Volume 6 — Thompson & Cook's New York Supreme Court Reports

APPEAL by defendant from a judgment in favor of plaintiff, entered upon the verdict of a jury and from an order denying a motion for a new trial. The action was brought by Anne Malone, administratrix, etc., of Thomas Malone, deceased, against Henry B. Hathaway, surviving partner of the firm of Bevier & Co., to recover damages for the death of intestate, which was caused by the falling'of a mash-tub in the brewery of said firm, where he was then employed.

APPEAL by plaintiff from an order at special term granting a new trial after a verdict at the circuit in favor of plaintiff. The action was brought by Louisa Sims against Henry B. Brown' to recover of the defendant, an attorney at law, residing and doing business as such in the State of Michigan, moneys alleged to have been received by him as attorney for the plaintiff, and which he wrongfully paid to another person after notice of plaintiff’s title thereto.

APPEAL by plaintiffs from a judgment in favor of defendants, entered upon the report of a referee.

APPEAL by the committee of Richard Beckwith, a lunatic, from an order at the special term confirming the report of a referee. Held: in trust, a house and lot which he had purchased for the use of the family in Watertown, and the‘title to which he took in his own name. These orders were granted and an account rendered, and the existence of the trust admitted.

The’ certiorari, which was a common-law one, was allowed upon • the relation of William H. Van Sickle against Henry Eldridge, a justice of the peace, before whom the proceedings were had. The objection on the part of the relator was to the allowance of certain damages to James Fitch, who owned the gypsum, etc., upon, and the right to remove the same from the land over which the highway was laid out. Sufficient facts appear in the opinion.

<p>APPEAL by plaintiff from a judgment in favor of defendants entered upon the decision of. the court on a trial without a ly.</p> <p>The action was brought by John D. Moore against William H. Brink and another as administrators of John Brink, deceased, to recover a demand due from a joint-stock association in which said John Brink was a shareholder. The facts fully appear in the opinion.</p>

APPEAL by defendants from a judgment in favor of plaintiff entered upon the report of a referee. The action was brought by Lyman' Soule against John S. Edwards, Jr., and wife, William D. Ludlow and Sarah Ludlow his wife, Albert H. Goss and Austin Sherman, to set aside the sale of lands in Wilna, Jefferson county, under the foreclosure of a mortgage, plaintiff asking the relief sought as a junior mortgagee. The facts were these.

APPEAL by plaintiffs from an order at special term denying a motion by plaintiffs for a new trial after a verdict in favor of defendant. The action was brought by Charles Marsh and another against Joshua Titus to recover the possession of a quantity of hides then in possession of defendant.

APPEAL by plaintiff from a judgment in favor of defendant, entered upon the verdict of a jury. The action was in the nature of a trespass and was brought by Amanda McNair Starr against Samuel K. Winegar, to recover for the wrongful taking and carrying away and converting to his own use by defendant of 1,000 bushels of wheat'. The facts were these: On the 30th of January, 1868, plaintiff leased a farm owned by her to defendant, for three years, from April 1, 1868.

<p>APPEAL by defendant, after a verdict in favor of plaintiff, from an order at the special term, denying a motion for a new trial on the ground of newly-discovered evidence, and also denying a motion for a new trial on case and exceptions.</p> <p>The action was brought by the First National Bank of Plattsburgh against Bufus Heaton, upon a promissory note signed by one A. D. Smith, payable to the order of defendant and indorsed by him, which, before its maturity, was discounted by plaintiff.</p> <p>The defense was that the note in question was, when indorsed by defendant, dated May 11, 1871, but that afterward, without the knowledge or consent of defendant, the date was altered to read May 16. The only fact at issue upon the trial was whether the date of the note was, as stated by defendant, thus altered or not. Evidence was given by both parties at the trial tending to establish the claim of each party. No evidence, however, of experts as to the appearance of erasures in the note was given.</p> <p>The jury found for the plaintiff. Soon after the defendant moved for a new trial, upon affidavits, on the ground of newly-discovered evidence. The evidence mentioned was that by the aid of powerful microscopes and the investigation of persons expert in using them, it would appear that there had been “ 16 ” written over “11” in the date of the note; that the defendant was not aware before the trial that that could be detected by microscopes but supposed that the “ 11 ” could not be seen, nor that it in fact appeared on the note. He also moved for a new trial on exceptions, alleging errors principally in the admission of evidence. Such other facts as are necessary appear in the opinion, and in the opinion delivered at special term.</p>

APPEAL by defendant from an order at special term overruling a demurrer to the complaint. The action was brought by Edwin Groat against Luke Phillips for a breach of covenant in several different deeds executed by the defendant and Jane Phillips, his wife. In all but one of the deeds his wife joined defendant in the covenant.

APPEAL by the defendant from a judgment ordered at special term in favor of the plaintiff. The action was brought by Jay Gould against the town of Oneonta to recover the amount paid by one David Wilber, the assignor of plaintiff, to the Albany & Susquehanna Railroad Go., for interest claimed by it to be due from defendant on its subscription to the capital stock of the railroad company.

APPEAL by defendant from a judgment in favor of plaintiff, entered upon the verdict of a jury in the Ulster county court, and from an order denying a new trial. The action was brought in a justice’s court by Martin D. Schoonmaker against Francis McEally, to recover for the loss of two horses belonging to plaintiff which were fatally injured through the negligence of defendant. The defense was contributory negligence on the part of plaintiff.

APPEAL by defendant from so much of an order at special term as upon a specified condition denied a motion by defendant for a stay of proceedings. The action was brought by the town of Delhi against James H. Graham to recover a balance of moneys belonging to plaintiff, and alleged to be in the hands of defendant as a former supervisor of said town for which he had failed to account.

MOTION by defendant for a new trial upon a case and exceptions, ordered to be heard, in the first instance, at the general term, after a verdict, in favor of plaintiff, at the circuit. The action was brought by Eliza Powell against John Powell, to recover the amount of a note made by defendant, and payable to the order of the plaintiff, which it was claimed was converted by defendant.

APPEAL by plaintiff from an order at special term removing the cause from the Supreme Court of the State of New York to . the Circuit Court of the United States for the northern district of New York, under the act of congress of 1789. The action was brought by Ira Bell against the Lycoming Eire Insurance Company to recover for a loss upon a policy issued by defendant upon machinery owned by defendant and which was destroyed by fire.

APPEAL by Dennis Holmes, administrator of the estate of Ira Dibble, deceased, and another, from an order of the district attorney of Chenango county, acting as surrogate of said county, denying an application of the appellant for an order to sell,real estate for the payment of the debts of the deceased. The order was refused upon the ground that said district attorney had no jurisdiction to entertain the application and make the order. The facts were these.

APPEAL by Andrew B. Hine from orders at special term imposing a fine upon appellant and directing his commitment until payment for a contempt. The action was brought by the Bowery Savings Bank.against Edward 0. Bichar ds, executor, etc., and others to foreclose the first mortgages upon premises in the city of Hew York.

APPEAL by defendant from a judgment in favor of plaintiff, entered upon the verdict of a jury. The action was brought by the Arctic Eire Insurance Company against Jeremiah Austin, president of the Albany and canal line of tow-boats, to recover for the loss of a cargo of corn in consequence of the negligence of the servants of defendant. The facts are fully set forth in the opinion.

APPEAL by» defendant from an order at special term denying a motion to vacate and set aside an attachment. The action was brought by Daniel Richter against Marx Wise to recover the amount of an alleged indebtedness.' The opinion states sufficient facts.

APPEAL by plaintiff from an order at special term denying an application for a receiver during the pendency of the action, and for an injunction to prevent defendants removing property from the State. The action was brought by Edmund Coffin against Richard Coke, governor of the State of Texas, and others, including said State and several of its executive officers, to recover an alleged indebtedness for commissions upon the sale of the bonds of the said State.

APPEAL by defendant from an order at chambers denying a motion to set aside an attachment. The attachment was issued upon a claim of Clinton H. Blake and another against Siegel Bernhard for goods sold and delivered. The opinion states sufficient facts.

APPEAL by plaintiff from order at special term sustaining demurrer to the complaint. The action was brought‘by James A.'Patterson against Alfred Baker, .as the director of a banking corporation of the State of Georgia, to recover for a loss upon bills of said corporation held by plaintiff. The facts are sufficiently stated in the opinion.

APPEAL by George H. Thompson from a decree of the surrogate of the county of New York refusing probate to an instrument propounded as the last will of Eliza Seastedt, deceased. The instrument ,was propounded by the appellant, and the respondents, John and Henry Stevens, .brothers of deceased, objected to its admission. The other respondent, A. F. Seastedt, decedent’s husband, upon this appeal asks that the decree of the surrogate be reversed.

<p>Evidence — expert testimony cannot be disregarded. Trial — when exception to charge sufficient</p> <p>At a trial for an assault with intent to kill, a physician had testified that cer tain facts relied upon by the defense to establish the prisoner’s insanity indicated unsoundness of mind. The court charged the jury that he placed no reliance whatever upon this witness’s testimony beyond what was due to the testimony of a sensible and honest gentleman, and that he had equal respect for the opinion of the jury who were as competent perhaps to pass upon the testimony as experts. To this the prisoner’s counsel excepted upon the ground that it was a direction to the jury to disregard the physician’s testimony. Thereupon the court responded: “ There is no more reliance to be placed upon it than upon the testimony of any other person in this case. I regard you, gentlemen of the jury, as equally skilled, and as able to decide from the evidence whether or not the prisoner was insane, as Dr. Clymer ” (the witness). Held, (1) that the charge contained in the response was error upon the ground stated in the exception, and (2) that the exception was sufficient to present the point for review and there was no necessity for its repetition.</p>

PPEAL from an order directing a writ of peremptory mandamus to issue requiring the appellant, the Hew York Benevolent Society of Operative Masons, to reinstate the relator, James Doyle, in all the rights, privileges and benefits which, under the constitution and by-laws of the society, belong to a member of it in good standing.

APPEAL by defendants from a judgment in favor of plaintiffs entered upon an order striking out the answer as frivolous. The action was brought by Thomas W. Pittman and others against the Mayor, Aldermen and Commonalty of the city of New York to recover the amount of the bill of costs, charges and expenses taxed in proceedings to open and widen 110th street in said city.

PPEAL by defendant from a judgment in favor of plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial. The action was brought by Edward Healey against the Mayor, Aldermen and Commonalty of the city of Hew York, to recover impersonal injuries sustained by plaintiff in consequence of falling into a sunken lot adjoining a sidewalk upon Forty-third street, in said city. The facts fully appear in the opinion.

APPEAL by defendants, Godfrey, from judgment entered on decision of the court at special term. The action was brought by William G. Lathrop against Marie Alice Godfrey and others to foreclose a mortgage. The facts fully appear in the opinion.

APPEAL by defendants from a judgment in favor of plaintiffs, entered upon a verdict directed by the court. The action was brought by Robert H. Fisher and others against the Mayor, Aldermen and Commonalty of the city of Hew York to recover a balance alleged to be due plaintiffs for .damages awarded.

PPEAL by defendant from order at special term,' directing the defendant to deliver to a receiver appointed under supplementary proceedings, certain letters patent and models appertaining thereto. The proceedings were instituted on a judgment recovered by Gilbert W. Barnes against William F. Morgan. The only point involved was whether a patent right could be reached by these proceedings.

APPEAL by defendant from a judgment in favor of plaintiff, entered upon a verdict directed by the court. The action was brought by Marx Harris against the Equitable Life Assurance Society of the United States upon a policy of life insurance. The facts fully appear in the opinion.

APPEAL by Henry H. Morange from an order at special term, denying a motion to set aside a precept granted for the collection of costs, ordered by the general term to be paid by the said Morange, an attorney of this court. The facts sufficiently appear in the opinion.

APPEAL by Matthew T. Brennan, late sheriff of the county of New York, from an order at special term directing his punishment for contempt. The relator, Marianna Jennys, on or about the 11th day of July, 1871, recovered a judgment in this court against her husband, John L. R. Jennys.

APPEAL by defendant from an order at special term granting motion for leave to sue on a judgment held by plaintiff, the Hanover Fire Insurance Company, against the defendant, Theodore Tomlinson. Sufficient facts appear in the opinion.

APPEAL by defendants from an order at special term allowing a peremptory mandamus. The proceedings were instituted upon the relation of Teresa A. Doyle against Andrew H. Green and others as the board of revision, etc., of assessment lists in the city of Hew York, and Thomas B. Asten and others as the board of assessors in said city to compel said board of revision to confirm an assessment list for altering the grade of a street. The facts sufficiently appear in the opinion.

APPEAL by defendants from an order at special term, continuing an injunction. The action was brought by Trust Felix Gouraud against Andreas H. Trust and another, to restrain the use by the latter of an alleged imitation of plaintiffs trade-mark.

APPEAL by defendant from a judgment in favor of plaintiff, entered upon the verdict of a jury. The action was brought by Margaret Whalen against Elizabeth A. Gloucester, to recover for personal injuries received by plaintiff from falling through a coal-hole cover, negligently out of repair, in the sidewalk in front of defendant’s premises. The opinion fully states the facts.

APPEAL by defendants from a judgment in favor of plaintiff, entered upon the verdict of a jury and from an order denying a motion for a new trial on the minutes of the court. The action was brought by George the Count Joannes against Louis J. Jennings and another to recover damages for an alleged malicious libel published concerning the plaintiff, an attorney and counselor at law, in the Hew York Times, a newspaper,, of which the defendants were proprietors.

APPEAL by defendant from a judgment in favor of the plaintiff, entered upon the verdict of a jury. The action was brought by Anna Mary Zimmerman, by her guardian ad litem, against John S. Schcenfeldt, to establish plaintiff’s title to certain real estate.

APPEAL by defendant from an order at special term overruling a demurrer to the complaint. The action was brought by Stephen D. Stephens against the Board of Education of the City of Brooklyn to recover money which had been loaned by plaintiff to one Gill upon a forged bond and mortgage, and by Gill paid to defendant. The facts fully appear in the opinion.

APPEAL by defendants from a judgment in favor of plaintiff, entered upon a verdict directed by the court. The action was brought by James Cowan against the Mayor, Aldermen and Commonalty of the city of New York, to recover an alleged- claim for extra services as clerk and assistant in the Marine Court. An appeal in a like action involving a claim of the same nature by William J. Finnegan, was heard at the same time. The necessary facts fully appear in the opinion.

<p> Criminal evidence—opinions as to motvoe for act—assault with intent to do bodily harm. Criminal law—right of person threatened with attack to defend himself. </p> <p>At a trial for an assault with a dangerous weapon, the defense was apprehended violence from the complainant. The prisoner had testified to a motion made by complainant, whereby he was led to believe that the complainant (who had struck him) intended to draw a pistol, whereupon the judge asked “ can you explain to me this thing, * * * why he should have put his hand in his pocket after giving you- three terrific licks in the face ? What was the occasion of his drawing a pistol ? ” and “ I don't see why a man, whipping you every day, that you should suspect that he would draw a pistol?” Held, that the questions were improper, as calling upon the prisoner to state a motive, for complainant’s act, and that the error, was such as to warrant a reversal.</p> <p>Although, when a person is maltreated, it is his duty to seek protection from the authorities, an omission to do so does riot deprive him of the right to defend’ himself when attacked to the same extent as if he had sought such protection. Accordingly, a charge that it was the duty of the prisoner, if he believed his life or person to be in peril from the assaults of complainant, to invoke the authorities and that all that he had to do was to make a complaint, etc., to deter complainant from the commission of any violence, was foreign to the issue, calculated to mislead the jury, and erroneous.</p>

APPEAL by the defendants from a judgment in favor of plaintiff, entered upon the report of a referee. The action was brought by Theron Merritt, as receiver of Roswell H. Sawyer, against William Scott and James A. Hoyt, as survivors of the firm of James A. Hoyt & Co., upon a judgment. Hoyt was joined as defendant subsequent to the commencement of the action. Such other facts as are material appear in the opinion.,

APPEAL by defendants from a judgment in favor of plaintiff, entered upon the report of a referee. The action was brought by John L. Brown against the Mayor, etc., of the city of Hew York, to recover upon a contract for public work. The necessary facts fully appear in the opinion.

The action was brought by John Mulialy against The Mayor, etc., of New York city, to recover for advertising for defendants in the Metropolitan Record. The facts fully appear in the opinion.

MOTION by plaintiff for a new trial upon a case and exceptions ordered to be heard in the first instance at the general term after a verdict for the defendants directed at the circuit. The action was one of replevin brought by Benjamin F. Voorhees and others against Cyrus Olmstead and others to recover the possession of a quantity of cotton. The facts fully appear in the opinion.

APPEAL by defendant from a judgment in favor of plaintiffs, entered upon the report of a referee. The action was brought by Samuel L. M. Barlow, and others, against Maria J. Myers, upon three promissory notes, altogether amounting to $3,900 and interest. The facts were these: Prior to April 3, 1871, Charles M. Randall and George P. Williams were copartners, carrying on business in the city of New York, under the firm name of Randall & Williams.

APPEAL by defendant from an order at special term, transferring the action to the Marine Court. The action was brought by William 0. De Hart against Rufus Hatch for slander. The transfer was made under the provisions of Laws of 1872, chap. 629, and Laws of 1874, chap. 545. The only question involved in this appeal was in relation to the constitutionality of the provisions of the acts mentioned authorizing such transfer.

APPEAL by plaintiffs from a judgment in favor of defendant, entered upon a verdict directed by the court. The action was brought by Charles H. Huntington and another against William' B. Dinsmore, president, etc., of the Adams Express Company, to recover for the loss of two packages of money.

APPEAL by plaintiff from an order at special term sustaining a demurrer to the complaint. The action was brought by Albert Speyers against Lucy D. Fisk, executrix, etc., of James Fisk, Jr., deceased, to recover commissions for the purchase of gold. The complaint alleged as follows : “ That at the times and dates hereinafter mentioned, the plaintiff was a gold broker, doing business at the city of Hew, York.

APPEAL by defendant from a judgment in favor of plaintiff for $527 and costs, entered on the verdict of a jury, and from an order denying a motion for'a new trial made on the minutes of the court. The action was brought by James Schonberg against Arthur Cheney, for the breach of a contract to perform a play known as “Fernande,” dramatized by plaintiff. The facts fully appear in the opinion.

APPEAL by plaintiff from a judgment in favor of defendant entered upon a nonsuit at the circuit. The action was brought by Joseph P. Mantón against John F. Cabot and others, constituting the firm of Cabot & Co., to recover commissions alleged to be due for the sale of iron by plaintiff for defendants. The facts fully appear in the opinion.

<p>Statutory construction—Laws of 1868, chapter 563, not repealed. Criminal pleading —perjury—duplicity. Criminal evidence—variance—motive.</p> <p>Chapter 563 of Laws of 1868, creating the office of Metropolitan Fire Marshal, has not been repealed, arid an indictment for perjury will lie for false swearing in any matter legitimately before such marshal.</p> <p>An indictment for perjury charged the defendant in one count of having sworn to certain false allegations in his oral testimony on the investigation of the origin of a fire in New York city, by the fire marshal, and in another count of having sworn to in substance the same allegations in an affidavit in the same proceeding sworn to before the fire marshal. Held, an authorized mode of pleading. Though a defendant may not be charged with different felonies in different counts he may be charged with the same offense in different ways.</p> <p>The indictment charged that defendant had sworn falsely in his affidavit as to several necessary and material matters contained therein “ in substance and effect following, that is to say,” etc., and set forth that he stated that there was on the premises destroyed by fire “ 60,000 ” cigars. The affidavit produced stated that there were “ 65,000 ” cigars. Held, not a material. variance. When the oath is set out “ in substance and to the effect following ” a literal copy is not required.</p> <p>Evidence on the part of the people, that the defendant, whose property was destroyed by the fire, it being insured, in his testimony before the fire marshal, stated the value of the property to be much greater than it was; held, to be admissible upon the question of motive.</p>

APPEAL by Anna K. Gilman, executrix, etc., under the last will of Hath aniel Gilman, deceased, from order of the surrogate’s court of the county of Hew York directing payment of the sum of $4,000 as compensation to Charles H. Glover as legal counsel to the executors under said will; $6,000 on account of balance agreed to be due Winthrop W. Gilman, and the further sum of $20,000 on account of his distributive share in the estate of the testator.

<p>ERROR to the New York oyer and terminer to review the conviction of George Shufflin for murder in the second degree. The facts appear in the opinion.</p>

APPEAL by plaintiff from a judgment in favor of defendants entered upon an order at the circuit dismissing the complaint. The action was brought by Jacob F. Oakley against the Mayor, Aldermen and Commonalty of the city of Hew York to recover an allowance made by the board of aldermen of said city to one George W. Betts, an assistant clerk of said board, for alleged extra services. Plaintiff brought action as the assignee of Betts. Enough facts appear in the opinion.

<p>Statutory construction — Laws of 1874, chap. 304 — Hew York city. Practice —continua/nce of action. Defense—when fwrthw' pleading not necessa/ry.</p> <p>By Laws 1874, chap. 304, the county and city of New York were consolidated for the purposes of local government, under the corporate name of “ The Mayor, etc., of New York,” and the rights, property, interests, claims and demands of the county and of the hoard of supervisors were vested in the consolidated corporation. Held, (1) to include a claim against a county officer for county moneys fraudulently received and applied, and (2) that an order in an action instituted on such claim, previous to the passage of said act, by and in the name of the hoard of supervisors of said county, continuing the action in the name of the consolidated corporation, was proper.</p> <p>Held, also, that further pleadings on the part of the defense were not essential to protect defendant’s rights from the consequences of the change.</p>

APPEAL by Mary 1ST. Townshend from an order at special term denying appellant’s petition to have a mortgage discharged of record. The proceedings were instituted under the provisions of the acts relating to the discharge of mortgages from record in certain cases.

APPEAL by defendants from a judgment in favor of plaintiff entered upon the decision of the court. The action was brought by Hannah Loder, as administratrix, etc., of Eunice Hatfield, deceased, against Hilbert J.,Hatfield and others, to recover two legacies.

APPEAL by plaintiffs from a judgment entered upon an order of nonsuit at the' circuit. The action was brought by Max Freund and others to recover the amount of a balance of deposit. The facts fully appear in the opinion.

PPEAL by defendants from an order at ,the special term reviving an action against the executors of a deceased defendant and directing it to be severed as between the executors and the other defendants thereto, and to proceed as two separate actions.

APPEAL by plaintiffs from an order at the special term vacating an injunction. The action was brought by Henry L. Butler and others, against Louisa Douai Wehle and others, to compel the allowance of a claim held by the plaintiffs against defendant Wehle, as a set-off against a judgment recovered by said defendants against plaintiffs; to restrain the enforcement of said judgment hy said defendant, and for other relief.

APPEAL by defendants from an order at the special term directing a re-adjustment of plaintiff’s costs. The action was brought by Abraham Hew against George Anthony and another for goods sold and delivered. The facts appear in the opinion.

APPEAL by defendant from a judgment in favor, of plaintiffs entered upon the verdict of a jury. The action was brought by John Gray and another against Thomas Gannon, to recover $500 and interest on the following instrument: “ New Yobk, April 28, 1869. ‘ Thomas Gannon, Esq., “ Please accept from Messrs. J. & R. J. Gray the 20 horse hoisting engine made for Messrs.

<p> Pleading —when reply not necessary —pendency of former action. </p> <p>A reply is not necessary to enable plaintiff to show that a release of the claim sued upon set up in the answer, was fraudulently procured. Accordingly, where, in an action to set aside a release for fraud, the. complaint set forth that in an action previously brought and then pending, upon the claim to which it referred, it had been set up as a defense; held, that a demurrer was properly sustained.</p>

MOTION by defendant and appellant for a 're-argument, and for leave to appeal to the Court of Appeals. The action was brought by Stephen Krom against John J. Levy to recover for work, labor and materials. The decision upon the argument of the appeal is reported 3 N. Y. Sup. 704, where a more extended statement of facts is given.

The proceedings by habeas corpus were instituted upon the relation of William M. Tweed against Joseph L. Liscomb. The respondent was warden of the Hew York penitentiary on Blackwell’s Island, the relator a prisoner confined therein. Sufficient facts appear in the opinion.

APPEAL by defendant Theron Weller from an order at the special term overruling a demurrer to the complaint. The action was brought by Howard Allison as receiver, etc., of Theron Weller, against Theron Weller and William E. Weller to set aside as fraudulent, a conveyance of real estate by said Theron Weller to the other defendant, who was his infant son. The plaintiff was appointed receiver in proceedings supplementary to execution against said Theron Weller.

APPEAL by defendant from an order at the special term overruling a demurrer to the complaint. The action was brought by Alfred M. Wiles and another against Lambert Suydam to recover an indebtedness due from the imperishable Stone Block Pavement Company oí Yew York, a corporation organized under the general act (Laws 1848, chap. 40, etc.), of which defendant was a stockholder and trustee.

APPEAL by defendants from a judgment in favor of plaintiff entered upon the decision of the court upon a special verdict of a jury, and also upon the report of a referee. The action was brought by Margaret Carroll against Elizabeth Carroll and others for an admeasurement of dower., Plaintiff claimed to be the widow of John Carroll, whom, it was alleged, died in 1872. The respondent, Elizabeth Carroll, also claimed to have been married to said John Carroll.

APPEAL by plaintiff from a judgment in favor of defendant, entered upon the report of a referee. The actions, two in number, were brought by James Fullager against Emily Reville, one to recover the damages stipulated in a contract for the sale of real estate for an alleged breach thereof, and the other to recover moneys alleged to be due from defendant to plaintiff under such contract. The actions were referred to the same reféree, and tried together.

PPEAL by Charles A. Van Sise from an order at special term affirming the report of commissioners of appraisal in the matter of the proceedings of the Long Island Railroad Company to acquire title to the real estate of said appellant, and also from the report of said commissioners. ■ The proceedings were instituted under the general railroad law.

APPEAL by plaintiff from a judgment dismissing the complaint.

APPEAL by J. Frank Phillips from an order at special term, directing the payment of money by the respondent, George Lamoree, late sheriff of Dutchess county. In October, 1867, the respondent, who was then sheriff of Dutchess county, received an execution upon a judgment recovered in New York county, by J. Frank Phillips against Henry W. Wheeler and others, who composed a firm doing business in Dutchess county.

APPEAL by defendant from a judgment in favor of plaintiff, entered upon the verdict of a jury. The action was brought by George 2ST. Cox against Theron H. Weller, for lumber sold and delivered. Sufficient facts appear in the opinion.

APPEAL by plaintiff from a judgment in favor of defendant, entered upon the report of a referee. The action was brought by Peter Riley against James H. Watson to foreclose a mechanics’ lien. Sufficient facts appear in the opinion.

APPEAL by defendant from a judgment in favor of plaintiff in the Westchester county court, entered upon the report of a referee. The action was brought by James H. Raymond against Caroline H. Hanford, to recover for work, labor and services.

APPEAL by defendant, Matthias B. Smith, from an order at special term overruling the report of a referee to determine the rights of parties claiming surplus moneys upon a foreclosure sale. The action was brought by Sidney W. Crofut against Samuel M. Wood and others to foreclose a mortgage. After the foreclosure sale there remained a surplus, which was claimed by defendants, Matthias B. Smith and Polly Gray.

APPEAL by plaintiffs from a judgment at the special term in favor of defendants. The action was brought by Marius A. Sorchan and another, trustees and executors under the last will, etc., of Jacques A. La Chaisé, deceased, against the city of Brooklyn and another, to vacate an assessment alleged to be invalid as being an apparent' lien upon lands belonging to plaintiffs’ estate.

ÁPPEAL by plaintiffs from an order at special term dissolving an injunction. The actions were brought, one by John R. Stephens and another against William F. Minnerly and others, and the other upon the relation of the same plaintiffs against the same defendants to restrain proceedings on the part of defendants to incorporate the village of North Tarrytown. The opinion states enough facts.

ÁPPEAL by petitioners from an order at special term denying a motion to vacate an assessment. There were several petitions, three by Charles H. Kalbfleisch and others, executors under the will of Martin Kalbfleisch, and one by James W. Kiernan to vacate an assessment for grading and paving Grand street in the city of Brooklyn. Sufficient facts appear in the opinion.

APPEAL by defendants from a judgment in favor of plaintiffs entered upon a decision of the court at special term. The action was brought by Merwin S. Hawley against Artemus E. Sackett, administrator, etc., of John E. Lockwood, deceased, and others, to set aside a conveyance of real estate, made by said Lockwood during his life-time, as fraudulent. In 1864, Lockwood conveyed the real estate in question to defendant Sackett, in trust for his, Lockwood’s, wife and heirs.

APPEAL by defendants from a judgment in favor of plaintiff, entered upon the decision of the court at special term. The action was brought by Emma A. Bedell against Charles W. Bedell and another to compel a re-assignment of certain mortgages to plaintiff, which were alleged to have been assigned by plaintiff under a misapprehension as to the validity of a will, resulting from false statements of defendants, and for an accounting. The facts appear in the opinion.

APPEAL by defendants from an order at special term denying defendant’s motion to change the place of trial. The defendants were Royal Sammis, Rudolph Sammis and George B. Banks. There were two indictments — one for assault and battery and one for murder in the second degree. One indictment was against Royal and Rudolph Sammis. The other against Royal Sammis and Banks.

APPEAL, by defendant from a judgment in favor of plaintiff entered upon the report of a referee. The action was, brought by William Evans against The United States Life Insurance Company, in the city of Hew York, upon a policy issued by defendant upon the life of one Charles A. Starr, in favor of one Leddell, and by Leddell assigned to plaintiff after the death of Starr. Sufficient facts appear in the opinion.

APPEAL by defendants Iremonger, from a judgment in favor of plaintiff, entered upon the report of a referee. The action was brought by John A. Nichols against Charles A. Hill and others, to foreclose a mortgage given by defendant Hill. The defendants Iremonger, subsequent to the execution of such mortgage, filed a mechanics’ lien for work done upon buildings on the mortgaged premises.

APPEAL by plaintiff and plaintiff’s attorney, and her guardian ad litem, from an order at special term directing said attorney, plaintiff and guardian to pay to respondents Purdy and Larkin $200. The action was brought by Jeannette H. Hammond by her guardian against William If. Dean to recover damages for a breach of promise of marriage. Sufficient facts appear in the opinion.

APPEAL by defendant from an order at special term sustaining a demurrer to the answer. The action was brought by the board of supervisors of the county of Kings against Anthony Walter.

APPEAL by plaintiffs from a judgment in favor of defendant dismissing the complaint entered upon the report of a referee. The action was brought by Theodore B. Gates and others against Joshua M. Whitcomb and others, to foreclose a mechanic’s lien. The facts were these : Whitcomb and Goodrich, two of the defendants, contracted to sell certain real estate in the city of Brooklyn, to Timothy R. Weeks, the other defendant.

PPEAL by defendant from an order at special term granting a motion by plaintiff for a discovery, and also from an order denying a motion by defendant for a reference. The action was brought by Theodore Miner against Thomas Gardiner, Jr., to recover for services as book-keeper, and for services in procuring for defendant a contract to build a hospital, for which it was alleged defendant promised to pay $500.

SUBMISSION of controversy without action, pursuant to section 372 of the Code. The. controversy was between Richard H. Bowne, substituted trustee under the will of Ann Haviland, deceased, and Phebe Jane Underhill and otlffers, legatees and devisees under said will.

APPEAL by the National City Bank of Brooklyn from an order of Mr. Justice Pbatt, denying a motion of appellant to set aside and vacate an order by the same justice made in proceedings supplementary to execution requiring said bank to pay to the attorney of the judgment creditor $4,384.53, out of moneys deposited in said bank to the credit of the judgment debtor in said proceedings.

The improvement was commenced under the authority of an act of the legislature, entitled “ An act to widen portions of Sackett, Douglass and President streets, and otherwise to alter the commissioners’ map of the city of Brooklyn ” (Laws 1868, chap. 631), and continued under the acts amendatory thereof (Laws 1873, chap. 710; 1873, chap. 593; 1874, chap. 588), and was completed after the passage of the last amendatory act.

APPEAL by plaintiffs from a judgment in an action tried before the court.

APPEAL by defendant from a judgment in favor of plaintiff, entered upon the report of a referee. The action was brought by the American Silk Works, a corporation formed under the laws of this State, against Israel J. Salomon, to recover for the conversion of certain personal property, consisting of steam, pipes, gas pipes and the fittings thereto.

<p> Payment—by mortgagor to mortgagee after assignment of mortgage. Evidence—failure to demand delwm'y of mortgage when paid infuU—presumption of bad faith. </p> <p>Payments on a mortgage debt to the mortgagee by the mortgagor in good faith and without notice of an assignment of the mortgage held valid as against the assignee.</p> <p>The assignee of a mortgage had permitted the mortgagee to receive the pay» ments of principal and interest upon the mortgage. Held, that an omission on the part of the mortgagee to require a delivery up of the mortgage and accompanying bond when completing the payments, would not raise the presumption of bad faith.</p>

APPEAL by defendant from an order at special term denying a motion to set aside the service of the summons herein. The action was brought by George W. Barnett against the Chicago and Lake Huron Railroad Company, a foreign corporation created under the laws of Michigan, Indiana and Illinois.

APPEAL by plaintiff from an order of the Putnam county court directing a return by the sheriff of an execution, and staying all proceedings upon a judgment. The action was brought in a justice’s court by Henry S. Baldwin against. Lawrence Barrett, to recover damages for fraud in an exchange of horses and the purchase of a cow. Plaintiff obtained judgment for $135, and costs. An appeal was taken to the county court by defendant, but no undertaking was given.

APPEAL by defendant from a judgment in favor of plaintiff entered upon the verdict of a jury. The action was brought by Peter Boos against The World Mutual Life Insurance Company, upon a policy of life insurance issued by defendant upon the life of Valentine Boos, the father of the plaintiff. The insured died in Germany in February, 1873, of tubercular consumption. The policy was issued in March, 1870.

The plaintiff in error was, jointly with his brother, indicted for the murder of Matilda Hujus, who was, on the 19 th of April, 1874, in the evening, while engaged in social conversation in her own house, shot and instantly killed by some person standing outside of such house. The prisoners elected to be tried separately, and the plaintiff in error was convicted upon circumstantial evidence.

APPEAL by plaintiffs from an order at special term denying an application for a mandamus. The proceedings were instituted upon the relation of Obadiah Wells against the Board of Audit of the Town of Hempstead, to compel defendant to audit an account of relator against said town for moneys paid out for counsel fees and expenses in an action brought for the benefit of said town. The facts were these.

APPEAL by plaintiff from a judgment in favor of defendant dismissing the complaint entered upon the report of a referee. The action was brought by George W. Platt against William A. Parker and another, upon two promissory notes indorsed by defendants. Sufficient facts appear in the opinion.

MOTIOK by defendant for a new trial upon case and exceptions ordered to be heard in the first instance at the general term after a verdict for the plaintiff directed by the court. The action was brought by Thomas Truesdell against Henry Booth, to recover for rent of premises leased by said Truesdell to defendant.

APPEAL by Christopher Mooney, one of the defendants, from a judgment in favor of plaintiff, entered upon the report of a referee. The action was bro'ught by Henry Day against Christopher 'Mooney and others, to foreclose a mortgage. The appellant was the holder of another mortgage on the same premises. The mortgage given to the plaintiff was for advances to be made on a building contract.

MOTION, by plaintiff for a new trial upon case and exceptions ordered to he first heard at the general term, after a nonsuit at the circuit. The action was brought by Theodore B. Gates against Amos F. Eno, upon an instrument drawn by one Skiff/ directing defendant to pay plaintiff $500, and which, it was claimed, was accepted by defendant. The facts fully appear in the opinion.

APPEAL by plaintiff from an order dismissing the complaint in an action tried before the court without a jury. The action was brought by Isaac S. Smith, executor, etc., of Mary W. Smith, deceased, against Frederick W. Starr, upon a guaranty of a bond and mortgage.

MOTION by plaintiff for a new trial after a nonsuit at the circuit upon a case and exceptions ordered to be heard in the first instance at the general term. The action was brought by George Leary against Albert 0. Wood-ruff, to recover for damage done to a barge through the alleged negligence of defendant.

APPEAL by defendants from a judgment in favor of plaintiff entered upon the report of a referee. The action was brought by Francis H. McCotter against Andrew Lawrence, executor, etc., of Abraham R. Lawrence, deceased, and others to enforce the specific performance of a contract for the sale of real estate.

APPEALS by defendants from judgments in favor of plaintiffs entered upon the decision of the court. The actions were brought — one by John T. Gallup against William R. Babsen and another, and the other by William R. Wells against Isaac S. Holbrook and another, to enforce mechanics’ liens. Enough facts appear in the opinion.

MOTION by defendant for > new trial upon exceptions ordered heard in the first instance at the general term after a verdict for the plaintiff at the circuit. The action was brought by Patrick Quinn against Walter Carr and others, to recover the difference between the guaranteed price of a quantity of produce sent by plaintiff to defendants to be sold, and the price actually received. Sufficient facts appear in the opinion.

APPEAL by defendant from a judgment, in favo! of plaintiff, for $4,000 damages, besides costs, entered upon the verdict of a jury, and from an order denying a motion for a new trial upon the minutes. The action was brought by Henry Peck against the defendant to recover damages for the wrongful ejection of plaintiff from defendant’s cars. Pending such-action said Peck died, and Norman Cox, the executor under his last will, was substituted as plaintiff.

APPEAL by plaintiff from an order at the special term granting a new trial after a verdict for the plaintiff. The action was brought by Leah J. Ingersoll, as administratrix, etc., of Jqhn Ingersoll, deceased, to recover damages caused by the defendant running over and killing plaintiff’s intestate, negligently. The answer set up a special denial and contributory negligence on the part of intestate.

APPEAL by defendant from a judgment in favor of plaintiff entered upon the verdict of a jury, and from an order denying a motion for a new trial upon the minutes. The action was brought by Elizabeth Ludlow against the Hudson River Railroad Company, to recover for damages to the land of plaintiff by the same sliding down and caving in, by reason of an excavation made by defendant. Sufficient facts appear in the opinions. The case has been twice tried.

MOTION by plaintiff for a new trial upon case and exceptions, ordered to be heard in the first instance at the general term, after a verdict for defendant at the circuit. The action was brought by Aaron D. Fenton against Christopher S. Robinson upon a promissory note for $200. The plaintiff was a Iona fide holder of the note, having acquired it for value before maturity.

APPEAL by defendants from, a judgment ordered at the special term upon the report of a referee. The action was brought by Mary Kate Sullivan, an infant, by her guardian ad litem, against Mary Sullivan and Thomas Sullivan, to compel a partition or sale of certain premises situated in the city of Troy, and judgment was rendered for a sale of the premises and division of the proceeds.

<p>MOTION by defendant for a new trial upon case and exceptions ordered to be heard, in the first instance, at the general term, after a verdict at the circuit for $5,000 in favor of plaintiff.</p> <p>The action was brought by John M. Peck to recover damages alleged to have been sustained by being forcibly removed from one of defendant’s cars by an employee-of defendant. The jury found a verdict in favor of the plaintiff for $5,000.</p>

APPEAL by plaintiff from a judgment in favor of defendant, entered upon the report of a referee. The action was brought by William P. Baken, as surviving partner of the firm of Gillen & Baken, against Eunice 0. Harder, to recover for goods sold and delivered. Sufficient facts appear in the opinion of Mr. Justice Danfobth herewith given. The action was tried before a referee, who found in favor of plaintiff.

APPEAL by defendant from a judgment in favor of plaintiff, entered upon the report of a referee. The action was brought by James Weir against Gertrude Groat, to recover for groceries and provisions sold by plaintiff to the defendant. She is a married woman, having a separate estate, and living with her husband and children, for whom the husband ordinarily provides. The husband had been buying on credit of plaintiff, until the plaintiff would not trust him any longer.

APPEAL by defendant from a judgment in favor of plaintiff, entered upon the verdict of a jury. The action was brought by John S. Slingerland against Erasmus Bennett to recover for a fraud of defendant in putting off upon the plaintiff a promissory note of $500 against one Houck, which proved uncollectible. On the trial plaintiff, who was sworn as a witness on his own behalf, was asked these questions, oh the direct examination, with reference to one Moss Slingerland.

APPEAL by defendant from a judgment in favor of plaintiff entered upon the report of a referee. The action was brought by Rensselaer R. Moore against John McCarthy, to recover rent alleged to be due. Sufficient facts appear in the opinion.

APPEAL by plaintiff from a judgment in favor of defendant entered upon the report of a referee. The action was brought by Calvin L. Hathaway against Edwin W. Howell, to recover the possession of personal property. Sufficient facts appear in the opinion.

APPEAL by defendant from a judgment in favor of plaintiff entered upon the verdict of a jury in. a county court. The action was brought by Elijah Beatty against Augustus Myers to recover damages for slander. Sufficient facts appear in the opinion.

APPEAL by,defendant from a judgment in favor of plaintiff in the Greene county court. The action was brought by Casper Clow against John I. Van Loan, in a justice’s court, to recover penalties for running a tollgate on a turnpike. The answer was a general denial; payment; that action was not properly brought in the name of plaintiff; that defendant was exempt from paying toll; that plaintiff was not entitled to maintain the action, and no cause of action existed.

<p>APPEALS by plaintiff from orders at special term striking out the complaints in four actions.</p> <p>The actions were brought by Anthony Blaisdell, one against Daniel Whiteford, one against Fletcher B. Story, one against John G. Williamson, and one against Hannah Edget, to recover rent .payable, in the first three actions, in wheat; in the last, in pounds, shillings and pence. The leases were all executed by one Levi Blaisdell; that in the first action dated January 1, 1833, to one Ebenezer Smith; that in the second action dated June 28,1821, to one Thomas Place; that in the third action dated May 9, 1801, to Davis Secor; and that in the fourth action dated March 1, 1792, to one Henry Edget. The summons in each action was under the second division of section 129 of the Code, for relief. The complaint in each case alleged that the premises described in the lease had been, ever since its execution, occupied and possessed under said lease or indenture by the party of the second part, his heirs and assigns, including the defendant, and alleged the death of Levi Blaisdell,- the devise of the demised premises to his son Fletcher, the death of Fletcher Blaisdell and the devise by him of the same premises to his son, the plaintiff, the default in payment of the rent and the value of the rent in arrear, and prayed judgment for such alleged value and interest, and for other or further relief and'costs.</p> <p>The notice of motion in each case was to set aside the complaint on the ground that the same is “ for a' cause of action arising on contract for the recovery of money only and under- subdivision one of section 129 of the Code, and the summons is for relief under the second subdivision of said section, and in case the court shall refuse to strike out said complaint,” to strike out the prayer for a money judgment in the complaint, and to make the complaint more definite and certain.</p>

APPEAL by plaintiff from a judgment of nonsuit in a county court, and from an order of said court denying a motion for a new trial. The action was brought in a justice’s court by Lucy Beau against Antoine Kiah to recover for work, labor and services. The plaintiff was a married woman, living with and keeping house for her husband. Defendant was her father. In 1867 and 1868, plaintiff’s mother and sisters were sick at defendant’s house.

APPEAL by plaintiffs from a judgment in favor of defendant, entered upon a verdict directed by the court and from an order denying a new trial. The action was brought by Henry C. King and another against Michael Galvin, to recover the value of goods alleged to belong to plaintiffs, and taken by defendant as sheriff upon an execution against one Phillips. Plaintiffs purchased a store of goods of Phillips valued at $6,000.

CERTIORARI upon the relation of Chauncey Kilmer and others . to A. J. Cheritree and others, commissioners for appraisal of damages, etc., upon opening and laying out Union avenue in Sara-toga Springs, and to the town clerk of the town of Saratoga Springs, for the purpose of reviewing such proceedings. • The proceedings were had under the provisions of Laws 1870, chapter 623, a's amended by Laws 1872, chapters 293 and 500, and Laws 1874, chapter 200.

APPEAL by defendant from a judgment in favor of plaintiff entered upon the verdict of a jury and from an order denying a new trial. The action was brought by Martin Cole against Matthew Van Keuren, to recover damages for an alleged trespass on plaintiff’s land. The defendant owned a farm, between which and a road, plaintiff’s lands were situate.

APPEAL by defendant from a judgment in favor of plaintiff entered upon a decision of the court. The action was brought by John E. Putnam as executor, etc., of Bichard L. Allen, deceased, against Lucinda W. Schuyler, upon a guaranty by defendant of two promissory notes made by one Katherine S. Henriques, and payable to the order of plaintiff’s testator. Sufficient facts appear in the opinion.

MOTION by defendants to dimiss an appeal by plaintiff from an order at special term sustaining a demurrer to the complaint. The action was brought by the Ogdensburg and Lake Champlain Railroad Company against the Vermont and Canada Railroad Company and others to obtain an adjudication as to the legal validity of a lease from plaintiff to- defendant, and if it shall be declared invalid to have the same canceled and the leased property delivered up.

PPEAL by defendant from a judgment in favor of plaintiff entered upon the verdict of a jury,* and from an order denying a motion for a new trial. The action was brought by William Townsend to recover damages for the wrongful ejection of plaintiff from a train on defendant’s railroad, The case has been twice tried. TJpon the first trial a judgment was rendered in favor of plaintiff for §500. This was reversed by the Court of Appeals and a new trial ordered.

APPEAL by plaintiff from a judgment at the circuit dismissing the complaint. The action was brought by Jacob Ominger to recover damages for personal injury sustained by being run into by a locomotive upon defendant’s railroad. The plaintiff was a mason, and at the time of the accident, engaged in working upon a cattle-guard at a road-crossing. He was in the service of a firm of contractors employed by defendant to do the work upon which he was engaged.

APPEAL by plaintiff from a judgment in favor of defendant entered upon the report of a referee. The action was brought by Clinton Taplin against Abraham Wilson to recover the value of personal property alleged to have been wrongfully converted by defendant. The plaintiff married Mary Ann, a daughter of the defendant. She died childless, in October, 1870. After her marriage the defendant furnished her certain articles of bedding, and gave her money to buy furniture.

APPEAL by defendant from a judgment in favor of plaintiff entered upon the verdict of a jury. The action was brought by George P. Kirk against H. Wilson Blashfield, for work, labor and services. The only question involved was in relation to costs. Sufficient facts appear in the opinion.

<p>APPEAL by plaintiff from a judgment of nonsuit at the circuit.</p> <p>The action was brought by Isaac W. Thompson against Merritt W. Clark, to recover damages for the alleged wrongful use and occupation of premises claimed by defendant. Sufficient facts appear in the opinion.</p>

ÁPPEAL by Janet A. Lathrop, executrix of and devisee under the last will and testament of Jessie Dunlop Empson, deceased, from a decree of the surrogate of Albany county refusing to admit such will to probate. The respondents who opposed the admission to probate are Robert Dunlop and others, heirs at law and next of kin of the deceased. Sufficient facts appear in the opinion. .

APPEALS by defendant from judgments in favor of plaintiffs entered upon the decision of the court. The actions were brought, one by John L. Weismer and the other by Robert Halsey against the village of Douglas, to recover the amount due on certain coupons attached to bonds issued by the defendant. They were tried at special term without a jury, and a decision was given for the plaintiff in each. The defendant appeals. The same questions arise in each action.

APPEAL by defendant from a judgmént in favor of plaintiff, entered upon the verdict of a jury and from an order denying a motion for a new trial. The action was brought by Franklin 0. Clemons against Washington Davis to recover'damages for false imprisonment. Plaintiff 0 was an itinerant vendor of medicine, and called at defendant’s house in Ithaca to sell his goods.

APPEAL by defendant from a judgment in favor of plaintiffs entered upon the report of a referee. The action was brought by Horace Kellogg and another against George Witherhead to recover the value of a quantity of hams destroyed by fire. Plaintiffs were engaged in the business of smoking hams. Defendant was a grocer, whose store was near by that of plaintiffs. He had, previous to the winter of 1873, purchased smoked hams of plaintiffs.

APPEAL by plaintiff from a judgment of the county court reversing a judgment in favor of1 plaintiff rendered in a justice’s court. The action was brought by Edward K. Townsend against David M. Brundage to recover damages for injury done to plaintiff’s grass and apples by defendant’s cattle. Enough facts appear in the opinion.

APPEAL by plaintiff from a judgment of nonsuit at the circuit. The action was brought by Elizabeth Hawks against George W. Swett and others, to recover of defendants certain royalties or license fees for the use of certain letters patent, claimed to be due plaintiff by virtue of a written agreement to pay the same. The defense was that the covenant to pay royalties was void for want of consideration.

APPEAL by plaintiff from a judgment in favor of defendant upon a verdict directed by the court. The action was brought by William E. 'Marston against George W. Swett and others to recover royalties for the manufacture of a patented article. The facts are similar to those in the case of Hawks v. Swett, ante, page 529. The plaintiff in this action and defendants were assignees in common of the letters patent from Elizabeth Hawks, the plaintiff in the case referred to.

APPEAL by plaintiff from a judgment m favor of defendants entered upon a decision of the court at special term. The action was brought by Edmund H. Watkins against Timothy D. Wilcox and others, trustees, etc., of the First Congregational Church, of Ithaca, to have a church edifice and parsonage given to the control of a minority of a church congregation.

APPEAL by defendants from a judgment in favor of plaintiffs entered upon the report of a referee. The action was brought by Adam W. Kline and others against Walter Bauendahl and others. Sufficient facts for an understanding of the point passed upon appear in the opinion. ;

The perjury charged was in making an affidavit to a claim against the city of Buffalo for repairs made upon a certain sewer in said city. The plaintiff in error had received directions to repair a number of sewers from the city engineer, and subsequently presented at the engineer’s office bills for such repairs. One of the sewers was designated as the “ Georgia street sewer,” and the account presented for labor and material thereupon amounted to $162.54.

APPEAL by plaintiff from a judgment of the Ontario county court reversing the judgment of a justice of the peace in favor of plaintiff in summary proceedings. The proceedings were instituted by Elon G-. Carpenter against Thomas Green and another, to recover possession of premises leased by plaintiff to defendants. .

The action was brought by Kendrick Blanchard against Lucretia Blanchard and others, to obtain the partition of certain real estate, which had been owned in his life-time, by one Reuben Blanchard, who died in March, 1873. The deceased left a last will containing these provisions. “•Second.

APPEAL by plaintiff from a judgment of the Ontario county court affirming a judgment of a justice’s court in favor of defendant. The action was brought by George W. Wood against Robert Shultis to recover damages for the breach of, a contract. The complaint • alleged that plaintiff agreed to sell defendant forty-five standing trees on plaintiff’s land, in consideration of which defendant agreed to dig a ditch for plaintiff. The agreement was verbal.

APPEAL by Solomon L. Simpson from an order at the special term denying a motion to set aside a judgment. The motion was made by the plaintiff in a judgment recovered by Solomon L. Simpson against Thomas F. Burch to set aside a prior judgment against the same defendant, recovered by John Clarke and others.

APPEAL by defendant from a judgment in favor of plaintiff entered upon the verdict of a jury and from an order denying a motion for a new trial. The action was brought by Martin J. Yincett against Christian Cook to recover for injuries received by plaintiff while passing along a public street in Syracuse by the accidental falling upon him of a wall of a brick building belonging to defendant. The defense was that a violent wind blew the wall over.

<p>Easement — right of wag. Evidence —presumption of adverse user—declarations of privy. Deed—when svdgect to equities between grantor and third party.</p> <p>Where the owners of adjoining lots make a way between them, each setting off an equal portion of land for that purpose, and they and their grantees continue to use it in common as a way for twenty years, the reasonable inference is that such use is under a claim of right, and adverse.</p> <p>B. who claimed a right of way over the land of D., after D. had contracted to sell the land to S., of which contract B. had actual notice, obtained from D. a conveyance, without consideration of the right of way. Held, that unless there was an existing right of way the conveyance from D. to B. was subject to the equities between D. and S.</p> <p>S. conveyed his right to plaintiff. In an action by plaintiff, in which the right of way was involved, held, that declarations of S. concerning the way was competent to prove notice to S. of the claim of B. to such right.</p>

APPEAL by defendants from a judgment in favor of plaintiff, entered upon the verdict of a jury, and from an order denying a new trial. The action was brought by James S. Marsh against John A. Dodge and others to recover royalties claimed to be due under an agreement in writing between plaintiff and defendants. Sufficient facts appear in the opinion.

APPEAL by defendant from an order at special term refusing to set aside a bill of costs allowed plaintiff upon a judgment against the defendant. ■ The judgment was recovered in an action brought by William G. Butler against the. city of Rochester, for work and materials furnished on a contract for the erection of an embankment wall.

<p> Fraud—when creditor cannot home relief against fraud of debtor. </p> <p>Where a party has been privy to and assented to a transaction which may be treated as fraudulent as to creditors he cannot impeach it on that ground. Accordingly, where H., with the knowledge and consent of S., used moneys borrowed by him of S. to erect a building on the property of his wife; held, that the property of the wife Was not liable for such indebtedness of H.</p>

APPEAL by plaintiff from a judgment dismissing the complaint in an action tried by the court without a jury. . The action was brought by Samuel D. Colie against James Jami-son, to recover damages for trespass in tearing down a fence ereóted by plaintiff, and to enjoin further trespass of the- same kind. In 1867, defendant and one Gallagher, who owned certain lands in the city of Buffalo, conveyed to plaintiff a portion of the same.

<p>MOTION by defendant for a new trial upon case and exceptions ordered to be heard in the first instance at the general term, after a verdict in favor of plaintiff at the circuit.</p> <p>The action was brought by John N. Dorris, as receiver of the Buffalo Fruit Preserving Company, to recover the sum of $3,000 upon a written instrument signed by the defendant, with other persons, of which the following is a copy:</p> <p>“ Buffalo Fbuit House Association".</p> <p>“ We, the undersigned, hereby agree to unite in the formation of a joint-stock or incorporate company for the purpose of purchasing the exclusive right to make, use and vend Nyce’s patent for preserving fruit or other products out of season, in Erie county, N. Y., and of erecting a building after the plan of said patent, with a capacity of about twenty thousand (20,000) bushels, and of stocking the same with fruits to be preserved; said building to be built so as to be ready for use by the 1st day of February, 1866. And for such purpose we mutually agree to pay to the treasurer appointed by said company the amount set opposite our names in the following manner: Fifty per cent on demand, twenty-five per cent on completion of the building, and .twenty-five per cent whenever called in by said company. The capital stock of said company shall be.$100,000, divided into 1,000 shares of $100 each, with, the privilege of increasing the same to $200,000. As soon as $60,000 of the stock shall be subscribed, said company may organize under the'laws of this State, and do such other acts as are necessary for an early prosecution of the business for which such company is formed.”</p> <p>This instrument was signed by defendant and others in October, 1865. On the 31st of that month ten of the subscribers to it, including defendant, executed and acknowledged the papers necessary under the statutes to form a corporation, which were filed November 1, 1865. An investment was made in property,, and the business of the corporation was for some time carried on. On the 8th of September, 1871, by the judgment of a competent court the corporation was dissolved, and plaintiff was appointed receiver of its effects.</p> <p>The defendant set up as defenses fraud in obtaining his subscription, and that the stock had been disposed of to other parties. Such other facts as are material appear in the opinion.</p>

APPEAL by defendant from an order denying a new trial after a verdict in favor of plaintiff. The action was brought by James H. Milliman against the Few York Central and Hudson River Railroad Company to recover damages for personal injuries.

<p> Execution—easement owned by corporation liable to sale under. </p> <p>A right granted to a corporation to enter upon lands of another and construct a dyke and excavate a canal, held, liable to sale under execution upon a judgment against such corporation.</p>

MOTION by defendant for a’ new trial upon a case and exceptions ordered to be heard, in the first instance, at the general term after a verdict for plaintiff at the circuit. The action was brought by Cornelia Van Allen against The Farmers’ Joint-Stock Insurance Company, upon a policy of insurance against loss by fire issued by defendant.

APPEAL by defendant from an order at the special term sustaining a demurrer to the answer. The action was brought by the Seneca Eation of Indians against George Hammond.

APPEAL by defendants from a judgment in favor of plaintiff entered upon the decision of the court. The action was brought by Hannah JVBell against George Warn and others, executors of the last will and testament of John Warn, deceased, to recover a legacy.

APPEAL by defendant from a judgment in favor of plaintiff, entered upon a decisión of the court. The action was ejectment, brought by Anson H. Becker against George Howard and another to recover the possession of certain lands.

<p>Common carrier — may contract against liability from negligence.</p> <p>The plaintiff shipped by defendant’s railroad on the 4th of March perishable ' property liable to.be destroyed by freezing. At the time of shipment he executed a release to defendant from liability for loss or “ damage to perishable property of all kinds occasioned by delays from any cause or change of weather, or loss or injury by fire or water, heat or cold.” Held, that the defendant was relieved from liability for a loss by freezing occasioned by the negligence of defendant’s servants.</p>

APPEAL by defendant from, á judgment in favor of plaintiff, entered upon the verdict of a jury.

APPEAL by defendants from a decree or judgment rendered at the Onondaga special term.

MOTION by defendant for a new trial upon exceptions taken at the circuit and ordered to be heard at the general term in the first instance, after a verdict in favor of plaintiff. The action was brought by William H. Grimes against Joseph Hillénbrand and another, upon a promissory note of $500 made by one of the defendants and indorsed by the other. The indorser alone defended.

<p>MOTION by defendant for a new trial, on exceptions taken at tbe circuit and ordered to be heard at the general term in the first instance, after a verdict for plaintiff.</p> <p>The action was brought by Caroline W. Camp against Ashbel H. Barney to recover for personal injuries received by the plaintiff, while she was being transported from the town of Brocton, in this State, to the town of Corry, in the State of Pennsylvania, upon a railroad between said places operated by the defendant. The plaintiff recovered a verdict at the circuit of $1,250. The defendant was operating and managing said railroad as a special receiver in bankruptcy, duly appointed by the District Court of the United States for the northern district of New York, of the Buffalo, Corry and Pittsburgh Railroad.</p>

APPEAL by defendants from a judgment in favor of plaintiffs entered upon the report of a referee. The action was brought by John W. Shumway and others, executors, etc., of Isaac Shumway, deceased, against Harvey L. Harmon and others, upon two undertakings executed by defendants to stay proceedings in an action by the plaintiffs in this action against Isaac G. Shumway and others. Sufficient facts appear in the opinion.

<p> Mistake—moneys paid under mutual mistake of fact may be recovered bach. </p> <p>Plaintiffs purchased land of defendant at a fixed price per acre. By a mistake of the surveyor the land was computed to be several acres more than it really was, for which excess plaintiffs paid, both parties believing the survey to be correct. Held, (1) that plaintiffs were entitled to a return of the excess paid ; (2) that it was not necessary, in order to do justice, to rescind the contract; and (3) that a subsequent sale by defendant of other lands to another party, at a price less than he would have obtained, if the mistake had not been made, did not affect the plaintiffs’ right to recover.</p>

<p>APPEAL by defendant from a judgment in favor of plaintiff entered upon the report of a referee.</p> <p>The action was brought by Ransom P. Alger against Willard Johnson to recover for work, labor and materials furnished in the construction of a building. Plaintiff was a builder. In May, 1870, one Baker applied to plaintiff to do work upon a building which was being erected by Baker, who informed plaintiff that the pay for his work was coming from defendant. Plaintiff refused to work for Baker and defendant subsequently saw plaintiff and told him to do whatever Baker ordered upon the building. Plaintiff in accordance with this direction did work and furnished materials, for a portion of which Baker gave orders on defendant, which were paid. Baker died in September, 1870. In May, 1870, Baker assigned his interest in the lands upon which the building was erected to defendant to secure such sums as defendant should advance or loan to Baker, and defendant afterward became the absolute owner thereof.</p>

<p>Municipal corporation — liability for injury from negligent defect in sidewalk.</p> <p>A sudden slope of six inches in three and a-half feet, made by the direction of the city authorities, in a sidewalk, having a grade of three-quarters of an inch to a foot, held, to be dangerous so as to render the city liable for injury to a person, caused by slipping upon the slope when covered with enow.</p>

APPEAL by defendant from a judgment in favor of plaintiff entered upon a decision of the court. The action was brought by the Syracuse, Phoenix and Oswego Railroad Company against R. Nelson Gere, upon a check given by defendant upon a subscription for stock in plaintiff. Sufficient facts appear in the opinion.

APPEAL by Eugene Forman, a creditor of the estate of Henry Laivrence, deceased, from a decree of the surrogate of Onondaga county, denying the petition of the appellant praying an accounting by Elijah C. Lawrence, surviving administrator of said estate, and one of the respondents. Sufficient facts appear in the opinion.

APPEAL by defendant Koon from an order denying a new trial after a judgment in favor of plaintiff upon a verdict directed by the court. The action was brought by George B. Boomer against Lewis E. Koon and another upon a promissory note made by said Koon. Sufficient facts appear in the opinion.

APPEAL by plaintiffs from an order at special term sustaining a demurrer to the complaint. The action was brought by Evander S. Van Liew and another, administrators, etc., of Elhanan Van Liew, deceased, against Stephen Y. R. Johnson and others. The complaint set forth, as causes of action, that one of the defendants, Halsey Sandford, who was largely indebted to the estate of the intestate, made an assignment to two of the defendants, S. Y. R. Johnson and John 0.

APPEAL by plaintiff from a judgment in favor of defendants entered upon the report of a referee. The action was brought by William W. Wright against Sylvester P. Pierce, and others, for the wrongful taking and conversion of personal property. Sufficient facts appear in the opinion.

MOTION by defendants for a new trial after a verdict in favor of plaintiff, directed by the court. The action was brought by William J. Dounce against Benjamin F. Dow and others upon a promissory note made by defendants. Sufficient facts appear in the opinion.

APPEAL by defendant English from a judgment on the report of a referee. The action was brought by Levi Hotchkiss against Nathan English and others, upon a promissory note made by one J. 0. Cummings, payable five months after date, for $350, to the order of English and Perine, two of the defendants. The defendant English alone defended and appealed from the judgment.

APPEAL by defendant from a judgment in favor of plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial. The action was brought by Nathaniel S. Gilbert against the New York Central and Hudson River Railroad Company to recover the value of eleven casks of cider alleged to have been delivered by plaintiff to defendant and received by it at its depot at Lockport for the purpose of transportation to the city of New York.

APPEAL by defendant from a judgment in favor of plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial. This action was brought by Henrietta A. Harwood against Nathaniel Keech, to recover damages for slander. The complaint alleged that defendant charged plaintiff, who was a school teacher in the district where defendant resided, with being a woman of unchaste character.

PPEAL by the petitioner from an order at special term dismissing the petition of the Hew York Central and Hudson River Railroad Company for the appointment of commissioners to ascertain and appraise the compensation to be made to the respondents, James Sweeney and others, as owners of certain real estate sought to be acquired by the petitioner. Sufficient facts appear in the opinion.

The proceedings were instituted upon the relation of the Oswego Canal Company against the city of Oswego and said assessors. Sufficient facts appear in the opinion.

APPEAL by defendant from a judgment in favor of plaintiff, entered upon the verdict of a .jury, and from an order denying a motion for a new trial made upon the minutes of the court. The action was brought by William K. Place against George Greenman, to recover commission on the sale of a ship. Sufficient facts appear in the opinion.

APPEAL by plaintiff from a judgment in favor of defendant, entered upon the report of a referee. The action was brought by Andrew Smith against the Mayor, etc., of the city of New York to recover damages for an injury to plaintiff’s goods, caused by the overflow of a sewer. Sufficient facts appear in the opinion.

APPEAL by defendants from a judgment in favor of plaintiffs, entered upon the report of a referee. The action was brought by Hervey Rockwell and another, as surviving executors of the will of Charles O’Neil, deceased, against Florence Geery and others, heir at law of, and devisees under, the will of Isaac Geery, deceased, to recover out of the real estate of defendants, devised or descending from said Isaac Geery, the amount of a debt due from said Isaac Geery.

APPEAL by defendant Wright from a judgment in favor of plaintiff, entered upon the report of a referee. The action was brought by Charles H. Smith against George S. Wright and others, for work done upon a contract. Sufficient facts appear in the opinion. Defendant Wright alone appeared.

<p>La/reeny—obtaining possession by trick—distinction between larceny and obtaining property by false pretense. Evidence — like acts to prove intent.</p> <p>The prisoner, a dealer in jewelry, sent a memorandum order to B"., another jew eler, for six pairs gold bracelets. The order was designed and understood to be an application for the articles to enable prisoner to sell some of them to a customer, and that he should return the articles unsold, and the money for such as were sold. Held, that the title to the articles until sold remained in K., and the appropriation of them to.his own use by prisoner was larceny.</p> <p>The difference between such an act and the obtaining of property by means of false pretenses consists in the circumstance, that in the latter- the owner intends to part with his title with the change of custody, while in the former no such intention exists.</p> <p>Evidence on the part of the people that on the same and next day the prisoner, on like orders, procured jewelry, which he failed to return, from other dealers besides K.; held, admissible to show felonious intent.</p>