Volume 61 — Barbour's New York Supreme Court Reports

APPEAL by the defendant from an order appointing a receiver, before answer or judgment. The action was commenced by the plaintiff as a stockholder of the above company, to procure a dissolution, on the ground that the corporation had suspended its ordinary and lawful business for one year. (2 B. S. 464, § 38.

APPEAL, by the plaintiffs, .from a judgment entered upon the report of a referee. The action was commenced to recover of the defendants, as common carriers, the value of a lost case of merchandise, owned by the plaintiffs, and which the defendants undertook to carry from the city of New York to Maysville, Kentucky, at the rate of $1.51 per hundred pounds.

<p>This court, at general term, can not only entertain an appeal from an order granting alimony, but may order a reference to ascertain a suitable amount to be allowed.</p> <p>A decree for' divorce should not direct the payment, by the defendant, of arrears of alimony. The plaintiff should be left to enforce the payment of the alimony previously ordered, in the usual way.</p> <p>Where the defendant’s property, over and above the debts owing by him, amounted to but $12,550; SM that alimony to the amount of $600 annually was full as much as should have been allowed to the plaintiff.</p>

<p>A promise, made by an individual, upon a valid consideration, to pay money to a third person, will sustain an action by the latter, in his own name, against the promisor.</p> <p>The defendant, in consideration of goods sold and delivered to him by a firm of V. & M., agreed with them to pay the plaintiff’s firm a specified sum, being a debt due from V. & M. to them. Held that the plaintiff, being the owner of the 'claim, might recover thereon, against the defendant.</p> <p>The bare omission, by an insolvent debtor, applying for a discharge under the insolvent laws of Massachusetts, to set forth a particular debt, in his petition, will not vitiate the discharge, where the omission is admitted to have been neither willful nor fraudulent.</p> <p>Where a commissioner of insolvency in Massachusetts, having acquired jurisdiction of the case, adjudged that the insolvent had assigned his estate for the benefit of his creditors, according to the provisions of the insolvent law of that State, and had in all things conformed to the directions of such law, and discharged the insolvent from his debts; Held that the record in Massachusetts must be deemed conclusive here.</p>

<p>In an indictment for perjury charged to have been committed on the trial of a cause before the court or an officer thereof, it is essential, 1st. That the name of the court should be stated, and that such court should have a legal existence; 2d. That the offense should be charged to have been committed in the county in which the indictment was found; and," 3d. That it should appear on the,face, or be alleged in the body, of the indictment, that the evidence on which the assignment of perjury is based was material to the determination of the issue, or at least proper to be offered on the trial of such issue.</p> <p>Where an indictment alleged that the action, upon the trial of which the perjury was charged to have been committed, was pending in the “ Supreme Court of the city of New York,” and that the referee who administered the oath was appointed by the “ Supreme Court of the city and county of New York;” Held that the indictment was faulty in matter of substance.</p> <p>So, where it nowhere appeared, in the indictment, that the offense, if any, was committed within the city and county of New York.</p> <p>Where it was alleged, in the indictment, “ that it then became and was a material issue to be tried 'before W. 0. T. whether the said J. G. had committed adultery, as alleged by the plaintiff in the said action,” but it was nowhere alleged that the evidence adduced, or the questions calling out that evidence, were material to the determination of that issue, no information being given as to what was “ alleged by the plaintiff in the said actionHeld'that the indictment was fatally defective.</p>

APPEAL by the defendant from a judgment entered upon the report of a referee. The action was brought for the conversion of certain bonds. The referee found the following facts, viz : That on the 7th of February, 1860, Alfred B. Seymour was the owner and possessed of four bonds of the Long Dock Company, a corporation organized under the laws of the State of Eew Jersey. Such bonds were each given for the sum of $1000, and were numbered respectively Eos. 100, 154, 205 and 207.

<p>APPEAL, by John S. Sutphen, from several orders, or judgments, made in this matter at special term, by the Hon. George G. Barnard, Justice, and dated respectively on the 11th day of July, 1871, on the 19th day of July, 1871, and on the 21st day of July, 1871, and from each of said three judgments, or orders severally, and from each, and every part of each, of said several judgments, or orders, by which order, dated the 11th day of July, 1871, the report of the commissioners herein was confirmed, with certain exceptions, and as to those exceptions sent back to be corrected, by awarding certain additional sums of money to persons designated by said justice; and by which order, dated the 19th day of July, 1871, the order of the 11th day of July, was amended j and by which order, dated the 21st day of July, 1871, the report of the commissioners, as amended under the orders made on the 11th and 19th days of July, was confirmed.</p> <p>The following opinion was delivered by Justice Barnard, at special term, on making the order of July 11, 1871.</p> <p>Geo. G. Barnard, J. The objections to the confirma-. tion of the report of the commissioners, with but two exceptions, hereafter noted, were principally directed to the awards made by the commissioners for the property taken in this -proceeding, though these objections were presented under various forms, involving questions as to the value of the riparian rights of owners of upland lots, or the reversionary interests of the adjoining proprietors in the streets laid down upon the map of 1807.</p> <p>The commissioners seem to have meted out to all these parties substantial justice, and to have considered these questions in making their final awards, leaving only the naked question as to the amount of the award. Upon this point the decision of the commissioners is final and conclusive, having all the effect of a verdict of a jury, and the court will not interfere in this respect. (Matter of Furman street, 17 Wend. 649. Matter of John and Cherry streets, 19 id. 659. Matter of Pearl street, Id. 651. Matter of William and Anthony streets, Id. 678. Matter of Bushwick avenue, 48 Barb. 9. Matter of South Seventh street, Id. 12.) It is only where some erroneous principle, or rule of valuation, has been adopted, or some 'mistaken view of the law governing the rights of the parties in interest, has controlled their action, that the court will send back the report for correction. (Matter of Central Park extension, 16 Abb. 56. Matter of Commissioners of Central Park, 51 Barb. 277.) It seems to me quite clear that such a mistake has been committed by the commissioners in their action in regard to the Bloomingdale road, and the land lying within the boundaries of the old' Twelfth avenue. In the latter case the commissioners have failed to make any awards, in some instances for a part, and in other instances for the whole of the property so situated, though it appears that awards were originally made for some of this identical land. ■ By the report it is conceded that the title to this strip of land is in the adjoining owners, and the enclosing of the same within the boundary lines of the adjoining lots, without increasing the awards, is substantially taking private property without making just compensation therefor, and therefore comes within the constitutional prohibition.</p> <p>In regal’d to Bloomingdale road, it was admitted on the argument that this is an old road, originally laid out without compensation, (Act of June 19th, 1703,) the title to which is presumptively in the owners of the adjoining land, with a right of way, only, in the public, and that on the discontinuanceoof the road, the same belongs to the adjoining owners, in fee simple absolute, (Gidney v. Earl, 12 Wend. 98. Hooker v. Utica &c. Turnp. R., Id. 377. Jackson v. Hathaway, 15 John. 441. Matter of Central Park extension, 16 Abb. 56. 3 Kent's Com. 557.)</p> <p>I think it cannot be seriously questioned, that under the act of 1867, this road was closed, and-that the fee of the same is now discharged from any easement in favor of the public. The map of the commissioners, closing the road, was filed in October, 1868, and the title to the same will not vest in the city until the confirmation of this report, during all of which time the adjoining owners have been seised of' the land lying within the road. Again, it ceases to be a public road when used for a park. (Matter of Central Park extension, 16 Abb. 56.) By these proceedings the fee of the road, and not a mere easement, is to be acquired. (Laws of 1867, ch. 567, act of 1813, &c.) The commissioners have, however, treated the matter as if the Owners had a mere reversionary interest in the road, instead of a fee, and have awarded only a nominal' amount to unknown owners, for the fee.</p> <p>I have gone over, with great care, the awards made for the property adjoining the Twelfth avenue and Bloomingdale road, and have calculated the amount which would be a just and equitable compensation for the portion of the Twelfth avenue and Bloomingdale road above referred to, and affected by these proceedings, adopting as a basis, the values fixed by the commissioners, and taking into consideration the increased awards made for the Bloomingdale lots, and the substantial awards made in some cases for a part of the old Twelfth avenue.</p> <p>The report will, therefore, in accordance with the views above expressed, be confirmed as to all other matters, and will be sent back to the same commissioners with instructions to revise the same, by increasing, the awards of the following persons, who are affected in these two respects, by the amounts set opposite their names :</p> <p>H. W. T. Mali, for his interest in the fee of old Twelfth avenue and Bloomingdale road, $11,025. "William R. Roberts, for his interest 'in the fee of old Twelfth avenue and Bloomingdale road, $19,950. James De Peyster, for his interest in the fee of old Twelfth avenue, $2700. Peter Cooper, for his interest in the fee of old Twelfth avenue, $5000. John H. Power, for his interest in the fee of old Twelfth avenue, $5000. George H. Peck, for his interest in the fee of old Twelfth avenue, $2500. Andrew Carrigan, for his interest in the fee of old Twelfth avenue and Bloomingdale road, $14,735. John H. Power and Lewis J. White, for their interest in the fee of old •Twelfth avenue and Bloomingdale road, $17,625. Unknown owner, for his interest in the fee of old Twelfth avenue, $9020. Eli White, for his' interest in the fee of old Twelfth avenue and Bloomingdale road, $12,050. The Post estate, for their interest in the fee of old Twelfth avenue and Bloomingdale road, $102.900. David F. Tie-" mann, for his interest in the fee of old Twelfth avenue, $4950. The estate of Kennaday, for their interest in the fee of Bloomingdale road, $6250. The Society. of the New York Hospital, for their interest in the fee of the Bloomingdale road, $5500.</p> <p>Ho re-assessment will be necessary in order to carry into effect these directions, as the commissioners have still ample power to assess upon the mayor, aldermen and commonalty, a sum sufficient to make, necessary corrections.</p> <p>The objections which might be raised to an entire review of the report, on account of delay, will be thus obviated, as the necessary alterations can be made immediately, and when these are made, substantial justice-will be done to all parties; the interests of the public will be protected, and the report will then be confirmed.</p> <p>Let the commissioners file their amended report next Tuesday, and an order be entered in conformity with these suggestions.</p> <p>The commissioners made a supplemental -report, dated July 20, 1871, as directed by the order of July 11th, in which they stated that in making this addition to their previous report, and thus increasing some of the awards for damages which they heretofore made, the commissioners desire hereby to record the fact that the act is not the result of their deliberation or judgment. They believe that they adopted the proper rule, and made full and adequate compensation to all parties, in and by their previous report; and their present action is not of their own volition, but simply the performance by them of what they regard, under the order of the court, as merely a clerical duty. They yield obedience to the order of the court, but deem this explanation proper, so that it may not be supposed that the increase of awards has.the sanction of their official oaths. It has not.”</p> <p>The report of the commissioners, as amended, was confirmed by the order dated July 21, 1871.</p>

APPEAL, by the defendants, from a judgment entered upon the report of a referee. The action was brought by the plaintiff, the only son and heir of David D. Marvin, deceased, to set aside a deed executed by said David D. Marvin and Mary Augusta, his wife, to Susan M. Whittlesey, dated October 17, 1850, and recorded June 13, 1851. The deed was sought to be avoided on the ground of David D. Marvin’s unsoundness of mind at the time of the execution of the conveyance.

<p>While a sale by one partner to the other, of all his interest in the partnership, stands, the copartnership books belong to no one but the purchaser; and while they belong, exclusively, to him, no one else has the right to a general inspection of them.</p> <p>Hence, in an action by the executors of a partner who has parted with his interest in the partnership and conveyed it to his copartner, against the latter, to set aside.the releases and conveyances, the plaintiffs are not entitled, before judgment, to a general inspection of the books of the firm.</p>

APPEAL by the defendant from a judgment entered upon the verdict of a jury. The action was brought upon two promissory notes given by the defendant to the Columbian Insurance Company, of which the plaintiffs are receivers, as premiums upon policies of insurance. An attachment was issued,' and the defendant appeared.

rilHIS is an equitable action, brought by the plaintiff as JL a stockholder of the Saratoga Gas Light Company, to obtain a decree setting aside and canceling a lease executed by the defendant, the Saratoga Gas Light Company, of its gas works and fixtures and personal property to the other defendant, the Citizens’ Gas Light Company, for the term of five years, with a privilege of renewal for five years longer, on the ground that the object and effect of this lease was to…

APPEAL, by the defendant, from a judgment entered upon the verdict of a jury. This action was brought to recover damages for an alleged assault and battery by the defendant, upon the plaintiff. The complaint contained two counts. The first count alleged an assault and battery committed on the 15th day of June, 1869, and the second count alleged an assault and battery committed on the 17th day of October, 1869.

rpHIS action was brought to recover damages arising JL from an injury occasioned by the explosion'of a large rotary iron steam boiler, while the same was owned, and being used by the Saratoga Paper Company, at their mill, situated in the village of-Schuylerville, Saratoga County, and State of Yew York, on the 13th. day of February, 1864, by means whereof the boiler was projected, and thrown on to the plaintiff’s premises, -and through several of his buildings, thereby…

The action was brought by the plaintiff, who is a resident and tax-payer of the city of Watertown, to restrain the defendants from prosecuting certain improvements in several streets in said city.

APPEAL, by the plaintiff, from a judgment entered at a special term, after a trial at the circuit, before a justice of this court, without a jury, a jury having been waived by the parties in open court.

fjpiilS action was brought recover damages caused by the JL defendant’s digging a pit or well, or fountain, on his laud, adjoining the plaintiff’s farm, in Gates, Monroe county, by which, the plaintiff alleged, large quantities of water overflowed the pit, or well, or fountain upon the defendant’s land, and thence overspread the plaintiff’s farm, injuring and destroying his land for farm purposes, and destroying crops.

THIS is an appeal from a judgment, rendered at a special term, denying the plaintiff’s motion for a new trial on a case and exceptions. The action was brought to recover damages for fraudulent representations made by the defendant in respect to \the title to a farm which the plaintiff was about purchasing. The sale was negotiated with the plaintiff by the defendant. Among other defenses set up in the answer, was that of the statute of limitations.

APPEAL, by the plaintiffs, from a judgment entered upon the report of a referee. This action was brought to recover $366.51, being a balance claimed to be due for sewing machines sold to the defendant by one William C. Orcutt, the claim having ' been duly assigned to the plaintiffs before suit. The defendant'claimed that the machines were not sold; but were consigned, to her, and that she did the business as agent, on commission.

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

<p>APPEAL, by the plaintiffs, from a judgment entered upon the report of a referee.</p>

THIS action having been brought to trial at the Cayuga circuit, before the court without a jury, a jury being waived by consent of parties given in open court, the court foutid the following facts: On the 17th day of November, 1867, the plaintiff was duly organized as a railroad corporation.

APPEAL, by the plaintiffs, from a judgment entered upon the report of a referee. The action was brought by the plaintiffs, as administrators of Jacob Heath, deceased, against the defendant, as administrator of Wm. Grenell, deceased, upon a promissory note made by the defendant and his intestate. The only defense to the claim was the statute of limitations.

APPEAL, by the defendant, from a judgment entered upon the report of a referee. The action was brought by the plaintiffs, as judgment creditors of David Welch and William Welch, to set aside an assignment of their property, made by them to the defendant Lyon, in trust for the benefit of creditors.

<p>In an action by an executrix, upon a promissory note made by one of the defendants and indorsed to the intestate by the others, the maker is an incompetent witness as between the defendants and the plaintiff, to prove that the note, at the time it was made, was infected with usury; or that the time of payment had been extended by an agreement between the testator, in his lifetime, and the witness, without the consent of the indorsers.</p> <p>And it makes no difference that the action "was commenced by the testator in his lifetime, and at time of the trial was continued in the name of his executrix.</p> <p>Where an action is commenced upon a promissory note, against the maker and indorsers, by the service, upon all, of a summons in which all are named, the maker is clearly a “ party” to the action. The fact that he does not appear, nor put in an answer, but suffers default, does not operate to sever the action, or to discontinue it as to him. And being a party, he is an incompetent witness against the plaintiff suing as executrix, in respect to transactions between him and the testator.</p> <p>Nor will a release, executed by the indorsers, to the maker, of his liability to them upon the note, affect the question of his competency as a witness against the plaintiff. The defendants cannot, by any act of their own, change the statute, or take away the rights of the plaintiff under it.</p> <p>The act of 1835, (Laws of 1835, oh. 211,) which provides that when default is obtained against part of the defendants, the plaintiff may proceed to the trial or hearing against the other parties, in the same manner as if the suit had been commenced against the other parties .only, and the action 'shall be thereby severed, has been suspended and abrogated by the Code. It is inconsistent with the provisions of the Code, and is therefore repealed by section 468.</p> <p>A record-book of protests, kept by a notary, is the best evidence of the entries therein; and if such entries are competent for any purpose, the book should be produced, or shown to be lost, before parol evidence of the entries can be given.</p>

WRIT of error to the Erie county court of sessions. The plaintiff in error was tried -before the. court of sessions in and for the county, of Erie, in March, 1870, upon an indictment for embezzlement, under the following provisions of chapter 729 of the laws of 1865, to wit: “ And if any carrier or other person who shall have received any advance for the cost or price of freight upon any property received, or .to be received for transportation or carriage, or who shall have…

THIS is an action brought for breach of a written contract between the parties, as follows : “ Article of agreement made and entered into, this 12th of Bov., 1858, between Richard Selwood, of Fort Plain, Montgomery county, Bew-York, and John E. Wells, of Johnstown, Fulton county, Bew York, witnesseth, that the said Selwood, for and in consideration of the covenants and agreements hereinafter contained, on the part of said Wells, hereby agrees to make and finish, in a good…

ffllHE action was ejectment, for a parcel of land situate in JL the county of Essex. On the trial, the title to the premises was shown to be in the plaintiff, and the defendant resisted a recovery solely on the ground that he was not in the actual possession at the time of the commencement of this action.

APPEAL by the defendants from a judgment entered upon the report of a referee, in an action of ejectment. The referee found and reported the following facts : First. That the plaintiff was and is the owner in fee, and was in possession of the undivided five sixteenths parts of the premises described in the complaint, being the northerly part of township number 47, in the division of Totten & Crossfield’s purchase into townships, and more fully described in the complaint.

<p>The provision in section 241 of the Code, as amended in 1857, that “ in all cases the defendant may move to discharge the attachment, as in the case of other provisional remedies,” includes all cases; such as want of jurisdiction in the officer who issued the attachment; fraud in obtaining it; defective papers; and various others.</p> <p>An application to discharge or vacate an attachment may now he made, in furtherance of justice, upon the real merits of the motion, or for irregularity, or for want of jurisdiction in the officer who granted it, or for any other cause. And such motion may be made after judgment entered, in the action; even though the defendant has appeared and given the undertaking required by sections 240, 241.1</p> <p>In cases where the defendant moves upon his own affidavit, or affidavits made on his behalf, the plaintiff may oppose the motion, as in other cases, by affidavits which either explain or contradict those offered by the moving party.</p> <p>Where the motion is made on the plaintiff’s original affidavits, alone, no further affidavits on "the part of the plaintiff are admissible.</p> <p>When the defendant moves, not only upon the original affidavits used in obtaining the "attachment, but also upon his own and other affidavits, in order to show the improvidence of issuing it, as well as to show ,the injustice of issuing it, on account of the unfair statements in the plaintiff’s affidavits, and asks to have it vacated and set aside; to be restored to his rights by reason of the action under it; to set aside the judgment; and to be permitted to come in and defend the action, upon the merits, the plaintiff has a right to read affidavits in opposition to each point in his proceedings which is assailed by the defendant in his moving papers, and as to which be asks for relief.</p> <p>Although an attachment is an extraordinary remedy, not known to the common law, and therefore one which .courts should watch with scrupulous jealousy, yet when a creditor fairly brings himself, by his application,-within the spirit and intent of the statute authorizing the remedy, he is to be protected in the enjoyment of its advantages.</p> <p>Where it appeared, upon a motion to set aside a judgment, that it was for an amount exceeding $2500; that to that extent, it was upon a demand for which the defendant, upon a settlement with the plaintiffs, had given them his promissory notes, which were not due when the action was commenced; Held that this presented a question of law for trial. That,>rói« facie, this was against the right of the plaintiffs to the judgment, to that extent.</p> <p>And that even if the facts sworn to by the plaintiffs, in explanation, could overcome this legal presumption, still the court would not, at special term,</p> <p>■ try a cause upon the merits, on affidavits.</p>

WRIT of certiorari for the purpose of correcting an alleged erroneous assessment, made by the defendants as assessors, against the real and personal property of the relator, in the village of Meehanicville, for the year 1871. The relator was a stock corporation with a capital of $70,000.

THIS is an appeal from an order made at special term, denying a motion to compel the plaintiffs to file security for costs, on the. ground that the plaintiffs were infants.

APPEAL by the defendants William A. Sanford and Joseph H. Sanford, from a judgment in favor of the plaintiff against them, which was entered in the office of the clerk of St. Lawrence, county, on the 11th day of February, 1871.

<p>Upon an indictment for murder, the jury, under the statute, Í2 E. S. 725, § 27, Edm. ed,,) may convict the prisoner of any degree of the offense inferior to that charged.</p> <p>Upon the trial of such an indictment, the judge refused the request of the prisoner’s counsel to charge “ that they could convict of murder in the first degree, or murder in the second degree, or of' any of the degrees of manslaughter,” and in his charge restricted the jury in the event of any conviction, to murder in the first degree, or manslaughter in the third degree. Meld that unless there was an entire absence of -evidence to prove the commission of any other crime than murder in the first degree or manslaughter in the third degree, it was error to charge as the judge did charge, and to refuse to charge as requested.</p> <p>Meld, also, that the right rule would have been for the judge to say to the jury that, under the indictment, a conviction of the principal offense, or of any less degree, was allowable, and then leave it to the jury to apply the facts to the definitions of the various grades of the crime, and say which they thought was sustained.</p> <p>Where, upon the testimony, the jury could have convicted the prisoner, had they thought proper, of manslaughter in the 4th degree; Meld that a charge which in effect told them that they could not do so, and that if the prisoner was guilty at aE, the lowest degree of crime of which they could convict was manslaughter in the third degree, was erroneous, to the prejudice of the prisoner.</p> <p>Upon a review of a judgment of the court of general sessions of New York, upon writ^of error, even though there was no request to charge, or exception taken, the court ought, under the statute, (Bows of 1855* eh. 337, $ 3,) if it discovers any error which may have prejudiced the prisoner, to give him the benefit of it.</p>

APPEAL, by the plaintiff, from a judgment rendered at a special term, on a trial before the court without a jury, dismissing the complaint, without costs. Held: which renewal leases he claimed to hold in his own right, and for his individual benefit.

APPEAL by the defendant Holland from a judgment entered upon the report of a referee. ■ The action was for money had and received, and was brought to recover the value of a deficiency in the quantity of lumber shipped by the defendants to the plaintiffs.

THE appeal in this cause is from a judgment recovered by the plaintiff, and from an order denying a new trial, in an action upon a policy of insurance against fire. The action was brought by the plaintiff in his own right, and as the assignee of G-eorge 27. Pitney, who was a joint owner with the plaintiff in the property insured.

<p>It has become the uniform practice, in the first' district, to refuse applications to compel the production of books and papers, on the examination of a party before trial; and that practice is the correct one.</p> <p>The statute has pointed out the only mode by which a discovery of books and papers can be obtained, before trial. To do so, the party applying must not only show what he wants, but must.also prove that he cannot obtain the information elsewhere.</p> <p>The case of Brett v. Bmknmn, (32 Barb. 655,) commented on, and questioned.</p>

APPEAL, by the plaintiffs, from a judgment dismissing the complaint, ordered at a special term, on a trial before the court without a jury. Prior to February, 1865, the plaintiffs, who composed the firm of Kirtland, Bronson & Co., occupied four lofts of the stores Yos. 45 and 47, Chambers street, Yew York, and the defendants occupied the two lower floors of the . same.

APPEAL by the defendants from an'order made at a special term, denying a motion for a new trial, in an action upon a draft, brought by the holder, against the maker.

<p>APPEAL from an order made at a special term, on the application of the personal representatives of a sole defendant who had died after answer, directing the action tó ■be continued against them.</p>

<p>There is nothing in chapter 295 of the laws of 1850, by which act the 'consent of the surrogate is required before an execution can be issued against the estate of a deceased judgment debtor, that necessarily takes away from the Supreme Court the power it has always possessed, of controlling the execution of "its judgments. And a construction will not be given to it which, would do so by implication, when it may well stand with" the power thereby conferred upon the surrogate.</p> <p>The consent of the surrogate specified in the act of 1850, is an additional requisite which the law has imposed to the issuing of an execution, in such a case, and was not designed to take the place of the consent of the court in which the judgment was recovered.</p> <p>By the Code, a motion is substituted in the place of the former writ of scire facias, in such a case.</p> <p>Some motion must be made, to the court in which the judgment was recovered ; and a motion for leave to issue execution upon the -judgment, against , the representatives of the deceased, is one of proper character.</p> <p>The cases of Aden v. Clarke, (11 How. Pr. 209,) and Frink v. Morrison, (13 Alb. 80,) approved, and Wilgus v. Bbodgood, (33 How. 289,) and Flanagan v. Tinin, (53 Barb. 587,) disapproved.</p>

<p>APPEAL from a judgment for the plaintiff on a verdict rendered at the Jefferson circuit, and from an order , denying a new trial on the minutes. The facts are sufficiently stated in the opinion of the court.</p>

The relators, James E. Walker, Fred. Hinckel and Adam Cook, applied for a peremptory mandamus, to issue out of- the supreme court,… Held: as deponent is informed and believes; nor was any notice of the time or place of any such election given by the secretary in three or any of the daily papers published in said city for ten days prior to said first Monday of August, 1871, or for any time prior thereto. ‘c That the election for governors of said Albany Hospital was not…

THIS proceeding is a common law certiorari to review the action of the county judge-of Genesee county, touching the application of the tax-payers of the town of Pavilion to bond that town in aid of the Rochester and State Line Railway Company, under chapter 907 of the laws of the State of Yew York, passed May 18, 1869.

This action was brought by Abraham M. Baxter and others, as commissioners of highways of Yonkers, against the Spuyten Duyvil and Port Morris Railroad Company. The complaint alleged that the plaintiffs were the commissioners of highways in the town of Yonkers.

Motion to dissolve an injunction. The plaintiff manufactured from the juice of the pomegranate a syrup, which he named “ Grenadine ” and “Grenade Syrup,” and sold under those names. Some months later, defendant commenced to make a syrup, which he sold under the name of Grenade Syrup.

<p>Where the foundation for an action against a city corporation to recover damages for a personal injury sustained by the plaintiff was, that a piece of ice upon which he slipped and fell was a dangerous obstruction to those using the sidewalk for passing along the street, which the city was bound to remove, and the danger consisted in the liability of those who stepped upon it, to slip and fall; Held that the obstruction was one to be avoided by those using the sidewalk, and seeing, or being able to see, the ice; and that if ,it could readily be avoided, the failure to avoid it, by one using the sidewalk and plainly seeing the obstruction, must be accounted negligence.</p> <p>Held, also, that if there was danger in walking over the piece of ice, and the plaintiff voluntarily and unnecessarily undertook to walk over it, when he could plainly see it, and easily avoid it, and fell and broke a limb, he could not meet the allegation that his own negligence contributed to the result; or avoid the conclusion that he must therefore fail to recover damages of the city. Volenti non fit injuria.</p> <p>And it being proved that the plaintiff not only did see the ice, but'was warned of it, at the time; Held that he was not in a situation to charge his injury to the default of the city—if the city was in default—and should therefore have been nonsuited.</p> <p>In such a case it is erroneous for the judge to refuse to charge the jury that “if, immediately previous to the accident, the plaintiff knew, or had noticed, that there was ice there, and then took the risk of passing over the place safely, he could not recover,”</p> <p>The duty of the passenger, in cases of that kind, is, to avoid- the obstruction, and not to encounter its dangers.</p>

JO HU T. DAVIS, and several other parties, who had been tried and convicted, for various misdemeanors, at the court of special sessions of the peace, held in and for the city and county of New York, caused the record and proceedings in their respective cases to be brought into this court to be reviewed.

<p>To establish a right to recover possession of real estate, as against a person claiming under a title shown to be invalid, possession and use by the plaintiff, even without proof of paper title, and ouster by the defendant, are sufficient.</p> <p>An act authorizing an assessment for a street improvement is in derogation of individual rights, and must be strictly construed, and .rigorously observed. If there is a failure to comply with any material requirement of the act, a sale of property for the payment of the assessment, or a lease based upon such sale, will be invalid to confer either title or right to possession.</p> <p>The proceedings of the commissioners, in making an assessment, until properly adjudicated, are open to investigation in an action in which the title is involved. In such cases, jurisdiction is acquired step by step, and ceases with any failure to 'comply with the statute.</p> <p>A party setting up a title to land under a sale for “non-payment of an assessment for street improvements, must show the authority to sell; and that includes the taking of those material steps that must precede a valid sale.</p> <p>Where, by a statute, the trustees of a village were authorized to appoint three freeholders as commissioners to make assessments for certain street improvements, neither of whom should be owners of, or interested in, property within the assessment district ;• and the trustees appointed, as one of the commissioners, a person who had an actual, pecuniary interest in' certain church property situated in the assessment district; Held that such commissioner was disqualified to act, and the requirement of the statute was not fulfilled.</p> <p>The statute also required the commissioners to publish a notice addressed to the owners of land within the assessment district, designating a time and place for receiving proof of certain facts. But the notice published was not addressed to anybody. Held this was a failure to comply with a jurisdictional requirement.</p> <p>The same statute also required the commissioners to publish a notice designating a time and place when and where the parties interested could be heard, and the report seen and inspected; and to return, with their report, any written objections left with them. By the notice which was given, an opportunity was afforded, not for a hearing, but to present written objections; and there was a failure to specify the time and place where such report could be seen and inspected. Held that the notice was defective. That the parties interested were entitled to be heard, without presenting written objections. ■ A statute declared that all the proceedings of the president and trustees of a specified village “ heretofore had in respect to the laying, imposing, confirming, assessing, levying and collecting of taxes and assessments, and in the sale of lands for arrears of taxes and assessments, are hereby rati- ■ fled and confirmed, and the same are declared to be valid.” Held that it was matter of serious doubt whether 'that section, embracing as it did, an independent local subject, to wit, the confirmation and legalization of the acts of local officers, which subject was not expressed in the title of the bill, could be legally interpolated in an act entitled “ An act to consolidate, re-enact and amend the charter of the village of Y.” *</p> <p>If, by reason of want of jurisdiction, proceedings to levy an assessment are absolutely void, and no title passes by a sale or lease of lands, under such proceedings, the legislature has no power, upon the pretext of confirming the acts of public officers, to take without compensation, a lot from one private citizen and convey it to another,</p>

APPEAL by the defendants from a judgment entered at a special term, on the verdict of a jury. The action was brought upon a promissory note given by the defendants to one Charles W. Smith, and transferred by him to Sheldon Brothers, and by the latter transferred, for value, to the wife of the plaintiff, before maturity, who transferred the same to the plaintiff, after its maturity.

<p>A railroad company, in determining upon its route, acts arbitrarily, and is not required to consult any one.</p> <p>No one is entitled to any notice, on the subject, until the route has been actually designated, and the map and profile filed. Then, for the first' time, the company is in a condition to notify the property holders whose land is to be taken.</p> <p>And any person feeling aggrieved may, within a certain time after written notice of the route, apply to a justice of the Supreme Court, for the appointment of commissioners,; who, on a hearing of the parties, are to affirm, or alter the route.</p> <p>The duty of examining the route is not imposed on a justice of this court. All that is to be done by the justice is to see that there is sufficient cause ■ for the appointment of commissioners. This does not mean that -he is to try the matter on its merits.</p> <p>The determination is to be made by the commissioners; one of whom must be a civil engineer.</p>

<p>Where a building was described, in an application for insurance, as a “ dwelling-house,” and it was insured as such; Held that this description of the building was a warranty that the building was a dwelling-house, and used as such exclusively. And that the occupation of a portion of the building for a billiard saloon, and other portions for a restaurant and bar, at the time of the fire, which occupation increased the risk, and enhanced the rate of premium, was sufficient to defeat any recovery by the insured; on the ground that such warranty had been broken.</p> <p>Held, also, that the insurers were not estopped from setting up such breach as a defense, for the reason that the misdescription, if any, was their act, through their authorized agent; where there was no conflict in the evidence, all the evidence there was, on the subject of what took place at the time the contract was made, being the testimony of the plaintiff himself; who stated that upon his asking the agent to go and see the building, the latter said he was well acquainted with it, and could not go; that he then told the agent that the upper part was used as a billiard-room, and the lower part as a dwelling-house; and that thereupon the agent made out the papers and delivered them.</p>

<p>The act of the legislature, of February 27, 1871, (lam of 1871, eh. 57,) in relation to the widening and straightening of Broadway in the city of New York, &c., which authorizes this court, on good cause shown, to open the order of confirmation, and to cause the question of valuation to be re-examined, is not unconstitutional as impairing the obligation of contracts, or as depriving a person of property without due process of law.</p>

APPEAL by the defendant, the church corporation, from a judgment entered upon the report of a referee. The complaint alleged that the plaintiff was a corporation duly incorporated, under and by virtue of an act entitled “An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes,” passed February 17,1848, and the acts amendatory ■ thereof, and doing business in the city of Yew York.

APPEAL by the defendant from an order made at a special term, granting a stay of proceedings, upon terms, on a judgment of foreclosure and sale.

APPEAL by the defendants Sprague and Eavill, from a judgment entered on the verdict of a jury.

APPEAL, by the plaintiff, from a judgment ordered at the circuit, dismissing the complaint.

OR the 8th of August, 1868, the cellar of the plaintiff’s house in Eighth avenue, near Thirty-fourth street, in the city of New York, was overflowed by water flowing therein from the street sewer, through the sewer connection, and damages were thereby sustained in the sum of $2032.28.

THIS action was brought by the respondents, a national bank, located in the city of New York, to recover of the defendants, as executors of John J. McKinney, deceased, $600, and interest from March 23d, 1870, the principal sum claimed being an over credit given to the testator, in his lifetime, by mistake of the respondents.

THIS action was brought against the defendants to recover the penalty imposed by the Bevised Statutes upon auctioners demanding or receiving,, from the owner of property sold by them at auction, a greater compensation, for their services, than two and a half per cent, unless by virtue of a previous agreement in writing.

George G. Barnard, upon a habeas corpus issued by him for the relief of the relator, and directed to Matthew T. Brennan, sheriff of the city and county of New York. The habeas corpus was allowed by Justice George G. Barnard on the. 15th of December, 1871, and was made returnable before him, at special term, on the 16th of December, 1871.

THE action was brought, in form, against the defendants, James 8. Brander-and Charles D. Hubbard, alleged to compose the firm of Brander & Hubbard, at New Orleans, as indorsers of a promissory note. Brander was not served with process, Hubbard alone was served, and defended. The note in question was made by the firm of Martin & Gilmore, at New Orleans, dated January 4, 1861, payable January 1, 1862, to the order of John H. Martin, for $5000, with interest at 8 per cent.

IN October, 1865, Eliza J. Howland agreed to lease of the plaintiff, No. 200 Madison avenue, in the city of New York, furnished, to be used as a boarding house for one year, at $10,000 per annum, payable quarterly in advance, to commence November 1, 1865; and the defendant agreed with her and- the plaintiff to be security for said rent for said one year.

APPEAL by the plaintiffs from a judgment ordered on the trial, at the circuit, dismissing the complaint. At the times mentioned in the complaint, the plaintiffs were copartners, residing and doing business in Macon, Georgia, and the defendants were -copartners, doing business at Smith Grove, Kentucky. In- April, 1867, the defendants agreed, under a verbal eantract, to sell to the plaintiffs 1500 bushels of sound white corn.

ÁPPBAL, by the defendants, from a judgment entered on the verdict of a jury. The action was brought to recover damages fora refusal, by the defendants, to perform a contract. The complaint alleges that the defendants, on the -6th of January, 1866, entered into an agreement to purchase of the plaintiffs, and pay for, five hundred barrels of oil, to be delivered at the yard, and .to lighter.

APPEAL by the defendants from a judgment entered upon the verdict of a jury. The action was brought to recover damages for the breach of an agreement by the defendants.

APPEAL by the defendant from a judgment entered upon the verdict of a jury, in favor of the plaintiff, and from an order denying a motion for a new trial. The action was brought to recover damages for an injury sustained by the plaintiff by falling upon a sidewalk in the city of Troy, in January 1870.

<p>The question as to the place of residence of a person owning real estate subject to taxation, is one for adjudication by the assessors, and the duty of deciding it is a judicial duty; and even if they err in the performance of it, ever so clearly and palpably they are not liable to an action for the redress of the injury thereby occasioned.</p> <p>Thus, where the largest portion of the plaintiff’s farm lay in the town of which the defendants were assessors, and the principal dwelling-house, and other buildings, were on that portion; Held that the assessors had jurisdiction of ' the subject matter, and the question as to whether the farm should be assessed in their town, was one which they were called upon to consider and determine, in the performance of their official duty. And that an action would not lie, .against them, to recover back taxes assessed by them upon the farm, although it appeared that at the times when the assessments were made, the plaintiff did, in fact, reside, with a part of his family, in a temporary building erected upon a portion of the farm lying in an adjoining town.</p> <p>That the duty, and the right, to inquire and decide where the property was liable to be assessed, were necessarily coupled together, and constituted jurisdiction in the matter; and this gave to their decision, if wrong, the character of an error of judgment in a judicial proceeding, for which they were not liable in an action.</p>

OH the 6th day of September, 1867, the plaintiff purchased a ticket of the defendants’ ticket agent, at Rhinebeck, for a passage in the defendants’ passenger cars, on their railroad, from Rhinebeck to Poughkeepsie. This statement was on the face of the ticket, viz: “ Good for this day only.” It was indorsed, “ Sept. 6, 1867, Rhine-beck station.” The plaintiff took the ticket and went out of the ticket office at Rhineheck.

APPEAL, by the plaintiff, from an order setting aside the summons in the action. The facts appear sufficiently in the opinion.

OH the 18th day of January, 1871, the relator was brought before the respondent by Alexander McWhorter, on a writ of habeas corpus issued by the respondent, and directed to said McWhorter. McWhorter made a return to the writ, that he was superintendent of Monroe county penitentiary, and that he held the relator in costody by virtue of a warrant of commitment issued by Alpheus S. Clark, a justice of the peace of the town of Penfield, which warrant was attached to'his return.