nowhere to look for necessary food, until some kind friends offered her their aid. On application to the female department of the city prison, it was found that Mrs. Boyle was an entire stranger there, none of the old officers ever recollected seeing her before, and Mr. Huff was the only man that could recollect her. It was evident, in fact, and proven by a careful investigation out of court, that Mr. Huff was mistaken, and if the court sentenced Mrs. Boyle to the city prison because Huff said ‘ she was up here before,’ they have done a great wrong to her. Quite a number of sympathizing friends clustered around the girl, outside the doors of the court-room. One gentleman of the bar offered his professional services gratuitously to see the matter set right. The girl, meantime, suffering under the severe dispensation of law, was unwilling to test it farther, and would rather that a false accuser should go unwhipped of justice, than to venture further in her experience of legal affairs.”</p> <p>The plaintiff then proved his admission as an attorney of this court in 1844, and rested his cause.</p> <p>The defendant introduced evidence on his part in support of the truth and fairness of the statements in the alleged libels. John B. Scott, formerly recorder of the city, was sworn as a witness, and testified for the plaintiff. He stated what took place on the trial of Catherine Boyle in the sessions, from his recollection.</p> <p>In order to show that he had testified differently on this and other matters at the former trial of this cause, the counsel for the defendant called as a witness, Lewis H. Sandford, who testified that he was the presiding judge on the former trial of this cause; that John B. Scott was then sworn as a witness; that he, the witness, took notes of the testimony on that trial, but could not recollect of his own knowledge what Recorder .Scott testified to on that trial, except as he referred to his minutes; that he had those minutes present, and they were pretty full, but he would not say that they contained the testimony of Recorder Scott accurately; that he might have omitted things which the recorder testified to.</p> <p>Hereupon the counsel for the defendant offered the minutes taken by Judge Sandford in evidence, and the counsel for the plaintiff objected to the same as illegal evidence. The court sustained the objection, and the defendant’s counsel excepted to this decision. The witness further testified, that he recollected that the recorder stated on the former trial, that he did not recollect much about the testimony given on the trial of Catherine Boyle, except what he had down in his minutes, and that these minutes were very short. The counsel for the defendant again insisted that the minutes of Judge Sandford were competent evidence to be read to the jury, but the court overruled such evidence, and excluded them altogether, except where the witness could testify to their correctness from his recollection. The pendant’s counsel excepted. The testimony on both sides was voluminous, but sufficient of it is stated to render intelligible the points decided.</p> <p>The judge charged the jury, that where any proceeding takes place in a court of justice, or before a magistrate, in the regular administration of the law, and a publication thereof is made containing nothing but the truth of what did take place, the party making such publication will not be liable in an action for a libel; but if the publication contain matters which did not take place, and were not true, and were libellous, that the publisher is liable, and subject to an action. That in the present case, so far as the libel or publication in the New York Herald of the 2d- December contains a true aiid fair account of the judicial proceedings in relation to Catherine Boyle, the defendant was protected. But if, from the whole evidence, the jury believed that the publication misrepresented the facts to the prejudice of the plaintiff, either to hold him up to contempt, or hatred, or ridicule, the defendant would be liable. That the defendant would also be justified in any comments on the conduct of the plaintiff, in connection with the same proceedings, if they were fair, and it was-a question of fact for the jury whether the defendant had made a true statement of the proceedings in court, and a fair criticism upon the acts and proceedings of the plaintiff on that; occasion. That in regard to the question of illegal bail, and the whole article headed “ Illegal Bail Case of Recorder Scott,” under the date of the 29th of November, 1848, the plaintiff’s counsel contended that the general scope of the article was censorious, so far as the matters therein related to him the plaintiff; that much of the language of it was ironical; that it intended to hold him up to ridicule, and to show that he was ignorant and unprincipled, and it was calculated to throw odium upon him, and to expose him to public hatred. If such were the character of the publication, it was no doubt libellous. That, if the jury came to the conclusion, from the whole evidence, that the plaintiff had knowingly deceived the recorder in regard to the bailing of the Martin girls, the defendant would be justified for the publication to this extent. That in regard to the letter, the jury would look at it, and the remarks concerning it, and if a true copy of it had been published, and if the remarks were no more than a fair criticism upon it, it would be a justification for the defendant in this particular. That in regard to the publication concerning the plaintiff, in respect to his being a' crier of the marine court, the defendant had offered no evidence to justify this part of it; that the office of crier in the marine court was a legal appointment, and the station was as respectable as that of any appointment of the kind .in any court; and the defendant had not shown but that the plaintiff had always conducted himself with official and personal propriety while he held that office. That the remarks contained in this part of the publication were to be considered by the jury, and if they thought that the plaintiff was held up to ridicule and odium, in regard to 'the office of crier .of the" marine court, the defendant would be liáble.- ■ And so in- regard to the charge of picking up cases about the Tombs, no evidence had been offered-by-the defendant-in 'regard to-this part of the publication which would seem-to justify the allegation.- • *</p> <p>The defendant’s counsel excepted to the charge. The jury rendered a verdict for the plaintiff for one hundred and fifty dollars damages,'and six cents costs. ■</p>

This was an action brought in tbe supreme court, to recover tbe amount of a check drawn by tbe defendant on tbe Atlantic Bank, Brooklyn, for four, hundred and sixty-two dollars and forty-five cents, payable to tbe order of tbe plaintiffs, and dated July 21st, 1847. The cause was referred to a sole referee. Upon tbe trial, tbe plaintiffs proved tbe making of tbe check, its presentment at tbe bank, and its non-payment.

Demurrer to Pleas. This was an action instituted against tbe defendants as common carriers upon the Long Island Sound, between New York and Stonington. The declaration averred that on the 13th of January, 1840, the plaintiffs, who were merchants in the city of New York, shipped on board the steamer Lexington, in the defendants’ line, two cases of merchandise, of the value of thirty-five hundred dollars, to be carried to Stonington.

<p>This was an action brought to recover the price of sixty barrels of “ animal carbon,” alleged to have been sold to the defendant in April, 1849, at the price of 2£ cents per pound, amounting to three hundred and eight dollars and forty-one cents, to be paid for in the defendant’s note at six months, which note he had refused to give. The answer admitted the sale and delivery, but averred that the carbon in question was delivered in pursuance of a contract made in December, 1848, by which the plaintiffs agreed to furnish the defendant with carbon of the quality of a sample exhibited at the time of making the contract. That in pursuance of the contract, two deliveries were made in the months of February and April following, previous to the one for which suit was brought, which subsequently proved to be of a greatly inferior quality t6 the sample, and that by reason thereof the defendant had sustained damages to the amount of eight hundred dollars, which he claimed to set off against the demand of the plaintiffs. The answer also set up that the plaintiffs were insolvent. The reply denied that the sale and delivery in question were in pursuance of any previous contract, but alleged that this was a distinct and separate transaction. It also denied that the article was sold by sample, or that it was inferior to what it had been represented.</p> <p>The cause was tried on the 25th of April, 1850, before Sand-FORD, J. After proof of the sale and delivery of the carbon, and the price agreed to be paid, and that the defendant had refused to comply with his agreement to give the note upon its delivery, the plaintiffs rested.</p> <p>The defendant’s counsel claimed, upon the pleadings and evi- • dence, to be entitled to a verdict for the balance of eight hundred dollars, after deducting the amount the plaintiffs were entitled to recover. The judge ruled that the defendant was not entitled to set off or have allowed his demands against the plaintiffs, on the pleadings and proceedings as they then appeared. Some testimony was then adduced on the part of the defendant which went to show that in December, 1848, a conversation was had between the plaintiffs and the defendant, in which the former agreed to supply the latter with carbon, which they guarantied should be of the best quality, and should correspond with the samples delivered. It was to be supplied during the fall and following winter, at various times, as the defendant might require, not exceeding forty tons, at 2f cents per pound, in parcels of twenty thousand pounds. It appeared in the cross-examination of the defendant’s witness, that the carbon had been delivered at separate times, and that the defendant had paid or settled for the same at the times of the several deliveries.</p> <p>The testimony here closed, and the court directed the jury to find a verdict for the plaintiffs, on the ground that the contract for the forty tons being by parol and within the statute of frauds, each delivery was an independent transaction, and the defendant could not recover damages in respect of any delivery prior to the one for which the suit was brought, (a)</p> <p>The jury found a verdict for the plaintiffs, for the amount claimed.</p>

This action was brought to recover compensation for extra services alleged to have been rendered by plaintiff as a ward physician in the city of New York, during the prevalence of the cholera in the summer of 1849. The answer denied that the defendants were a corporate body, or capable of being sued as a board. The cause was referred by consent of parties to a sole referee.

The complainants, on behalf of themselves and the other children of the nephews and nieces of Henry Pope, and of Lucinda Benton, who should… Held: or might have taken and held, the same, if its charter of incorporation were now in full force and effect. ■ The General Theological Seminary of the Protestant Episcopal Church in the United States answered, setting forth that there was, as stated in the bill, on the 28th day of December, 1844, a theological school, seminary, or…

This was an action of debt against James Raymond and William H. Sackett, administrators of Henry Raymond, deceased, and against Downing and Falconer, tbeir sureties, in tbe bond given upon granting tbe letters of administration. Tbe declaration is fully stated in tbe report of tbe case on tbe demurrer thereto. (Ante, vol. ii. p. 81.) Tbe defendants, Sackett and Raymond, did not appear.

This was a suit commenced in the supreme court, .to recover for services as attorney and counsel, and for moneys paid. The defendants pleaded the general issue with’a notice of set off. The suit was tried before referees, who reported in favor of the plaintiff for a part of his claim. A motion was made in this court, after the transfer of the cause from the supreme court, to set aside the report.

This was a suit brought in the supreme court, on a. bond executed by Jacob Brandegee as principal and the above defendants as sureties, the suit being continued against the latter as survivors of Brandegee.

This suit was originally commenced in tbe court of chancery, and was transferred to this court from the supreme court, pursuant to the act of 1849. The bill was filed to settle the right of boundary between the complainants, owners of the land at the northwest corner of Columbia and Harrison streets, in the city of Brooklyn, and the defendant, owner of the land at the southwest corner of the same streets.

On tbe 16tb of January, 1847, Waterbury commenced a suit in tbe supreme court against Grabam, to recover $250, being one quarter’s rent due November 1st, 1846, for tbe bouse No. 258 Broadway, in tbe city of New York, on tbe ground that Waterbury bad let tbe same to James D. Gardner on Graham’s agreement to become security for tbe rent. The declaration contained several counts like those next mentioned, except that they were for tbe rent of a different quarter of tbe year.

Motion to set aside the report of a referee. Tbe action was brought against tbe corporation of the city of New York, to recover damages for a refusal, on the part of tbe street-commissioner, to execute a contract alleged to have been made with tbe plaintiff, for tbe regulating. and paving of Twenty-second-street in that city, and also for the refusal of tbe common council to make the necessary appropriations therefor.

This action was brought by tbe plaintiff, as receiver, to recover from tbe defendant a balance of $3447.73, claimed to be due from bim to tbe Alliance Mutual Insurance Company, for premiums wbicb bad been improperly credited by tbe company to tbe defendant upon a note for $5000 given by bim to tbe company on tbe 1st of May, 1845, and upon several notes from time to time given by bim in renewal thereof, all of wbicb notes bad been returned to tbe defendant.

These were suits instituted by the Master and. Wardens of the port of New York against the defendants, to recover penalties alleged to have been incurred under an act of the legislature relating to the master and wardens, harbor masters and pilots of the port of New York, passed February 19, 1819, and a subsequent act passed in 1844. The first suit related to the barque Jenny Lind.

The bill in this cause was filed in the laté court of chancery in March, 1847, by judgment and execution creditors of John W. Leavitt and Rufus Leavitt, formerly merchants in the city of New York, under the firm of J. W. & R. Leavitt. The plaintiffs had recovered separate judgments, viz., one by the plaintiff Nicholson, one by Seaver and Dunbar, and one by Spicer. Executions on all the judgments had been returned unsatisfied, by the sheriff of the city and county of New York.

The bill in this cause was filed on the 19th day of January, 1842, before the chancellor in the late court of chancery, by Samuel G. Ogden, administrator of Nicholas G, Ogden, deceased, against John Jacob Astor and William B. Astor. The. defendants answered the bill in June, 1848, and a replication was filed. J. J. Astor died March 28th, 1848, upon which his executors were made defendants in his stead by an order of the court.

This was a bill in equity, filed in the supreme court in 1847, by tbe assignees of Sampson V. S. Wilder, against the defendants, nine in number, to recover the amount of a loss which had occurred upon a shipment of 800 bales of cotton from Mobile to Havre.

This was an action against the defendant as indorser of a bill drawn by one Davis upon John Butler, and accepted by him, payable to the order of the defendant, and by him indorsed to the plaintiff. The cause was tried before Sandford, J., on the 7th October, 1849. On the trial, the following facts were proved.

This action was commenced to recover tbe sum of eighteen hundred dollars, alleged to have been paid by the plaintiff to the defendant, under a mistake of fact. The facts appear fully in the opinion of the court. The cause was heard upon the pleadings, before Justice Mason, at the special term in February, 1850. Upon the hearing, judgment was rendered for the defendant, and an appeal was taken by the plaintiff to the general term.

The complaint in this action was filed for the purpose of obtaining a perpetual injunction to restrain the defendants, Beach and Lockhart, from using or occupying the premises on the corner of Reade-street and Broadway, in the lower story of the Irving House, for the purpose of a hat store, or for making and selling hats, or for any other purpose, and also to restrain the defendant, Ellis, from permitting the premises to be used for any other purpose than as a jewelry and…

The bill in tbis cause was filed in the court of chancery in April, 1846, by Benjamin Farrington in bis individual capacity, and as administrator, de bonis non, and witb tbe will annexed of Jacob F. Dominick, deceased, by Ann M., bis wife, prosecuting by ber next friend, George G. Dominick and Sarah H., bis wife, Francis Dominick and Ann E., bis wife, David L. Sayre and Blanche E., bis wife, by her next friend, and David A. Sayre and Isabella D. Farrington, infants; against…

The original bill in this cause was filed in th'e court of - chaneery on tbe 16th of August, 1845, by the plaintiff, as sole acting executor of Thomas Bloodgood deceased, against George W. Bruen, as the sole acting executor of Thomas H. Smith deceased, and individually, together with Mary T., his wife; Francis L. Waddell and Louisa Ann, his wife, Thomas'H. Smith, John Smith Bruen, George W. Bruen Junior, Mary Bruen, Virginia Bruen, and Bichard S. Williams.

The complaint in this cause was filed in the supreme court in equity, by James Morgan, as sole heir-at-law, and one of the next of kin, of Alexander Morgan deceased, for the purpose of having a paper, purporting to be the last will and testament of the decedent, executed on the 28th day of June, 1841, annulled and declared void and contrary to law; and the plainfiff prayed that the same might be delivered up to be cancelled.

This was an action for a malicious prosecution. The report of the case is mainly confined to certain questions of practice, and it is not deemed necessary to state the facts in controversy, nor the opinion of the court at large on the principal points argued. The cause was tried before Yanderpoel, J., in December, 1849, and resulted in a verdict in favor of the defendant, W. A. Keteltas, and against the three other defendants.

This was an action commenced by tbe plaintiff, as tbe widow of Lewis Moore, to recover dower in certain premises in tbe city of New York occupied by tbe defendants.

<p>This was a suit to foreclose a mortgage for $1000, executed December 31st, 1829, by John Doughty and Isaac Doughty, to Jacobus Dikeman, duly recorded, and on the 13th of April, 1850, assigned by his executor to the complainant. The mortgage was on two distinct parcels of ground in the city of New York, one of which was owned by John Doughty, and the other by Isaac Doughty, in severalty. The latter consisted of four lots on 121st-street.</p> <p>On the. reference hereafter stated, the following facts appeared. The object of executing the mortgage was to raise money for the discharge of certain joint liabilities of John and Isaac Doughty, as sureties.</p> <p>In 1837, some arrangement was made between John and Isaac Doughty, by which the latter was to assume the payment of the whole of the mortgage, and thereupon Isaac, on the 16th October, 1837, executed to John Doughty a bond, with a condition that he, Isaac, would pay the mortgage, and would indemnify and save harmless John therefrom.</p> <p>Subsequently, in 1845, Isaac Doughty executed to the complainant and Philip Tillinghast, a bond with a mortgage on the lots in 121st-street, and other lands. This bond and mortgage were to secure the payment of $5500. At the time of the execution and recording of this mortgage, the mortgagees had no notice of the arrangement between John and Isaac Doughty, as to the payment of the mortgage of 1829, or of the bond of indemnity given by Isaac to John. It was proved, however, that when this mortgage was executed, the complainant and Isaac “ figured up that $1000 was due on the 121st-street property” of Isaac D., and it was claimed that this established notice to the complainant of John Doughty’s equity.</p> <p>In 1847, Amanda Eels, having some judgments against Isaac D., which were a lien on his real estate, cancelled the same, and received from him his mortgage on the 121st-street lot, and the other premises embraced in the mortgage given by Isaac D. to the complainant. There was no evidence that she had any' notice whatever .of the arrangement by which Isaac D. had assumed the payment of the whole mortgage to Dikeman, or of his having executed to John D.' a bond of indemnity to that effect.</p> <p>These subsequent mortgages were recorded about the time they were executed. The bond of indemnity never was recorded.</p> <p>John Doughty having died, his executors and devisee were made defendants in the suit, as were also Amanda Eels, Philip Tillinghast, William Colwell, and Isaac Doughty. The latter put in an answer. In July, 1850, the usual judgment was rendered in the cause, for a foreclosure of the mortgage to Dikeman, and a sale of the premises mortgaged thereby, directing the surplus, if any, to be brought into court.</p> <p>On the 11th of September, 1850, the court, on the application of John Doughty’s executors, ordered a reference to ascertain whether John IV executed the original mortgage as surety for Isaac D., or for his benefit, and whether Isaac ever assumed to pay it as between him and John Doughty.</p> <p>The lands mortgaged to Hoyt and Tillinghast, and to Eels, were inadequate, to pay the amount of their mortgages, and Isaac D. had no other property.</p> <p>The referee reported the facts above stated, and thereupon an order was made by Duer, J., directing the sheriff, in executing the decree for sale previously entered, to raise one half of the debt and costs, (i. e., the original mortgage of 1829,) out of the parcel of land owned and mortgaged by John Doughty, and the other half out of the premises on 121st-street, owned and mortgaged by Isaac Doughty.</p> <p>From this order, the devisee and executors of John Doughty appealed to the general term.</p>

<p>This was an action brought upon a bond executed by tbe defendants on the 4th day of September, 1847, under an order of filiation against the defendant, Mitchell, made by two special justices in the city of New York. By the affidavit of the mother of the child made before the magistrate, as recited in the bond, it appeared that the child was born on the 18th of March, 1841, and the complaint upon which the subsequent order was granted was not made until July, 1847.</p> <p>The declaration set forth the bond, and the proceedings before the magistrates, upon which the order of filiation was made and the bond given. Among other conditions, the bond provided that the defendant, Mitchell, the reputed father of the child, “ should pay weekly such sum for the support of the said child, so born a bastard, and the sustenance of its mother, as has been ordered by the said justices as aforesaid, or shall at any time hereafter be ordered, by the court of general sessions of the peace of the city and county of New York; and shall and do fully and amply indemnify the city of New York, and every other town, county, or city, which may have incurred any expense, or may be put to any expense, for the support of sueb child, so born a bastard, or its mother, during her confinement and recovery therefrom, against all such expenses,” &c., &c. The declaration averred that the child so born was living, and chargeable to the city of New York, and for a breach of the condition of the bond, that the defendant, Mitchell, has not indemnified the city for the expenses incurred for the support of the child, nor paid the expense of its support, as provided in the bond, but that the same had devolved upon the city:</p> <p>The defendants interposed separate demurrers, setting up various grounds of objection td the form of the declaration, and the validity of the bond declared on. It is unnecessary to specify the points of the demurrers, as the decision of the case, and the argument before the court, was confined to the validity of the condition of the bond. The suit was commenced in the supreme court, and afterwards transferred to this court.</p>

<p>This was a petition by the purchaser of the premises, sold under the decree in this cause, to be released from his purchase.</p> <p>The bill in this cause was filed in the month of February, 1844, in the court of chancery, by the respondents, who are infants, and sole surviving heirs of Peter Peterson, deceased, to set aside a mortgage upon the premises in question, given by the executors of Peterson to Jesse K. Hatfield, one of the defendants, on the ground that it was given without any legal authority. • .</p> <p>Hatfield put_m an answer to the bill, in which he insisted on the validity of the mortgage, and submitted and prayed that the real estate might, by the decree of the .court, be ordered to be sold, and the proceeds applied fto the payment of his costs, and of the moneys secured by the mortgage.</p> <p>The cause was heard upon pleadings ánd proofs before the late assistant vice-chancellor, Robertson, who decreed against Hatfield, and an appeal was taken from his decision by Hatfield to the snpreme court in equity, whence it was transferred to this court.</p> <p>On the hearing of the appeal, this court modified the decree of the assistant vice-chancellor so far as the same affected the appellant Hatfield, declared the mortgage to be a valid mortgage, that the executors had power to execute the same, and that the' appellant was. entitled to the whole principal and interest due thereon; and also directed a reference to ascertain the amount due to him on the mortgage, and decreed that in case the respondents should not pay the sum which might be reported due in sixty days thereafter, the premises should be, sold to raise the same.</p> <p>At the sale under this decree the petitioner became the purchaser, and paid the ten per cent, on the purchase money required by the terms of sale.</p> <p>He now asks to be released from his purchase, and to have the ten per cent, refunded him, on the ground that a good title cannot be made under the decree; and he contends,</p> <p>1. That the court were not authorized, and had no power, under the pleadings in the cause, to order a sale, and</p> <p>2. That no notice of lis pendens was filed, as required by the 'act of May, 1840, and of course that no proof of the filing of any such notice had been or was made when the decree was rendered in this cause.</p>

This was bill in equity, filed in tbe supreme court, from whence the cause was transferred to this court. An answer was put in, a replication filed, and evidence was introduced at the hearing of the cause. The facts disclosed by the pleadings and proofs were as follows.

This suit was commenced on a bond executed by the defendants to the plaintiffs, in the penalty of twelve thousand five hundred dollars, dated June 9th, 1846.

This was a bill, in tbe nature of a supplemental bill, filed in tbe court of cbancery in May, 1847, by Robert Tillotson against John J. Boyd, tbe City of New York, James Boyd, and Charles S. Benson. Tbe two first-named defendants answered tbe bill, a replication was filed to Boyd’s answer, and tbe cause was transferred to tbis court, where it was beard on tbe pleadings and proofs. Tbe facts appearing were these.

This was an action of covenant, commenced in the supreme court in 1847. The declaration was on a lease made by Henry Astor to William D. Crolius for a lot in the tenth ward of the city of New York, dated June 16,1825, for the term of twenty-one years, at the yearly rent of forty-five dollars, payable quarterly, with a covenant for its payment by the lessee, his executors, administrators, and assigns, together with all taxes and assessments.

This was a suit for an account and payment to tbe plaintiff, of a moiety of the personal estate of his grandfather, James Thomson, deceased.

This was a suit in equity commenced in tbe supreme court in October, 1847. The plaintiff was a tobacconist in tbe city of New York; tbe defendant, in September, 1840, became bis clerk, and on tbe first of August, 1842, became bis partner in tbe business, for a term of five years, with an interest of one-fourth in tbe profits and losses.

This was a suit to foreclose a mortgage, commenced by bill ip the supreme court. The facts appearing in the case were as follows: Stephen A. Halsey and wife, on the 17th of April, 1887,. mortgaged to the plaintiffs about 292 acres of land in the town of Greenburgh, Westchester county, to secure the payment of $6000 on the 1st January, 1888, with interest, from date.

<p>The bill in this cause was filed in the court of chancery, on the 24th day of April, 1847, by James H. Woods and his infant children by his deceased wife, Mary S. Woods, against Clement C. Moore. It set forth that, on the 6th day of April, 1802, Mary Clarke, then of the city of New York, widow, made her will, by which she appointed her son-in-law, Rev. Benjamin Moore, and Charity his wife, their son, Clement C. Moore, Elizabeth Maunsell, and Thomas B. Clarke, her executors and executrixes. After large devises and bequests to Rev. B. Moore and his wife, and to C. C. Moore, and devises in trust for the benefit of other grandchildren, the will contained the following paragraph:—</p> <p>“ Item. — I give and devise unto the said Benjamin Moore and Charity, his wife, and Elizabeth Maunsell, and to their heirs forever, as joint tenants and not as tenants in common, all that house and lot of ground situate in Hague-street, in the city of New York; also, all that lot of land situate in the patent of Kayaderosseras, and lying on the Mohawk River, in the possession of one Northrup; also, the lot of land situate in the said patent in the possession of Hacaleah Foster; also, seven hundred and fifty-one acres of land, lying in the twenty-third allotment of,the patent aforesaid ; also, six hundred acres divided into farms, now leased to different tenants, on the counterparts of whose leases I have indorsed the name of Samuel Clarke, so as to designate the farms included in this devise of six hundred acres; to hold the same to the said Benjamin Moore, and Charity his wife, and Elizabeth Maunsell, and to the survivors or survivor of them, and to the heirs of such survivor, as joint tenants, and not as tenants in common, in trust to receive the rents, issues, and profits thereof, and to pay the same to Samuel Clarke, a natural son of my late son Clement, during his natural life, and from and after his death, in the further trust and confidence, to convey the same in fee to such lawful issue of the said Samuel as he may leave at the time of his death ; and if the said Samuel shall die without leaving lawful issue living at the time of his death, then in the further trust to convey the same in fee to the said Clement Moore, son of the said Benjamin Moore, and to his heirs in fee, or to such person as he may by will appoint, in case of his death prior to that of the said Samuel Clarke.” The testatrix gave her residuary estate to the five children of her son Clement, and to Clement Moore. She died on the 23d day of July, 1802.</p> <p>The bill further stated, that the testatrix, at the date of her will, and for a long time previous thereto, and thence until her death, except as thereinafter mentioned, was seised and possessed in her own right, in fee simple absolute, of the real estate described in the will as all that house and lot of ground situate in Hague-street, in the city of New York; also all that lot of land situate in the patent of Kayaderosseras, in the possession of one Northrup; also the lot of land situate in the same patent, in the possession of Hacaleah Poster; also seven hundred and fifty-one acres of land, lying in the twenty-third allotment of the same patent; also six hundred acres, divided into farms, now leased to different tenants, on the counterparts of whose leases she had indorsed the name of Samuel Clarke.</p> <p>That all the executors and executrixes in the will named, except Elizabeth Maunsell, duly qualified, and took upon themselves the administration thereof, and received letters testamentary thereon, and that Benjamin Moore and Charity his wife, and Elizabeth Maunsell, immediately after the death of tbe testatrix, accepted all tbe trusts in tbe will mentioned, including the trusts respecting the real estate above described, and took possession of the seven hundred and fifty-one acres of land, lying in the twenty-third allotment of the patent of Kayaderosseras, and of the two hundred and fifty-two acres and one-quarter of an acre of the six hundred acres, divided into farms, so specifically devised to them; and after the death of Samuel Clarke, conveyed the same seven hundred and fifty-one acres, and two hundred and fifty-two acres and one-quarter of an acre to the children of the same Samuel Clarke hereinafter named.</p> <p>That Mrs. Clarke had at the time of making her will, and on or about the first day of May, 1801, sold and conveyed the house and lot of ground situate in Hague-street, to one Thomas Cooney, and that for the whole, or a great part' of the price thereof, she had received from .Cooney a bond, and also a mortgage on the house and lot, executed to her in the sum of thirteen hundred and fifty dollars, payable at a future period later than her death, which bond and mortgage remained in her hands unpaid at the time of making the will, and thence until her death, though, at the time of making the will, she had forgotten or overlooked the fact of her having sold the house and lot, and received in place thereof the bond and mortgage, and that her omission to specify the bond and mortgage and her interest in the house and lot arising therefrom, was a mere oversight and mistake.</p> <p>That notwithstanding the provisions of the will, Benjamin Moore and Charity his wife collected the money due by that bond and mortgage, in different sums, amounting in the whole to the sum of sixteen hundred and thirty-four dollars and ninety-six cents, the last payment in full being made on the fourth day of February, 1807, and converted the whole of the money to their own use, or disposed thereof in some other way unknown, in violation of their duty as such trustees, and contrary to the will of the testatrix, so that neither of the children of Samuel Clarke, nor the complainants received • any part thereof, or any benefit therefrom. .</p> <p>The bill then further showed, that before the death of Mrs. Clarke, one Beriah Palmer, her agent, had made a contract in her name, to sell the land described in the will as “ that lot of land situate in the patent of Kayaderosseras, and lying on the Mohawk river, in the possession of one Northrup,” and that after her death Benjamin Moore and his wife, trustees, recognized the contract as valid, and completed it, conveying the land, and receiving a large sum of money for the price thereof, and converted the money to their own use, in violation of their duty as such trustees, and contrary to the will of the testatrix.</p> <p>That the land described in the will as “ the lot of land situate in the said patent, in the possession of Hacaleah Poster,” had been sold and conveyed by Mrs. Mary Clarke, before making the will, and on or about the twentieth day of April, 1801, to one John Davis, for the price of five hundred dollars, for the whole of which she had received the bond of Davis, payable at a future period, and also his mortgage to her on the same land, payable to her later than the time of her death, which bond and mortgage remained in her hands, unpaid at the time of making the will, and thence until her death, though at the time of making the will she had forgotten or overlooked the fact of her having sold the land and received this bond and mortgage, and her omission to specify the bond and mortgage and her interest in the land arising therefrom, was a mere oversight and mistake. That Benjamin Moore and wife, converted Davis’s bond and mortgage, or the proceeds thereof, to their own use, in violation of their duty as such trustees, and contrary to the will of the testatrix.</p> <p>That of the six hundred acres divided into farms specifically devised by the will, for the benefit of Samuel Clarke and his issue, only two hundred and fifty-two acres and one-quarter of an acre, or thereabouts, have ever been conveyed by the trustees to the issue of Samuel Clarke, or to the complainants, or accounted for by the trustees, either to him or them; that the trustees either so neglected the remaining three hundred and forty-seven acres and three-quarters of an acre, or so disposed of the same, in violation of their duty as such trustees, that neither Samuel Clarke, or either of his children, or the complainants ever received any part thereof, or any rents or profits thereof, or any benefit therefrom, and this land by reason of such neglect, has been wholly lost to them and to the issue of Samuel Clarke.</p> <p>That Samuel Clarke was married and had issue, Mary S. Clarke and Harriet S. Clarke; that Mary S. Clarke was born on the ninth day of March, 1813, and Harriet on the twenty-second day of September, 1814; that Samuel Clarke died on the sixth day of May, 1815, intestate, leaving Mary S. and Harriet S. Clarke his only issue; that Harriet died on the tenth day of October, 1815, leaving her sister Mary her only heir-at-law ; that Mary S. Clarke intermarried with the complainant, James H. Woods, on the fourth day of September, 1830, by whom she had issue, the other complainants, the eldest of whom was born on the third day of August, 1831; and that their mother, Mary S. Woods, died in 1845.</p> <p>That the trustees before named were often applied to by or on behalf of Samuel Clarke and his issue, to account for and restore the bonds and mortgages, and the lands before mentioned, or the price, or the value thereof, but that all such applications were unavailing.</p> <p>That the trustees and Clement C. Moore, sometimes pretend that the three hundred and forty-seven acres and three-quarters of an acre of land, had been sold by Mrs. Clarke, before her death, or could not be located; but the bill charged that large-tracts of land belonging to Mrs. Mary Clarke, in the Kayaderosseras patent, were taken possession of by the executors of the will, Benjamin Moore and his wife among the rest, as a part of the residuary estate, and so afterwards partitioned and disposed of, which would have satisfied the specific devise to the. trustees, if the lands therein mentioned could not otherwise be. located, so that if the lands had been sold by Mrs. Clarke, there were bonds and mortgages therefor remaining in her hands at her death, which should have been taken by the trustees, and held in the place of those lands.</p> <p>That Benjamin Moore and Charity his wife, and Elizabeth Maunsell, are all dead; Moore having died on the twenty-seventh day of February, 1816, Elizabeth Maunsell, previous to the year 1820, and Charity Moore, on the fourth dáy of December, 1888, and all died intestate.</p> <p>That letters of administration of the estate of Benjamin Moore, were duly granted to Clement O. Moore, the same person named in the will, on the twelfth day of March, 1816, and that as such administrator, he took possession of, and received a large amount of personal assets over and above the amount paid out by him for debts of B. Moore; that no letters of administration have been granted on the estate of Elizabeth Maunsell, or the estate of Charity Moore, but that Clement C. Moore was the only child, and heir-at-law of Benjamin and of Charity Moore, and that he took possession of and received all the personal property, rights, and credits, of Charity Moore, left at her death, which were of considerable value, and assumed the administration and disposition thereof; that he also received from them a large real estate, being the same devised by Mrs. Glarke’s will to Benjamin Moore and Charity his wife, and to their heirs, in fee; and that the amount of real estate which descended to him, as the heir-at-law of Benjamin and Charity Moore, amounts to more than five hundred thousand dollars in value, and that he still has the same estate.</p> <p>' The bill prayed that Clement C. Moore, as administrator of Benjamin Moore, and as heir-at-law of Benjamin and Charity Moore, and in his own behalf, and as having intermeddled with and disposed of the goods, chattels, and credits of Charity Moore, might be held to account for the breaches of trust alleged; that the complainants be paid the amount of the bond and mortgages, with interest thereon from the death of Samuel Clarke, that the real estate so devised, or the value thereof, with all the rents, income, and profits received, or that might have been received therefor, might be restored or paid to them ; that an account be taken of the extent of their losses by reason of the alleged acts and neglects of Benjamin Moore and Charity his wife, and of all those breaches of trust, of the amount of the bonds and mortgages and interest, of the contract price of the land so sold by Beriah Palmer, and the interest thereon, from the twenty-third day of July, 1802, and the value of the lands, rents, income, and profits received, or that might have been received, with interest thereon, and that the . amount thereof be paid and satisfied to the complainants; first, out of the personal assets of Benjamin Moore, and then out of the personal assets of Charity Moore received by Clement C. Moore, and the residue out of the real estate descended to him as the heir-at-law of Benjamin Moore and Charity his wife, or either of them, or conveyed by them to him after the acceptance by them of the trusts of the will.</p> <p>The answer of the defendant admitted the statements of the bill, except as follows. He did not admit the quantity of land contained in the leases was six hundred acres. He stated that $100 was paid on Cooney’s mortgage to Mrs. Clarke in her lifetime. That he is unable to say how it happened that the testatrix made the devise in question of the house and lot in Hague-street, nor why she omitted to specify the bond and mortgage and her interest in the house and lot, nor whether she had forgotten or overlooked the fact of her having sold the house and lot, and received in place thereof the bond and mortgage ; nor whether her omission to specify the bond and mortgage and her interest in the house and lot arising therefrom, was a mere oversight and mistake.</p> <p>He admitted that the acting executors of Mrs. Clarke did collect all the money due upon the bond and mortgage at her death, with interest thereon; and that the whole sum so collected amounted to sixteen hundred and thirty-four dollars and ninety-six cents; and that the same was paid at different times and in different sums; and that the last payment thereof was made on or about the fourth day of February, 1807.</p> <p>He does not know, and is unable to state, what proceedings were had, subsequent to the death of Mrs. Clarke, in reference to the lot of land contracted by her agent, B. Palmer, nor how much land there was, nor where it was.</p> <p>As to the land contracted to John Davis, he answered as in' respect to the Hague-street lot; and he insisted as to both, that the devises of the premises conveyed to Cooney and Davis were wholly inoperative and void, inasmuch as Mrs. Clarke had no title to the same at the time the will tvas executed by her. He alleged that the acting executors of the will of Mrs. Clarke appropriated and applied the bonds and mortgages of Cooney, and Davis, or the proceeds thereof, to the residuary legatees of Mrs. Clarke, some or one of them, as part of her residuary estate. He stated that he was unable to give any explanation as to 347f acres of the 600 acres stated in the will to have been divided into farms, and to be specifically devised for the benefit of Samuel Clarke and his issue. . He presumes either that the same were sold by Mrs.. Clarke, in her lifetime, or that no counterparts of leases were .found among her-papers with the name of Samuel Clarke indorsed thereon to designate the.same.</p> <p>The answer denied all the breaches of .trust alleged, and all liability.</p> <p>A replication was filed and proofs taken.. The cause was transferred to this court. The. proofs established that the defendant,. and those whom he represented, had received the amount of the mortgages of Cooney and Davis, and also a bond of four hundred dollars, given for a part of the proceeds of the six hundred acres mentioned in the will as having been divided into farms. There was ho evidence showing the receipt of any thing from the lot of land described in the will as in the possession of one Northrup.</p>

This suit was commenced in January, 1848, by the plaintiff as executrix of Samuel Lyle, deceased. The declaration contained five counts. The first was on the money counts, the second was on an account stated with the testator; both averring promises to him, and the cause of action in each set forth as having accrued April 1, 1819. The third count contained the money counts, with a promise to the plaintiff as testatrix. The fourth was on an account stated with the plaintiff.

The bill was filed by Stephen Hasbrouck as trustee of tbe separate estate of Adeline, tbe wife of William. L. Pickering. The cause is reported on tbe demurrer to tbe bill, ante page 74. After tbe demurrer w;as overruled, tbe defendants put in an answer, and issue was joined. Tbe cause came on to be -beard before Campbell, J., at tbe special term.

<p>A bank has no lien upon money standing to the credit of one of its depositors, for the amount of a bill of exchange indorsed by such depositor, and discounted by the bank, but which bill has not yet matured.</p> <p>An assignment by a depositor for the benefit of creditors, carries to the assignee all the right which the depositor had in his bank deposit, at the date of the assignment.</p> <p>Notice of such assignment to the bank is necessary only to prevent the bank from paying the deposit on the checks of the assignor, or from parting with the funds of the bank on the faith of the deposit still belonging to him.</p> <p>A bank depositor, who was an indorser on a bill held by the bank running to maturity, and in whose favor there was a balance of account nearly equal to the bill, made a general assignment for the benefit of creditors. Soon after, and before notice of the assignment, the bill was protested, the assignor fixed as indorser, and the amount of the bill was charged to his account on the books of the bank. The bill was held by the bank, uncancelled when notice of the assignment was given. Held, that the assignee was entitled to recover from the bank the entire sum in deposit, without any deduction for the amount of the bill.</p> <p>The right to set off a demand against an assignee has not been affected by the code of procedure.</p> <p>(Before-Oakley, Oh. J., and Ddek and Paine, J. J.)</p>

<p>A third person, representing that he had in his hand9 sufficient property of a debtor which he intended to sell, in consideration that the creditor would extend the time of payment promised-by parol to the latter that he would sell the property, aud pay the creditor, and that it should séll for enough to pay the debt.</p> <p>Held, 1. That the promise was not one to pay the debt of another, and not within the statute of frauds.</p> <p>2. That it was made upon a sufficient consideration.</p> <p>(Before Oakley, Oh. J., and Doer and Paine, J. J.)</p>

This was a suit on a bond executed by Price as principal and by the two other defendants as his sureties. The complaint described it as a joint bond, without any allegation that it was also several. The defendants all answered, setting up various grounds of defence, which are not important here. The cause came on to be tried, and the bond was read in evjdenee, when it appeared to be a joint and several bond.

This was a motion to discharge the defendant from arrest, brought on at chambers, and by the direction of the judge sitting there, argued before the full bench. The motion was made upon the following affidavit. “ New York Superior Court. “ James Pinckney Henderson, Adsin.

<p>Appeal from chambers. The complaint charged that defendant wrongfully entered into plaintiff’s house, 586 Broadway, and bored holes through the roof-timbers, and nailed braces and bolts upon the roof, and attached a rope to the roof, from which the defendant suspended a flag or sign of an exhibition.</p> <p>The answer denied that the defendant wrongfully entered and committed upon the'premises the acts charged. It then stated that what he had done was done “ by and with the permission and consent of a person in the occupancy and possession of the premises, having the power to give such consent and permission.” The reply, putting in issue the consent, also* denied that any person in the possession or occupation of the premises, had the authority or lawful right to give such consent.</p> <p>At the trial, it appeared that the plaintiff’s tenant of the house gave the defendant permission to erect a fixture on the roof, from which to suspend a flag or canvas sign of some public exhibition. As the lease gave the tenant no authority to do this, the question at the trial was one of damages merely, and the jury gave the plaintiff a verdict for six cents. Upon this the defendant claimed costs, and the clerk entered a judgment in his favor for the costs of the suit. The plaintiff moved at chambers to correct the judgment by striking out the award of costs to the defendant, and inserting a recovery in his favor for the same. The motion was granted, and the defendant appealed from the order.</p>

The defendant moved to open a default, by which the plaintiffs had taken an order for the appointment of a receiver. The motion was resisted on the ground that the defendant was in contempt for a violation of the ex parte injunction granted in the cause. It appeared that the injunction order was served on the defendant by delivering to him a copy of the same, but without showing to him the original order signed by the judge.

This was a motion to compel the defendant, Law, to pay to the plaintiffs the sum of $19,890.29, on the ground that he admitted in his answer that he had in his hands that sum belonging to them.

<p>The rules and practice of the courts on the subject of accounting, existing at the time of the adoption of the code, are still in force.</p> <p>Accordingly, where an order of reference directed the account of the defendant, an agent, to be taken in the “usual manner,” it was held that he was bound to ■ bring in before the referee a. sworn account, including both debits and credits, in the manner prescribed in the 101th rule of the late court of chancery, and to submit to such examination as was allowed by that rule.</p>

Motion to discharge an order of arrest. The facts are stated in the opinion, which was delivered by Mason, J., with the concurrence of Duer, J.

<p>Appeal from an order at chambers. Cochran and others sued Webb,in an action to recover lands, (formerly known as an action of ejectment.) The plaintiffs claimed title to the premises as the heirs-at-law of Thomas Lovett, deceased. The lands sought to be recovered cónsist of a tract in the city of New York, bounded easterly by the East river, and westerly by Mangin-street, which tract was formerly covered by the water of the East river, and was made by filling up east of Mangin-street. Thomas Lovett, as the plaintiffs alleged, owned this tract as annexed to his land lying in and west of Manginstreet, and it descended to his heirs.</p> <p>Webb put in an answer to the complaint, denying the plaintiff’s title, and setting np a'legal title in himself by and through a partition of the estate of Lovett. The suit is at issue.</p> <p>Before Cochran’s suit was put at issue, Webb filed a cross complaint against the plaintiffs in that suit, setting forth that the tract in question was a part of the lands formerly owned'by Thomas and George Lovett, that those lands were divided between George L. and the heirs of Thomas L., in which division the tract in question was intended to be allotted to the latter, but owing to a mistake were omitted to be described in the report of the commissioners in partition in their description of the nineteen lots adjoining on the west, which were allotted to those heirs. That E. Pell subsequently bought those lots and the tract in question from the special guardian of the heirs under an order of the court of chancery. That by mistake the latter tract was omitted in the deed first executed to Pell, but on discovering the error, the special guardian executed a conveyance of the tract to Pell, from whom Webb derived his title. Webb prayed in his complaint for a release of the title of the tract in question from the plaintiffs in the ejectment, and for an injunction order and for general relief. There was a demurrer to this complaint. .Webb thereupon moved for an.order, staying the ejectment suit until the decision of his cross suit.</p>

This was an action for a false imprisonment and malicious prosecution. At the trial, the plaintiff’s complaint was dismissed, and judgment for the defendant’s costs was afterwards entered.

This was a demurrer to a complaint upon a promissory nóte. The plaintiff sued “ for the benefit of The National Loan Fund Life Assurance Society,” and averred in the complaint that he was specially authorized to bring the suit for and on behalf of the society. Some other matters are stated in the decision, which had the concurrence of three justices.

This was a motion to strike' out the answer of the defendants, as a sham and insufficient answer, and for judgment in favor of the plaintiff, founded on the pleadings, and an affidavit by the plaintiff, that he had no previous knowledge of the defence set up in the answer, and that he was informed and believed that the alleged facts set up as a defence are not true.

<p>The plaintiff sued Bartlett in this court in 1847, in an action of trespass, the cause was tried, a verdict given for the plaintiff for upwards of fifteen hundred dollars, and a judgment was entered on the verdict. His attorneys in the suit were Messrs. Brown and Mathews. Bartlett appealed to the court of appeals. The plaintiff then assigned the judgment to his brother James Sweet. On the 5th June, 1851, while the cause was on the calendar of that court, the respondent’s attorneys having noticed it for argument, Bartlett and the two Sweets got together and settled the whole suit and litigation, Bartlett paid one thousand dollars in full, and the plaintiff discharged the judgment and the suit in the court of appeals. The attorneys, B. and M., were not present, and knew nothing of the affair. All the parties to it knew that no part of their costs of the litigation had been paid. Bartlett gave the plaintiff’s attorneys notice of the settlement of the suit, which they disregarded, and on the notice of argument previously given, took a default in the court of appeals by which the judgment,of this court was affirmed, obtained a remittitur, and entered a fresh judgment thereon in this court for the amount of the original recovery and the costs in the court of appeals. They then issued an execution on the latter judgment, directing the sheriff to levy the whole amount of the debt and costs. Bartlett thereupon moved to set aside the last judgment and the execution as irregular.</p>

<p>In an answer to a complaint for an assault and battery, the defendant will not be permitted, first to deny the charge, and then to set up son assault demesne.</p>

<p>An answer in an action of slander, denying the speaking of the words, cannot also set up matter in mitigation of damages.</p> <p>Thb code allows that, only where the defendant justifies the slanderous words. Where there is no justification, the rule is the same as under the old system. Evidence in mitigation may be given on the trial of the issue made as to the speaking of the words alleged.</p>

Motion to strike out an answer as sham or frivolous, heard at chambers by Duer, J., and the point last stated in the note of the case, decided with the concurrence of all the judges.

This was a demurrer to part of an answer, argued at the Special term, before Duer, J., and the two last points above noted were decided with the concurrence of all the justices. The complaint was for a libel. The answer averred the truth of the matters charged as libellous, and then set forth various facts for the purpose of mitigating the damages. The plaintiff demurred to the part of the answer which contained those facts.

<p>Two defendants, who appeared by the same attorney, put in separate answers, to which the plaintiff demurred. The demurrers were allowed, with leave to the defendants to amend on payment of costs. Held, that the plaintiff was entitled to a separate bill of costs against each defendant.</p> <p>Where a demurrer is noticed for the general term, and placed on the calendar, is then ordered to be heard at the special term, and is placed on the calendar and heard at special term during the same month for which it was so noticed, the prevailing party cannot tax a fee of ten dollars for the general term. He is entitled only to the fee of fifteen dollars for the argument at the special term.</p>

Complaint for work, labor, and services, in making certain militia uniforms at seventeen dollars each-. The answer traversed the plaintiff’s claim as stated, and then set forth that the clothes made were not worth more than twelve dollars each.

<p>An order giving the plaintiff further time to serve his complaint, cannot be granted ex parte, aftér the time for serving it has expired. It must be obtained on notice, or an order to show cause, served on the defendant.</p>

<p>Where ati order requires a party to amend or tlie like, and directs him to pay costs, the payment of the costs is not a condition precedent to the amendment. . In order to have that effect, it must be expressed to be on payment, cite., or in other equivalent express terms.</p>

<p>In exercising the discretion of the court as to issuing commissions to tafce testimony, the court will not allow one to issue, where the object is to procure cumulative testimony on a point on which there was conflicting evidence at a former trial, and the expense of executing the commission will exceed the amount involved in that point.</p>

The defendant appealed from the judgment in this cause, (ante Yol. 3, p. 179,) to the court of appeals, where the judgment was affirmed, October 25th, 1851. The remittitur from that court was filed with the clerk of this court, the costs were adjusted, and the original judgment and interest thereon together with those costs were paid. The plaintiff claimed in addition, a further sum equal to the interest on the judgment, by way of damages on the appeal.

<p>The defendant obtained an ex parte order requiring tbe plaintiff, a non-resident, to file security for costs. The plaintiff’s attorney immediately prepared and filed as such security a bond in the penalty of $250, notified the same to the defendant, and proceeded to trial. No exception or objection was taken to the bond or the sureties. More than twenty days after notice of filing it was served, the defendant moved, that the plaintiff should give further or additional security for costs, on affidavits showing that the defendant’s costs in the suit were already greatly beyond $250, and that the plaintiff was proceeding to obtain a new trial.</p>

<p>Pacts, and not the evidence of facts, are to be pleaded, in suits for legal relief.</p> <p>In a suit on a note, against one sought to be charged as a general partner, who was ostensibly a special- partner with the trader who made the note, the proper course is to charge the defendant in the complaint as a general partner, and if the special partnership be ,set up as a defence, then to state in reply the acts alleged as constituting him a general partner. If such acts be set forth in the complaint, they will be stricken out on motion.-</p> <p>(Before Oakley, Oh. J., and Sandford and Duer, J. J.)</p>

This was an appeal from an order made at chambers, giving power to the referee to compel the production of books and papers containing evidence relating to the merits of the action or defence, and in the possession, or under the control of either of the parties.

<p>The adjustment of costs without notice, where the adverse party is entitled to notice, does not affect the regularity of the entry of judgment.</p> <p>The insertion of the costs' in the entry of the judgment, is irregular, and will be vacated; as also the judgment roll, the docket of the judgment, if perfected, and the execution, if issued.</p> <p>The case of. Elson v. The JY. Y. Equitable Insurance Go., (2 Sand. S. O. R. 654,) qualified and limited to the proceedings subsequent to the entry of the judgment.</p> <p>A plaintiff, whose proceedings subsequent to the defendant’s default and the entry of judgment were irregular, refused to open the default or vacate such proceedings, on a suitable explanation and offer on the part of the defendant; on the defendant’s motion to set aside the proceedings and the default, costs were given against the plaintiff.</p>

<p>In a suit- for a partnership account, a fee for the trial of issues of law, is taxable on the cause being heard on the special term calendar, and a reference to take an account directed.</p> <p>Where there are issues of fact in an equity case, and on the reference of the cause, the referee determines the questions of fact involved, the prevailing party is entitled to the fee for the trial of issues of fact, although the order of reference reserve all other questions.</p> <p>On a motion for a re-hearing in such a case, before the general term, a fee for the trial of issues of law is taxable.</p>

<p>Where the plaintiff, ia a suit commenced before the code, omitted to try his suit when called, by reason of which it was placed at the bottom of the calendar at the next term, and although noticed, was for that cause not reached on the calendar, but the plaintiff had been placed under a stipulation to try the cause at the last-mentioned term; it was held, that he was entitled to the costs of that term as costs in the cause.</p>

<p>The action was for lumber sold and delivered at various times, part of wbicb had been paid for. Issue was taken on the price and value of the lumber, as well as the amount. The cause was referred to a sole referee, to report upon the whole issue. In December, he made his report, finding in the general form heretofore used in actions at law, that there was due to the plaintiff, $248.82. There was no statement of the facts found, or conclusions of law, and on this ground the defendant moved to set aside the report as irregular.</p>

<p>In an action for a divorce on the ground of adultery, an order of reference on the default of the defendant to answer will not he made, where the complaint contains no specification of the person with whom, or the place where, the offence was committed.</p> <p>An allegation that the defendant, in November, 1851, committed the offence in the city of New York, with a female whose name is unknown to the plaintiff, and the particular circumstances of which are unknown to the plaintiff, will not suffice. ■</p> <p>If the person be unknown, the complaint should state particularly the place where the offence occurred, as at a house specified, or the like.</p>

<p>It is no objection to a notice of the adjustment of costs, that it was given before the right to recover costs was established, provided the right to such costs as were noticed .exist at the date for which the notice was given.</p> <p>So held, where the plaintiff, in an action for money only, in anticipation of a default, gave notice of adjusting the costs to which he would be entitled on taking judgment by default, for a day subsequent to the time when he could regularly enter the default.</p>

<p>Proceeding supplementary to an execution returned unsatisfied. It appeared by the examination of the judgment debtor, that he had formerly owned, or was in possession using as his own, certain vessels navigating the Hudson river; but which he alleged were all bought for, or were now owned by, his sisters. That these vessels were laid up for the winter season, at a designated place, where a new execution might .be levied upon them without difficulty.</p> <p>It also appeared that several other creditors had instituted similar supplemental proceedings against this defendant. The plaintiff now applied for the appointment of a receiver of the defendant’s property, under sections 298 and 299 of the code. Notice of the application had been given to all the creditors who were proceeding in the same manner, but no copy of the examinations was served with the notice.</p>

<p>Motion to strike out an answer as frivolous and for judgment. The complaint states, on information and belief, that the defendants made and indorsed a promissory note, of which the following is a copy:</p> <p>“ New Yorlc, March 15, 1851.</p> <p>“ $2261.01. Eight months after date we promise to pay to the order of Chesebrough, Stearns & Co., twenty-two hundred and sixty-one w. dollars, value received in merchandise of Hammerling, Mayet & Co.</p> <p>(Signed,) “ Chesebrough, Stearns & Co.</p> <p>(Indorsed,)</p> <p>“ Chesebrough, Stearns & Co.”</p> <p>The complaint then alleges “ that there is due to the plaintiffs on the said note, from the defendants, $2261.01, with interest,” &c.; for which they demand judgment.</p> <p>The answer sets forth that the defendants have not any knowledge or information sufficient to form a belief, 1. whether or not the note was ever transferred or delivered to the plaintiffs ; or 2. whether or not the plaintiffs are the lawful holders or owners of the note. The answer also objects to the complaint that it does not state facts sufficient to constitute a cause of action.</p>

<p>After a demurrer to an answer, the defendant may serve an amended answer of course within twenty days, although before demurringto the answer the plaintiff had obtained on motion an order to strike out parts of it, with leave to the defendant to amend on terms, which he had not done.</p> <p>The only limit in the code to the right to amend of course after a demurrer is, that it shall not be done for the purpose of delay.</p>

<p>A creditor cannot, by a proceeding supplementary to hia execution returned unsatiafied, reach movables which the debtor assigned for the benefit of hia creditors while the execution was in life in the sheriff’s handa.</p> <p>He might have levied his execution on such property after the assignment, but his priority over the assignee ceased when hia execution was returned without levying it.</p> <p>The lien of the execution was then spent, and the supplemental proceeding does not revive it as against the assignee.</p>

This cause was tried in. December, and a verdict rendered for tbe plaintiff against all the defendants. They prepared a case with leave to turn it into a bill of exceptions, intending to move for a new trial both for misdirection of the judge and because the verdict was against the weight of evidence.

<p>In a suit commenced by Reynolds against Freeman and several others, Freeman demurred to the complaint. The demurrer was argued at the special term in December, 1851, and was allowed by the court, with leave to the plaintiff to amend. The plaintiff thereupon served a notice that he appealed from the order allowing the demurrer. At February term, 1852, he noticed the appeal for argument, placed the cause on the calendar of the general term, and when it was reached on the second day of the term, took an order by default, reversing the order or judgment below. The plaintiff did not give any security on appealing, nor serve any printed copy of the papers on the appeal, and no judgment had been entered on the demurrer when the appeal was taken. The defendant moved to set aside the order entered at the general term as irregular, insisting that the appeal was void.</p>

<p>On a demurrer to parts of an answer, the defendant is at liberty to raise the objection that the complaint does not state facts sufficient to constitute a cause of action; and if the objection be well taken, the complaint will be dismissed.</p>

Motion that the defendant pay over money, &c. The complaint was for money had and received by the defendant in a fiduciary capacity, praying for its payment with interest, or for other relief. The answer stated that the defendant was the surety for the plaintiff for the payment of the rent in a lease to the latter executed by Florence & Harpel.

<p>One who receives money from another to pay directly to a third person, may be arrested, under the code of procedure, on his. omission to pay it over.</p> <p>He is liable to arrest as having received it as an agent, as well as by reason of his fiduciary character.</p> <p>(Before Oakley, Oh. J., and Sandford and Campbell, J. J., the other Justices concurring.)</p>

<p>Appeal from an order at chambers, granting a motion for judgment as in the case of nonsuit, unless the plaintiff should stipulate to try tbe cause at tbe next term. Tbe defendant was entitled to his motion according to the practice of the court, and the plaintiff was permitted to stipulate as a term on which he should be relieved. The plaintiff, in resisting the motion, read affidavits tending to show that by reason of the residence of his witnesses at New Orleans, he would be unable to try his cau'se at the then next term. On the appeal being moved, it was objected that the terms on which plaintiff was relieved from an acknowledged default, were not the subject of an appeal.</p>

Motion that the defendant be ordered to satisfy a part of the plaintiffs’ claim, which by his answer he admitted to be just. It appeared by the answer, that before answering the defendant had made to the plaintiffs .a written offer under section 385 of the code, to permit them to take judgment for the amount admitted to be due by the answer, which offer the plaintiff had declined to accept.

The defendants appealed from the judgment entered after the decision of the cause, {ante, page 492,) and then moved for the order in question. The facts appear in the decision.

<p>An affidavit to obtain an order for the arrest of the defendant in an action for malicious prosecution, must set forth the facta relied on as presumptive evidence of the want of probable cause.</p> <p>It is not sufficient to atate in general terma the existence of malice .and the want of probable cauae.</p>

<p>The facts appear in the opinion of the court.</p>

An execution upon a judgment against the defendant, Lawson, was issued to the county of Kings, in which he resided, and returned unsatisfied, and an order for his examination was thereupon made by the county judge. Upon the same day, another execution was issued to the city and county of New York, under which the sheriff had levied upon a store of goods alleged to belong to the defendant, but which were claimed by a third person as his exclusive property.

<p>Motion to correct the adjustment of costs, in a suit by the plaintiff as executor against the defendant personally, in which a verdict had passed for the defendant. Pull costs were taxed against the plaintiff, to be collected out of the estate of the testator. There was taxed in the costs, a charge for fifteen days attendance of a witness in January term, and fourteen days in February term.</p>

This was an action for a divorce a vinculo, and an application was made for the usual reference, upon an affidavit that no answer or demurrer had been received, and that the defendant had not appeared.

Complaint for trespass in entering a lot of plaintiff and blasting and carrying away rock and stone tberefrom. The answer stated that plaintiff contracted with defendant to blast off the rock and stone, to enable cellars to be made and buildings erected on the premises, and, among other things, defendant was to have the rock obtained in blasting. Defendant '’accordingly went on and continued blasting the rock by plaintiff’s direction and assent until forbidden by him.