Volume 60 — Barbour's New York Supreme Court Reports

DEMURRER, to complaint. The complaint sets forth the death, on 8th of June, 1860, of Alida M. Benson, probate of her will in Cook county, Illinois—her place of residence—August 7, 1860 ; its probate in Monroe county, December 4, 1869.

THIS is an appeal from an order made by the judge before whom the action was tried, granting a new trial upon a case and exceptions. The motion was made, also,' upon the ground of surprise and newly discovered evidence. The action was for fraud charged to have been committed by the defendant, upon the plaintiff in the sale to the latter, of lands in the State of Michigan.

THE plaintiff in this case owned a farm that was incumbered by himself, by mortgage, which was duly foreclosed, and the premises bid in by one Jabez E. Ward, the attorney of the mortgagee, for $2400, which was less than its true value. Ward agreed, orally, with the plaintiff to let him have the farm back on the payment of said sum of $2400, and $20, added for expenses, and gave him, the plaintiff^ a certain time to procure the money or security for that purpose.

THIS action was on a promissory note dated March 31, 1868, made by the defendants Moot and Ansted, for the payment of §1500 to the order of the defendant•Kilham, at the Oneida Valley National Bank, six months from date, with use. The defense was usury—an agreement by the plaintiff to loan the money to Moot for a bonus o-f §40.

MOTIOS for a new trial, on exceptions directed to be heard in the first instance at a general term, and on an appeal by the defendant from an order denying a motion for a new trial upon the judge’s minutes.

THIS action was brought to recover for a breach of contract, or to recover back the consideration paid upon the purchase of a dwelling house, the possession of which the plaintiff claims should have been delivered by virtue of the contract, made between the parties in April 1868. This was the substance of the complaint.

THIS is an action brought by Miranda L. Allen against .0. 0. Underwood, and H. W. Brown, the sheriff of Otsego county, for the purpose of obtaining .a perpetual, injunction restraining the defendants from interfering with her possession of certain land in Otsego county.

THIS was an action for malicious prosecution, and is an appeal from an order denying a new trial, and also from the judgment entered in this action in pursuance of said order. The case was tried at the Tompkins circuit, and resulted in a verdict for the plaintiff for $75.

TIIHE plaintiff Joslin and one Gay were, on or before the I 17th October, 1866, the owners of a quantity of wool, which was in the hands of H. Rankin & Co. of Troy, as their factors, for sale. And on that day one .Mayo, as the agent of the firm of Alden, Frink & Weston, bought of said Rankin & Co. about 10,000 pounds of such wool at 60 cents per pound.

THIS is an appeal from the order of the surrogate of Washington county dismissing the plaintiff’s complaint. The plaintiff, by his complaint, asked for an order to supersede the defendant, and to enjoin her from further acting as. executrix of the will of her deceased husband; and for such other order in the case as should tend ■ to the security and due administration of the said estate.

THIS action is brought by the plaintiffs, as judgment creditors of the defendant John Campbell, to set aside certain deeds of real estate, situate in the city of Elmira, made by him to the defendant Schuyler C. Beynolds, and by said Reynolds to the defendant Rose Campbell, the wife of said John, on or about the 25th day of' January, 1867, and recorded in the clerk’s office of Che-mung county, February 22, 1869, on the ground that the same were fraudulent and void,-as against…

The petition of Daniel Johnson and Joseph Dunlap, presented to the surrogate, set forth that Hester Kinne, of Ovid, Ontario county, departed this life about the 12th of September, 1866,. having previously made and executed her last will and testament; and that said petitioners were named as executors. The petition prayed for the proper citations to the heirs of the deceased, to the end that probate of the said will might be duly granted to the said petitioners.

<p>In order to avoid an act on the ground of menace of arrest or imprisonment, it ■ must appear that the menace was of an unlawful imprisonment, and that the party was put in fear of such imprisonment, and was induced by such fear to do the act in question.</p> <p>It is not such menace as will avoid an act, if the party is only menaced by a lawful imprisonment.</p> <p>Where the defendant, at the time of making a promissory note, was not under arrest or imprisonment, but was at his residence in this State, where he had committed no criminal offense for which he could be arrested or imprisoned; having made, at most, as was alleged by the' payee, only some fraudulent representations in respect to the value of land upon which he had a mortgage that he had sold to the payee of the note; which sale, and the representations that induced it, were made in the State of Illinois; it was held that as there was no ground for the defendant’s arrest, in either State, on a criminal charge, or for his being taken to Illinois in any criminal proceeding for such fraud, a threat of such an arrest constituted no defense to an action upon the note.</p>

1XHIS action was brought to recover indemnity for a loss . of property by fire, which property was covered by a policy issued by the defendant to the plaintiff, on the 1st of February, 1867, to the amount of $2000, for the term of three years from the last named day, upon the following property; Upon his dwelling house, .... 66 household furniture, . . , . ... 300 66 wearing apparel, .... ... 100 66 barn and shed, . . . . , . ... 600 66 hay and grain, ..... ... 200 66 live…

John Cassidy claimed to recover from the city of Brooklyn compensation for serving as clerk of one of the justices’ courts in that city under statutes referred to in the opinion of the court. It appeared that he was nominated by James Lynch, the justice of the sixth district, as clerk of the court of that district, and that the board of aldermen, to whom the nomination was communicated, approved the appointment by a vote of eighteen in favor of it, and none opposed.

PPBAL by the defendant from an order made at a special term, setting aside a judgment recovered in an action brought by a wife to recover the alimony awarded to her by a decree for divorce obtained against the husband, in the State of Ohio. The facts appear in the opinion.

ACTION to enjoin the defendants'from the use or-imitation of the firm name of the late firm of A. Bininger & Co., in which all the parties had been partners. The firm had beeomé insolvent and been dissolved, and a receiver appointed, and an assignee in bankruptcy.

THIS was a motion by the defendants to set aside a judgment in an action for the foreclosure of a mortgage, and all proceedings subsequent to the service of the summons. The facts are stated in the opinion.

PETITION, under the act of 1858, (Laws o/1858, ch. 338,) to vacate an assessment for paving Sixth avenue, from Forty-second street to Fifty-ninth street, in the city of New York, with Nlcolson pavement.

MOTIOY to set aside an order confirming the report of the commissioners of estimate and assessment appointed for the opening of “Morningside Park” in the city of Yew York, so far as it related to the five lots hereinafter mentioned, and which were taken for said park; and also for an order directing the said commissioners to make the awards for said.lots to Patrick Callaghan or unknown owners.

APPEAL by the defendant from an order made at special term, reducing the amount of the appraisal, for damages sustained by the defendant by the taking of a portion of his land by the water works company for laying its pipes.

APPEAL by the plaintiffs from a judgment entered upon the report of a referee. The action was brought upon two promissory notes given by the defendants in. part payment of the price of ten tons of-axe cast steel, purchased by them of the plaintiffs.

APPEAL by the plaintiff from a judgment in his favor, entered upon the report of a referee. The action was brought to recover the value of three model mowers, made by the plaintiff for. the defendants. On the 2d day of May, 1868, the defendants, who were partners, wrote to the plaintiff, asking him if he could make some mower models for them, and stating that they must have three or four at once.

Calvin B. Dibble, Barzilla G. Worth, and George M. Dewey, entered into an agreement with Calvin B. Camp, by which the former agreed to sell the latter a quantity of cotton. A part of the cotton having been destroyed by fire, while the process of delivery was going on, a controversy arose as to whether the delivery was complete, and entitled the sellers to full payment.

Motion to dissolve an injunction. An injunction was granted in this action restraining defendant from giving musical and dramatic entertainments of the nature described in the opinion.

<p>Benevolent and Charitable Associations.— Mandamus.-</p> <p>The consent and approbation of a justice, required by the general law for the incorporation of benevolent societies (Laws of 1848, ch. 319), as a condition precedent of filing the certificate, is not conclusive upon the secretary of state, nor upon the court, upon the question whether an association, as its objects are stated in the certificate, is within the purview of the statute.</p> <p>A corporation cannot he formed under that act to provide a “relief fund,” and “to aid persons of moderate pecuniary resources in obtaining from a respectable insurance company insurance on them lives, and in maintaining the necessary payments on the same, and to secure to families of persons so insured an immediate advance of funds in case of death.”</p> <p>In general, associations for lending money, however excellent the objects, are not within the statute.</p>

THIS was an action for the partition or sale of certain lands in the village of Norwich, N. Y, consisting of a block of stores, certain other buildings, and other lands suitable for village building lots, in all about twelve acres of land. The title was iu question, depending upon the construction to be given to the will of William Spier, deceased. The plaintiffs demanded a construction of the will, a partition or sale of the land, and aii accounting for rents received.

APPEAL by the defendant from a judgment rendered against him, upon a verdict, at the circuit. The action was brought to recover the sum of $874.92, with interest from J une 1, 1868, being the amount alleged to be due on a certain note made by the defendant, and delivered to the plaintiff, which she could not produce, for the reason that the defendant had wrongfully possessed himself of and withheld it from the plaintiff.

The action was brought to teeover damages for injuries to the plaintiff’s horse, harness and carriage, by reason of the defendant’s negligence.

<p>A testatrix, being seised and possessed of certain real estate, devised the same to her son, H. 0., with the following proviso or condition, viz : “This devise is made on the express condition that the said H. 0. removes to, and resides on said land, and makes it his permanent home, which he must do within two years after my decease. If he fails to do so within that time, I hereby authorize áhd empower my executors to sell the said real estate on such terms as they may deem proper, convert the same into money, and pay over, the avails, one half thereof to the Domestic and Foreign Missionary Society of the Protestant Episcopal Church * * * and the other half of said avails they" shall pay over to The American Board of Commissioners for Foreign Missions.” At the time of the death of the testatrix, H. C. resided at San Francisco. In December, 1865, he disposed of his property in California, for the purpose of going to reside on the premises in question and making them his permanent home. Within two years after the death of the testatrix, viz: about the 1st of February, 1866, he, in good faith, for the purpose of making them his permanent hpme, went into possession of, and resided upon the premises, with his family, until about the 1st of April, 1866, when, his wife becoming discontented, he changed his mind of continuing to reside on the premises, and consented to, and did, in the spring and early summer of 1866, return with his family to California, where he had ever since resided; leaving, however, a tenant in the occupation of the premises.</p> <p>Held that when H. C. so took possession of the premises and commenced to reside thereon in good faith, with the bona fide intention of making the same his permanent home, in full accordance with the condition imposed by the testatrix, the title vested, absolutely, in him; and by such act the condition was fulfilled and forever discharged. And that his subsequent removal from the premises did not operate to defeat that title.</p> <p>According to the settled rule of equity, a mortgagee cannot, in an action to foreclose his mortgage, call in as parties, persons claiming in hostility to the title of the mortgagor, and have the legal title adjudged in the equitable action. The question of legal title is a question of law, and to be determined in an action of ejectment, at law.</p>

ACTION of ejectment. On the 20th day of November, 1846, the defendant John W. Benton, and Lewis J. Benton, his brother, who were heirs at law of Roger Benton, the former owner of a certain farm situate in the town of Arcadia, in the county of Wayne, entered into a mutual partition and division of said farm, between them, Lewis J. taking what was termed the mill property, and the defendant, John W., taking that portion of the premises called the farm.

<p>The expenses of actions commenced or defended by the trustees of a school district, without a previous resolution of the district, and for which expenses, notwithstanding the want of a previous resolution, an assessment may be made upon the district by a vote of the inhabitants at a district meeting, or on appeal from their refusal, to the county judge, under sections 9 and 10 of title 13 of the act of 1864, “ to revise and consolidate the general acts relating to public instruction,” do not embrace penalties, which are expressly excluded from the operation of section 8.</p> <p>It is only cases arising under section 8, which the county judge may review on appeal taken and heard as provided in sections 9 and 10.</p> <p>Hence an appeal does not lie to the county judge from the refusal of a' school district meeting to vote a tax to reimburse a trustee for the costs and expenses of an action brought by him, against a pupil, to recover the penalty imposed by the 3d section of said title, for disturbing the school.</p>

APPEALS from orders made at a special term in Monroe county, denying a motion of the defendant, in each action, to dismiss the complaint. The motion was for an order directing the discontinuance of these actions, with costs to be paid by the attorneys, on the ground that they were brought without the authority of the nominal plaintiff. The first action was for five coupon bonds of the United States, of $1000 each, alleged to have been deposited with the defendant.

APPEAL by the defendant from a judgment in favor of the plaintiff, entered upon the verdict of á jury. . . The action was brought to recover damages for the seduction of the plaintiff’s daughter and servant.

The “J. M. Hurd Paper Bag Co.” was formed in Hovember 1865, at the city of Auburn, for manufacturing purposes, under the act of 1848, with a… Held: and resolutions passed, dissolving the corporation, for the reasons and by the authority stated in said resolutions. The referee found that at the time of said dissolution, the total liabilities of the company amounted to $55,483.19, and the good assets and cash of the company was $3125.72, leaving a deficiency of $52,257.49.

THIS action was brought by the plaintiff, as receiver, duly appointed in proceedings supplementary to execution, upon judgments separately recovered by two creditors, to wit: Hiram Palmer and Henry B. Smith, against the defendant George H. Mitchell, to set aside certain transfers of both real and personal estate from the judgment debtor, the said George H. Mitchell, to one Isaac Lawson ; and from the latter to the defendant Cornelia B. Mitchell, who is and then was the wife…

The action was brought by the plaintiff, as the assignee of a judgment recovered by himself and George P. Isham 'and Henry P. Isham against the defendant Henry Schafer, to have the said judgment declared a lien upon certain premises, the title to which was in the defendant Eunice Schafer.

APPEAL by the plaintiffs from a judgment entered upon the report of a referee. This action was brought by the plaintiffs, in their official capacity, to recover the penalty inflicted by statute, for a failure by the defendant to remove his fences, alleged to he encroachments upon a public highway.

APPEAL by the defendant from an order made at a special term, denying a motion to vacate and discharge the judgment entered in this action. On the 30th of November, 1870,. the plaintiffs obtained a judgment in this court against the defendant, for $1050 and costs.

APPEAL by the defendant from a judgment of the county court of Lewis county, affirming the judgment of a justice of the peace. The judgment rendered by the •justice was in favor of the plaintiff, for $41.89, damages and costs. The material facts are stated in the opinion of the court.

<p>The plaintiff, on being applied to by W. to purchase a bond and mortgage given to W. by the defendant, declined purchasing, but agreed to take the same to .sell, as a broker for the mortgagee, for a compensation agreed upon. The securities were thereupon assigned to him, by W., to enable him to negotiate and transfer a title to a purchaser, and for no other purpose, except that out of the avails of the sale he should retain enough to pay and satisfy a judgment he held against W., and release a levy. But after having obtained the assignment, he refused to sell and assign the bond and mortgage, but claimed to retain the same as his own property, without paying W. anything, and refused even to satisfy the judgment, or to release the levy.</p> <p>Seld, 1. That the plaintiff had obtained no title to the securities which he could enforce against the mortgagor; and that in an action of foreclosure brought by him, the mortgagor could set up as a defense that he had paid the mortgage debt to the mortgagee, and taken a discharge from him.</p> <p>2. That the plaintiff had acquired no right to, or equity in, the bond and mortgage, even to the extent of his judgment, which must be deemed to be satisfied by the levy, While the levy remained.</p> <p>Fraud avoids all contracts, and transfers, of title, into which it enters, at the election of the party defrauded.</p> <p>Sx dolo malo non oritw actio is a maxim of very wide, if not universal, application. It applies even to the holder of commercial paper, and more strongly ■ to assignees of choses in action.</p>

MOTIOH to compel a purchaser (Mr. Martin) to complete his purchase of certain lots sold under the judgment in this action. The property was ordered to be sold under a judgment in partition. Objections were made to some defects in the proceedings, and on account of the supposed existence of a will of John Mullanphy, made in 1830. This will was admitted to probate in Missouri, but had never been proven here. It was said to be lost, and the witnesses were dead.

<p>MOTION to continue action, after the death of the plaintiff.</p>

<p>In order to obtain an account of the personal estate which came to the hands of an administratrix—she being dead—her personal representatives are indispensable parties.</p> <p>Persons in possession of land sold under an order of the surrogate, to pay the testator’s debts, are interested in having the representatives of the deceased administratrix made parties, to the end that it may be established, if possible, that debts of the testator were unpaid, at the time the order of the surrogate to sell was made.</p> <p>In a bill to redeem, an offer to pay whatever may be found due upon the mortgage, or a tender of the amount which the plaintiff concedes to be due, are indispensable. Without one or the other of these, the complaint does not set forth a cause of action.</p>

<p>Where an ordinance of the common council of the city of New York directed an avenue to be curbed and guttered, and the sidewalks to be flagged, without directing that new flagging should be used; Keld that it was no objection to the assessment that a part of the old flagging was relaid, and the old curb reset, the expense of the labor, only, being charged.</p> <p>Nor is it an objection to the assessment that the lots are charged for the work done, opposite each lot, while the expenses are charged on all the property, per foot, equally.</p> <p>Although the street directly in front of a lot may not require much expense to bring it to the grade, still the lot may be very much benefited by the grading beyond it; and the assessors are to judge of the extent of such benefit. Per Ihgbaham, J.</p> <p>The objection that more than one lot, owned by the same person, is included in one assessment, is not a valid ground for vacating the same; provision being made for apportioning the amount upon each lot, if necessary; although it would be better to assess each lot by itself.</p>

<p>When objections are made by a person assessed, to an assessment for a local improvement in the city of New York, and are disallowed by the assessors, it is the duty of the assessors to present such objections, with the assessment, to the board of revision, for the purpose of enabling that board to correct the errors, if any, of the assessors.</p> <p>And an omission by the assessors to submit such objections to the board of revision is an “ irregularity” in “ the proceedings relative to an assessment,” within the meaning of the statute of 1858, in relation to “ frauds in assessments for local improvements in the city of New York,” {Laws of 1858, oh. 338, § 1,) which authorizes an application to a judge of this court, to vacate the assessment.</p>

APPEAL by the plaintiff from a judgment entered upon the report of a referee, dismissing the complaint, with costs. The action was brought to recover damages for a personal injury claimed to have been sustained by the plaintiff in consequence of the negligence of the defendant, in not causing a crosswalk in the city of Lockport to be repaired. The facts are fully stated in the opinion of the court.

APPEAL by the defendant from a judgment of the county court of Onondaga county. The action was commenced in a justice’s court, where the plaintiff recovered a judgment for $140 damages. On appeal to the county court, the jury found a verdict in favor of the plaintiff, for $150. The material facts are stated in the opinion of the court.

MOTION by the defendant for a new trial, on a case and exceptions. ■ The defendant, under the act of the legislature of May 9, 1867, amending the act of April 23, 1862, “to prevent animals from running at large in the public highway,” (Laws of 1867, eh. 814, p. 2036,) on the 13th of July, 1869, seized a colt belonging to the plaintiff, of the value of $150, which was trespassing upon his private inclosure.

APPEAL by the defendant from, a judgment of the county court of Jefferson county, affirming a judgment rendered by a justice of the peace. The action was commenced in a justice’s court.

APPEAL, by the defendants, from a judgment rendered at a, special term. On the 3d of February, 1863, the defendant Banker recovered a judgment against Martin Kraft, also a defendant, for $442.21, which was, on the same day, docketed in the office of the clerk of the city and county of Kew York. On the 18th of June, 1863, the defendant Reeve also recovered a judgment against said Kraft, for $305.06, which was docketed in the same office.

THIS action was brought by the plaintiff, an infant, by her guardian, to recover for the value of seventeen sheep, which were taken by the defendant, who was a constable, by virtue of an execution issued upon a judgment recovered in a justice’s court against one George Hasbrouck. The judgment and execution were fair on their face, and no question was raised as to their validity; and the property was regularly advertised and sold.

<p>Where the charter of a city gave to the common council the power to. cause streets, alleys and avenues to be opened and widened, and to be regulated, graded and paved, and from time to time to be repaired or regraded, and provided that “ the expense of all new work or improvements and alterations not in the nature of ordinary repairs, shall be assessed and be a lien upon the property benefited, when completed, in sections or as a whole, and so certified to the comptroller, by the local assessorsand the common council, by resolution, directed the city engineer to establish the grade of an avenue, from one specified point to another, at an expense not exceeding $2500, and directed the proper authorities to advertise for proposals for grading said avenue; Held that the latter clause of the above provision required the expense of the work in question to be assessed upon the property directly benefited thereby, and not upon the property of the city at large; tile work contemplated being “ new work,” within the meaning of the charter, and not in the nature of “ ordinary repairs.”</p> <p>Held, also, that to justify a general tax upon the property of the city for a work or improvement in the nature of that proposed, two things were required by the charter: 1st. The work must not be new. 2d. It must be only an ordinary repair.</p>

IB these cases two applications ' had been made for receivers, and both had been granted. In White v. The Mariposa Company, the first application was made on the 4th of March, 1870, and after two or three adjournments, a stipulation was agreed to by the counsel for both parties, that the hearing should be adjourned to such time as either party might desire to bring the same on, upon one day’s notice. This was in October, 1870.

APPEAL by the plaintiff from a judgment entered at a special term, on the verdict of a jury, in his favor, for $47, a smaller amount than was claimed by him. The action was brought by the plaintiff, the mortgagee named in a chattel mortgage executed by the defendant, to'recover a balance claimed to be still due thereon. The mortgage was given to secure the payment of $200, with interest, stated to be borrowed money.

THIS was an appeal by the plaintiffs, from a judgment entered on the decision and report of a referee, dismissing the plaintiffs’ complaint. The action was to determine the equitable rights of the parties in certain lands, which were subject to the lien and operation of a judgment recovered against Russell Martin.

This was an action against husband and wife, to recover judgment against the husband, and to charge the separate personal estate of the wife with the payment of a note signed by both. The action is an equitable action, and seeks to enforce the charge as a lien upon specific property, which the complaint describes.

APPEAL, by' the defendant, from a judgment of the county court of Allegany county. The action was brought to recover for the use and occupation of land, and was originally commenced in a justice’s court.

HABEAS CORPUS to admit to bail. This proceeding was taken .under section 19 of the statue, (2 B. S. 765, § 19, Edm. ed.,) which provides for the issuing of a writ of habeas corpus after sentence, where a writ of error, with a stay of proceedings on the judgment, has been allowed with a view to let the prisoner to bail.

APPEAL by the defendant from a judgment entered upon the verdict of a jury. The action was brought to recover damages for the alleged negligence and malpractice of the defendant, as a physician and surgeon, in the setting and treatment of a dislocated arm of the plaintiff. The jury rendered a verdict in favor of the plaintiff for saring in evidence, and the legal exceptions taken at the trial, are le opinion of the court. ■

MOTION by the plaintiff to set aside an inquisition in an action for assault and battery, in which the plaintiff obtained a verdict for six cents damages.

The prisoner was tried and convicted in that court in June 1871, upon an indictment charging him with the offense of arson in the first degree.

APPEAL, by the plaintiffs, from the order of the county court of Cattaraugus county, setting aside a judgment for the plaintiffs, rendered on the report of a referee, and directing a new trial. The facts appear in the opinion.

APPEAL by the defendant from a judgment of the county court of Jefferson county, affirming a judgment of a justice of the peace. The facts were substantially as follows: A boy by the name of Hintermyre, who was in the employ of the defendant’s father, purchased a ticket in one of those fraudulent lotteries known as gift enterprises, purporting to be carried on by Ferguson & Company, in the city of Hew York.

<p>In a case where it can be claimed that there is a doubt as to what a word, letter or figure, contained in an instrument, was intended to be, extrinsic" evidence is admissible upon'the question, and does not infringe upon the general rule that parol evidence is not admissible to change or explain a written instrument; the object of the inquiry being to ascertain what the language of the instrument in fact is, and not to give it a construction.</p> <p>Although the question whether the dispute is to be determined by the court, or by the jury, does not necessarily arise in an action tried before a referee, performing the office of both court and jury, yet the sensible rule is, that the question is one of fact, for the jury; and such is the weight of authority.</p> <p>When the question is about a figure, in the year of payment of a promissory note, the testimony of the person who drew the note, as to what the figure was intended to be, and that at the time of the making of the note the figure in question was read to the maker, as a cipher, is admissible.</p> <p>In such a case, the reading of the note to the maker is part of the res ¿ and proof of it admissible for that reason,'</p>

<p>The defendants owned and operated two tracks between Syracuse and Rochester, upon different routes, one of which (the Aulurn route) was longer than the other, and upon which forty-five cents more was charged, for passenger fare, than was charged upon the shorter route (via Palmyra.) The plaintiff purchased a ticket at Syracuse, for Rochester, which had, upon the face of it, the words “ via Palmyra,” paying therefor the lesser fare, and got upon a train bound for Rochester, by the Auburn route. Upon exhibiting his ticket, the conductor told him that he was on the wrong train; that he could not go to Rochester on that train unless he paid forty-five cents more; and that the ticket would carry him to F. (the next station,) and no further. The plaintiff said he expected to go through on that train, and would not pay any more. The conductor thereupon marked the ticket, with his punch, and returned it to the plaintiff. He again came to the plaintiff and asked him if he was going to pay the additional forty-five cents, and being answered in the negative, he told the plaintiff he must get off at F., and on arriving there, ordered the plaintiff to leave the train, and upon his refusal, put him off the cars, as he was required to do, by his instructions.</p> <p>In an action to recover damages for such ejection, the referee reported in favor of the plaintiff, on the ground that the conductor, instead of punching the plaintiff’s ticket, should have expelled him from the cars upon discovering that his ticket was by the other route, and his refusing to pay the additional fare.</p> <p>Held, that this was erroneous. That the conductor was under no obligation to the plaintiff to eject him from the cars, at any time before he should arrive at the point to which he was entitled to travel, on his ticket, so long as he persisted in remaining on the train.</p> <p>That the plaintiff having taken this train through his own fault or inattention, his voluntary continuance upon it, after being fully notified of the consequences, must be deemed an election, on his part, to abide by the regulation of the company, since it was one lawful and proper to be made and to enforce.</p>

, deceased. Calvin Huson, Jr., was the son of Calvin Huson, who resided in Yates county, and who, on the 27th day of May, 1867, made and executed his will, and afterwards a codicil thereto.

APPEAL, by the defendant, from a judgment rendered on the report of a referee. The facts are stated in the opinion of the court.

MOTI03ST for judgment on a verdict taken subject to the opinion of the court at general term. The action was to recover the amount of a promissory note for $1250, at three months from date, made by the defendants December 31, 1866, to the order of the Washington Marine Insurance Company, and. by the payee indorsed to the plaintiff.

APPEAL by the defendant from a judgment entered on the report of a referee. The action was for goods sold and delivered.

APPEAL by the defendant from a judgment entered upon the verdict of a jury. The action was brought to recover damages for injuries suffered by the plaintiff in being struck with the pole of the defendant’s sleigh, and run over, through his negligence. On the 6th day of January, 1865, the plaintiff was a passenger in the Eighth avenue railroad car. The end of the route is at the corner of 125th street and Eighth avenue.

ÁPPEAL by the defendant Drew from a judgment entered upon the report of a referee. The plaintiff, in April 1866, recovered a judgment in this court against the New Jersey Steam Navigation Company, a common carrier of goods and passengers, for $836.32, damages and costs, for the value of her trunk, lost by the negligence of said company.