Volume 61 — New York Reports

This action was brought to recover for a bill of hats and caps claimed to have been sold and delivered by the plaintiffs to the defendants. The following were the facts: In June, 1869, an agent of the plaintiffs, who were a firm doing business in -Rochester, called upon the defendants, a firm at Medina, with samples of the plaintiffs’ goods. He showed them the samples, and gave them the price of each article.

<p>Appeal from a judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment of the Special Term.</p> <p>This action was brought for the partition or sale of two lots of land in the city of Hew York.</p> <p>The plaintiff and the defendant Ahearne were owners in fee of the premises, each owning one undivided half thereof. The plaintiff acquired her interest by two separate conveyances ; one undivided quarter being conveyed to her October 2d, 1866, and another January 16th, 1869. The defendant Ahearne acquired her interest February 15th, 1866 ; she then claiming the whole premises, however, under alleged tax and assessment leases, and was in possession of the whole. She made four leases; one of these was held by defendant Wright, expiring August 1st, 1871; the second by defendant Spear, ending June 1st, 1872; the third by defendant Hickman, to expire September 4th, 1879; the fourth by defendant Colbert, to expire April 1st, 1880. Each of these leases, was made before the plaintiff acquired any interest in the premises. The lessees, respectively, entered into possession under the leases and erected dwelling-houses on the portions of the lots respectively leased to them, and paid the reserved rents. They were in possession when this action was brought.</p> <p>The plaintiff, in January, 1869, commenced four actions of ejectment against the defendants, to recover possession of her undivided half of the premises.</p> <p>On March 11th, 1869, the defendants Wright and Spear, with the written assent of the defendant Ahearne, attorned to the plaintiff for her undivided interest, on waiver of costs and damages. Thereupon the actions of ejectment against these parties were by consent discontinued. On March 29th, 1867, the defendant Hickman attorned to the plaintiff, under the statute (judgment in the action of ejectment having been recovered against him), and with the consent of Ahearne. Judgment in the ejectment suit was recovered against Colbert, and the plaintiff was put into possession by the sheriff on April twenty-third of the same year. There had been a previous attornment by Colbert to the plaintiff (March eighth), after the time to answer had expired and before judgment.</p> <p>In May, 1869, the present action for partition was commenced. The plaintiff alleged her title as tenant in common with Ahearne, setting forth that each was in possession of her undivided half part. The defendants Wright, Spear, Colbert and Ahearne answered separately. Each contested the plaintiff’s title and possession and set up title in themselves, under the tax and assessment sales. Hickman did not answer.</p> <p>On November twenty-third an order was entered by consent that the issues in the action be referred to a referee to hear and determine the issues therein, to report upon the plaintiff’s title and that of the several parties, and to make an abstract thereof; to inquire and report whether the whole premises, or any lot or separate parcel, were so circumstanced that an actual partition cannot be made; and if he arrive at the conclusion that the sale of the whole premises or of any separate lot is necessary, that he specify the same in his report, with the reasons which render a sale necessary. There was also a direction that he should ascertain and report whether any creditor had a specific lien on the undivided share of any of the parties in that portion of the premises necessary to he sold, or any lien, and the amount due upon each.</p> <p>The referee found that the plaintiff was owner in fee of one undivided half of the premises as tenant in common with the defendant Ahearne, and was in possession of it subject to certain liens for taxes and assessments, and that the tenants, Spear, Wright, Colbert-and Hickman, held her half without any agreement as to time or rent.</p> <p>He further found that the defendant Ahearne was owner in fee and was in possession of the other half of the premises subject to taxes and assessments and liens for sales, and subject also to the lien and unexpired terms of the leases to the defendants Wright, Spear, Colbert and Hickman. He found the value of the unexpired terms and charged the payment of it on the share of Ahearne.</p> <p>He also found that the last named leases were made by Ahearne under a claim of certain assessment leases from the city, but that no proof of these assessment leases was made before him.</p> <p>He further found that partition could not be made because of the numerous outstanding leases made and executed by the mayor, etc., of Hew York, to different persons for unpaid taxes and assessments, and because of the impossibility of determining their value in order to make compensation, the premises consisting of two irregular lots.</p> <p>Exceptions were taken to the report by Ahearne, Colbert, Spear and Wright, but none were taken by the plaintiff.</p> <p>In May, 1871, the court, at Special Term, on hearing the exceptions to that part of the report which held that partition could not be made, overruled them, and held that a sale was necessary, and modified the report of the referee as to the rights of the tenants, finding, in substance, as follows :</p> <p>1. That the plaintiff is the owner, and seized of one undivided half of the parcels of land in litigation, subject to the taxes, assessments, corporation leases and "tenants’ leases.</p> <p>2. That the defendant Ahearne is the owner, and seized of the other half of the premises, subject to the same incumbrances and leases.</p> <p>3. That the defendants Hickman, Colbert, Spear and Wright, are tenants residing on the lands, and are owners of the leases both by virtue of the corporation leases granted to the defendant Ahearne, and by virtue of her ownership of one-half the fee.</p> <p>4. That by reason of the undetermined validity and value of the corporation leases and of the tenants’ leases and of the large amount of unpaid and unapportioned taxes and assessments upon parcels of the land, it is impracticable to make partition of the parcels of lands between the parties owning the fee, or to sell the same otherwise than subject to the said taxes, assessments, corporation leases and tenant leases.</p> <p>It was adjudged that a sale take place according to these conclusions, and that the referee pay out of the net proceeds of sale one-half part to the defendant Ahearne; and that the share of the plaintiff be charged with one-half of all the costs of the tenants under the Ahearne leases.</p> <p>The decision of the referee was final, and could only be reviewed on appeal at General Term. (Code, §§ 268, 272; Dana v. Howe, 3 Kern., 306; Watson v. Scriven, 7 How., 9, 11; Conolly v. Conolly, 16 id., 224; Cheeseborough v. Agate, 26 Barb., 603; 3 Wait’s Pr., 321; Danbery v. Coghlan, 12 Sim., 507; 2 Dan. Ch. Pr., 1319; 1 Barb. Ch. Pr., 560.) The referee was right in holding that -the leases by Ahearne to the other defendants were void as to the plaintiff. (Striker v. Kelly, 2 Den., 323; Westbrook v. Willey, 47 N. Y., 460; Cruger v. Dougherty, 43 id., 121, 122; Whiting v. Thomas, 23 id., 285; Doughty v. Hope, 1 Comst., 79; Nicoll v. Fash, 59 Barb., 275; Sanders v. Leary, 38 id., 70; Stevens v. Palmer, 10 Bosw., 60; Sharp v. Spier, 4 Hill, 76; 1 Greenl. on Ev., §§ 493, 495, 498.) Defendants are precluded by the judgments in ejectment from maintaining the right to hold against plaintiff. (Van Allen v. Rogers, 1 J. Cas., 281.) Neither the attornments nor the receipt of rent from Wright and Ahearne, by plaintiff’s agent, can be held to subject her interest to the long lease given by Ahearne. (1 R. S., 744, § 3; Florence v. Hopkins, 46 N. Y., 182; Doe v. Noden, 2 Esp., 530; Bryan v. Burgh, 4 B. & Ald., 401; Doe v. Butcher, 1 Doug., 50; Little v. Martin, 3 Wend., 219; Anderson v. Prindle, 23 id., 616; Jackson v. Salmon, 4 id., 327; Digby v. Atkinson, 4 Campb., 275; Jenkins v. Church, Cowp., 482; Doe v. Collinge, 6 C. B., 939; Webber v. Shearman, 3 Hill, 547; Van Brunt v. Pope, 6 Abb. [N. S.], 217; Glover v. Wilson, 2 Barb., 266; Pierce v. Pierce, 25 id., 243; Croswell v. Crane, 7 id., 191.) The subsequent acquiring title by Ahearne to the fee of an undivided half of the premises leased by her, did not enlarge the interest of the lessee. (Taylor L. and T., § 114.)</p> <p>The question of the mode of sale on actual partition, rested in the discretion of the court. (Haywood v. Judson, 4 Barb., 229; Van Aredale v. Drake, 2 id., 599; Smith v. Smith, 10 Paige, 470; Clason v. Clason, 6 id., 541; Vermilyea v. Palmer, 52 N. Y., 471; Warfield v. Crane, 4 Keyes, 448.) The modification of the referee’s report, made at Special Term, was within the power of the court. (Woodworth v. Campbell, 5 Paige, 518.) Partition between tenants in common of real property is a matter of right. (10 Paige, 470.) .The possession of one tenant in common is presumed to be in support of the common title. (3 Alb. L. J., 16.)</p>

This action was commenced by attachment issued upon affidavits of one Stoeller and of plaintiff.

• Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of plaintiff entered upon the verdict of a jury. This action was upon a policy of fire insurance. The policy was issued to Addison Weeks through defendant’s agent at Albany (A. T. Holmes), November 14, 1868. About February 20, 1869, Weeks sold out his interest in the insured property to the plaintiff.

(Reported below, 6 Lans., 112.) This action was brought to recover for the loss of a stallion, harness and wagon, alleged to have been destroyed by fire while in defendant’s charge as an inn-keeper, the complaint alleging that one of the plaintiffs, with the horse, stopped at defendant’s inn, and was received as a guest.

<p>Where, under a contract made by an individual member of a firm in his own name, by which he agrees to furnish another goods to be sold on commission, the goods are furnished by the firm, an action cannot be maintained by the firm upon a guaranty that the factor will account for the proceeds of his sales, in the absence of proof of knowledge on the part of' the guarantor, at the time of executing the guaranty that the goods were to be furnished by the firm.</p> <p>A guarantor has the right to prescribe the-exact terms upon which he will enter into the obligation and to insist upon his discharge in case those terms are not observed.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon a case submitted under section 372 of the Code. (Reported below, 5 Bans., 443.)</p> <p>The submission was for the purpose of obtaining a construction of the will of James Kelly, late of the city of Albany, who died December 20, 1852, leaving certain real estate in said city. The clauses of the will in question are as follows:</p> <p>“ Second. I give, devise and bequeath unto my beloved children Mary Ann Kelly and James Kelly all the real and personal estate of which I may die possessed, share and share alike.</p> <p>“ Third. I order and direct my executors, or such of them as may act, to, rent out by the year, and not longer, my house and lot in State street, and apply the rent toward the payment of my debts and support of my children.</p> <p>“ Fourth. In case of the death of either of my said children, I devise my whole estate to the survivor, and in case of the death of both, I devise all my property, or what may then be left, to James and Michael Kelly, sons of my brother Bernard of Hew York, or the whole to the survivor of them.</p> <p>“ Sixth. It is my desire that my property might not be sold or mortgaged until my youngest child attain the age of twenty-one years.”</p> <p>Said Kelly left him surviving the two children named in the will, and two brothers Bernard and Thomas. His daughter died in 1854 and his son in 1866, both before they became of age, unmarried and leaving no issue. Prior to the death of the son the two brothers died. Plaintiff is the daughter of Thomas, and defendants are the two sons of Bernard named in the will. Plaintiff claimed that, as heir at law of testator’s son James, she was entitled to a fee of one-half the real estate. Defendants claimed the whole under the limitation in the will. The General Term decided that each of the parties was 'seized in fee of an undivided one-third.</p> <p>In the construction of a will the testator’s intention is the most important element. (4 Kent’s Com., 535.) The words, “ in case of the death of,” as used in the will, are to be construed as meaning death at any time. (2 Jar. on Wills, 470, 471, 473; Ld. Douglas v. Chalmer, 2 Ves. Jr., 501.) The court should give such a construction to every part of the will as would preserve and give effect to every part of it. (Sweet v. Chase, 2 N. Y., 73; Arcularius v. Grisentainer, 3 Brad., 64; Carter v. Hunt, 40 Barb., 89; 3 R. S. [5th ed.], 38, §§ 1, 2; 3 Edw. Ch., 251; 10 Paige, 140; 3 Sandf. Ch., 293; Lane v. Vicks, 3 How., 471, 472; Carter v. Hunt, 40 Barb., 89, 91; Vandyck v. Van Buren, 1 Cai., 83, 84; Norris v. Beyea, 13 N. Y., 273; Tyson v. Blake, 22 id., 558; Chrystie v. Phyfe, 19 id., 344.) The final intention of the testator must prevail, if inconsistent, over a former one. (Cowenhoven v. Shuler, 2 Paige, 122, 129; 1 Jar. on Wills, 404; Ulrich v. Litchfield, 2 Atk., 372; 3 R. S. [5th ed.], 38, §§ 1, 2.)</p> <p>The second clause of the will devised an estate in fee to Mary Ann and James Kelly. (3 R. S. [5th ed.], 38, § 1; 5 Lans., 445.) The phrases “ in case of the death,” “ in the event of the death,” as used in the will, refer to the death of the testator, and import a contingency and not a limitation. (Slade v. Milner, 4 Mad., 144; Crigar v. Baines, 7 Sim., 40; Clark v. Lubock, 1 Young & C., 492; Schenck v. Agnew, 4 K. & J., 405; Hinkley v. Simmons, 4 Ves., 161; King v. Taylor, 5 id., 806; Turner v. Moore, 6 id., 557; Ornmaney v. Bevan, 18 id., 291; 2 Jar. on Wills [3d Lond, ed.], 707 [2d Am. ed., 468, 469]; Whitney v. Whitney, 45 N. H., 311; Ash v. Coleman, 24 Barb., 645; Briggs v. Shaw, 9 Al. [Mass.], 516; Ross v. Hill, 3 Burr., 1881; Moore v. Lyons, 25 Wend., 119; Converse v. Kellogg, 7 Barb., 590-593; Livingston v. Greene, 52 N. Y., 124.) A bequest or devise in terms, which ordinarily would pass an absolute interest, should never be cut down into a gift for life, except where such qualification is necessary to make the whole will consistent. (Ornmaney v. Bevan, 18 Ves. [S. & P.], 291; 1 Redf. on Wills [3d ed.], 433, 434; Briggs v. Shaw, 9 Al. [Mass.], 516; Scott v. Guernsey, 48 N. Y., 106; Lynes v. Townsend, 33 id., 558.) When words and phrases have received a fixed legal interpretation by repeated decisions, they are to be so interpreted when used by a testator in his will. (Brown v. Lyon, 6 N. Y., 420; Livingston v. Greene, 2 id., 124.)</p>

(Reported below, 61 Barb., 260.) This was an action of ejectment brought to recover the possession of certain lands situate in the county of Essex, being, as the plaintiff in his complaint alleges, five undivided sixteenth parts of 4,000 acres of land in the northerly part of township number forty-seven, in the division of what was known as Totten and Crossfield’s purchase into townships, and bounded on the north by the south line of what was known as Macomb’s purchase.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department in favor of the defendant, entered upon an order denying a motion for a new trial, and directing judgment upon a verdict.</p> <p>The action was for the alleged wrongful conversion of a barge. The answer denied the complaint, and alleged ownership in the defendant.</p> <p>The plaintiff claimed title by virtue of a mortgage executed to him October 5, 1865, by one Perkins, who was then the owner of the barge, conditioned to pay the sum of $752, with interest from January 23, 1865, on or before January 23, 1866. The mortgage contained this clause : “ In consideration of and as security for said loan, as aforesaid, the said barge is by these presents assigned, pledged, mortgaged, set over and conveyed to the said Jacob Best, 1ns heirs and assigns, the certificate of the enrollment of which vessel is as follows, viz.: “No. 213. Enrollment in conformity to an act of Congress of the United States of America, entitled ‘ An act for enrolling and licensing ships and vessels to be employed in the coasting trade and fisheries, and for regulating the same.’ Andrew Perkins, of Eondout, State of New York, having taken and subscribed the oath required by the said act, and having sworn that he is a citizen of the United States, and sole owner of the ship or vessel called the barge number thirty-seven, of Eondout, whereof he is at present master, and is a citizen of the United States, and that the said ship or vessel was built at Newburgh, State of New York, in the year 1853, as per enrollment No. 242, issued at this port 5th October, 1865, now canceled, properly changed and said enrollment having certified that said ship or vessel has one deck, and no mast, and that her length is 81.6, her breadth is 21.6 feet, her depth 7.9 feet, and that she meas ures 111.63, tons, and that she is a square sterned barge, and has no head; and the said Andrew Perkins, having agreed to the description and admeasurement above specified, and sufficient security having been given, according to the said act the said barge has been duly enrolled at the port of Albany. Given under our hands and seals, at the port of Albany, this 5th day of October, in the year 1865.” Upon the back of the mortgage was the following indorsement: “ Andrew Perkins, to Jacob Best, mortgage on vessel: Custom-house, Albany, N. Y. Received for record the 5th day of October, 1865, at 1 p. m. Recorded in book two of mortgages, pages 158, 159 and 160. William Bruce, Register of sales and transfers.”</p> <p>Perkins, the owner, being indebted to one Fox, the latter sued him in the Supreme Court, January 6, 1866, and he gave an offer of judgment, under section 385 of the Code ; the offer was accepted, judgment was on the same day entered against Perkins, and execution issued to the sheriff on the same day, who, on the ninth day of January, levied on the barge, and afterward, on the twelfth day of February, sold her to the defendant, who immediately took possession of her, and thereafter claimed her by virtue of such sale to him, and sold her.</p> <p>The plaintiff did not file his mortgage in any clerk’s office, but both Fox and the defendant had notice thereof at the time of the sheriff’s sale.</p> <p>After the close of all the evidence, defendant’s counsel moved that plaintiff be nonsuited, upon the ground that the levy and judgment of Fox took priority over the mortgage of the plaintiff, and that the mortgage not having been filed in the town clerk’s office of the town of Esopus (where plaintiff resided when the mortgage was given), at the time of said levy, was void as to the defendant.</p> <p>. Counsel for plaintiff insisted: First. That the recording of the mortgage as required by the act of Congress, protected him against the execution and judgment under which the barge was s<5ld. Second. That the defendant not being a creditor, but a subsequent purchaser, to be protected against the mortgage, such purchase must have been made in good faith; and that the defendant purchased with full knowledge of the mortgage of the plaintiff. Third. That the plaintiff had actual possession of the property prior to the levy under which the defendant claimed title to the barge. Fourth. That the judgment was a collusive one between the mortgagee, Perkins, and Fox, for the purpose of defrauding the plaintiff. The counsel for the plaintiff also claimed the right to go to the jury upon the several qestions of fact embraced in the foregoing propositions, and upon each one separately.</p> <p>The court refused to permit the case to go to the jury, and instructed them to find in favor of the defendant, which they accordingly did. Plaintiff’s counsel duly excepted.</p> <p>Exceptions were ordered to be heard in the first instance at the General Term.</p> <p>As defendant had full notice of the mortgage, and the same was recorded in the custom-house, it was valid without a filing under the State law. (9 U. S. Stat. at Large, 440; Whites Bk. v. Smith, 7 Wall., 646; Ætna Ins. Co. v. Aldrich, 26 N. Y., 92; Aldrich v.Ætna Ins. Co., 8 Wall., 491.) As against defendant, the mortgage was good under the State statute. (3 R. S. [5th ed.], 222, § 9; F. L. and T. Co. v. Hendrickson, 25 Barb., 458, 488; Gregory v. Thomas, 20 Wend., 17.) The mortgage debt being past due, and the mortgagee having taken possession, the mortgagor had no interest which could be sold under execution. (Mattison v. Baucus, 1 Cow., 277; Hall v. Sampson, 35 N. Y., 274; Dan v. Mallory, 16 Barb., 49; Champlin v. Johnson, 39 Barb., 609.)</p> <p>Parol evidence to show that the mortgage was not usurious was not admissible. (McKinster v. Babcock, 37 Barb., 265; Hooper v. Taylor, 4 E. D. Smith, 486, 489, 490; Bonesteel v. Flack, 41 Barb., 435, 439, 440, Durgin v. Ireland, 14 N. Y., 322, 325-327.) The proposition that the recording of the mortgage as required by the act of Congress protected plaintiff against the execution and judgment was inapplicable, and involved no question of fact on which plaintiff could go to the jury. (7 Wall., 650-655; 1 U. S. Stat. at Large, 287, 305; U. S. v. Bartlett, Davies, 9; Fox v. The Lodemia, Crabbe, 271; Palmer v. Aldridge, 16 Barb., 131; Farmer's Delight, 5 Wend., 564; Birbeck v. Ferry Boats, 17 J. R., 54; Many v. Noyes, 5 Hill, 34; Hicks v. Williams, 17 Barb., 523.) The State statute being the only one applicable, and the mortgage not having been filed under it, it was absolutely void as against Fox. The notice to him was not equivalent to filing. (3 R. S. [5th ed.], 222, 223,* § 9; 4 N. Y. Stat. at Large [Edmonds’ ed.], 435, § 1; Laws, 1832, chap. 279, § 1; Stevens v. Buff. and N. Y. C. R. R. Co., 31 Barb., 590, 612, 613, 619.) The mortgage being void as to the judgment, it was void as to the purchaser thereunder, although he had knowledge of the mortgage. (Hildreth v. Sands, 2 J. Ch., 35, 49, 50; Sands v. Hildreth, 14 J. R., 493, 497, 498; Bumpus v. Platner, 1 J. Ch., 213, 219, 220; Griffith v. Griffith, 9 Paige, 315, 318.) As Fox was exercising his legal right as a creditor, fraud cannot be predicated of the judgment,although he and Perkins may have intended to cut off thereby plaintiff’s mortgage. ( Wilson v. Britton, 26 Barb., 562; 6 Abb., 97; Dickinson v. Benham, 10 id., 390; 12 id., 158; Powers v. Graydon, 10 Bosw., 630; Holmes v. Holmes, 3 Paige, 363.)</p>

This action was brought upon a policy of life insurance issued by the defendant to the plaintiff, upon the life of one Isaac Uewning, on March 12th, 1868.

(Reported below 5 Lans, 160; 59 Barb., 385.) This action was brought to foreclose a mortgage executed by Philo Stevens to Benjamin Rott, to secure the payment of $2,800. It bears date July 18th, 1833, and was recorded August 8th, 1833. It covered, when- given, four pieces of land, viz.: Three in the then village of Oswego and a large tract in the town Scriba.

(Reported below, 61 Barb., 310.) This action was brought to have certain leases, obtained by the defendant during the existence of a copartnership between him and plaintiff, for terms to commence at its termination, of premises leased and occupied by the firm; declared to have been taken for the partnership, and to have it adjudged that the defendant held them as trustee for the partnership.

(Eeported below, 5 Lans., 358.) The action was brought to rescind a contract between the parties for the exchange of lands and personal property, and to set aside conveyances made in pursuance of the contract. The ground for rescission was that the defendant had made to the plaintiff false and fraudulent representations as to his lands. The answer denied the allegation of fraud.

Court, in the second judicial department, affirming a judgment entered at the Circuit. This action was brought upon a policy of marine insurance. At the trial certain facts were admitted by the parties for the purposes of the action, in substance as follows : On October 25, 1866, William Fry Angelí was the owner of an insurable interest in the ship Sunda, which was then lying in the port of Liverpool, and was perfectly seaworthy.

This action was brought to recover the value of work done and materials furnished by the plaintiff for the defendant, in the alteration of an old building in the city of New York, and converting it into a warehouse.

This action was brought to recover damages for injuries to the plaintiffs property occasioned by blasting rocks for the construction of defendant’s railroad.

(Reported below, 5 Bans., 80.) This was an action brought against defendant, as late under sheriff of the county of Monroe, to recover moneys collected by him after the death of Alonzo Chapman, late sheriff, by whom he was appointed. In December, 1867, plaintiff’s assignors commenced an action in the Supreme Court against one Easton and an attachment was issued therein to said Chapman, then sheriff.

<p>Where a policy of fire insurance contains a provision declaring it void in case of a sale, transfer or change in the title of the property, voluntary or by legal process or judicial decree, an adjudication of bankruptcy in involuntary proceedings against the insured, and an assignment by the register under and in pursuance of the bankrupt act (§ 14,16 U. S. Stat. at Large, 517), is a transfer and change of title by judicial decree within the meaning of the provision, and vitiates the policy.</p> <p>Sta/rhweather v. Cleveland (2 Abb. [U. S.], 67) distinguished.</p> <p>The effect of such transfer is not changed by the fact that, by the terms of the policy, the loss is made payable to another who is a mortgagee of the property, as it is not his interest as mortgagee which is insured.</p>

(Reported below, 53 Barb., 578.) This action was brought to recover damages for a breach of covenant contained in the assignment of a judgment by the defendant to the plaintiff. On the 2d day of September, 1861, the defendant and one Rich, who-were partners, -recovered a judgment against Erasmus S. Doran, James E. Doran, Allen H. Gillett, and Homer W. Wooster, who were also partners, for damages and costs, $1,038.46.

(Reported below, 6 Lans., 158.) The action was brought to restrain the defendant from using an alleged trade mark, “Number 10,” on the ground that it was a part of the plaintiff’s trade mark.

<p>Where the by-laws of a corporation, lawfully adopted in pursuance of its charter, authorize and require its certificates of stock to be issued under the corporate seal and signed by its president and treasurer, in the absence of any express provision or exception, no other or different form of certificate is required in the case of stock owned by one of the "officers named; but they are authorized to issue certificates to themselves in the same manner as to other stockholders.</p> <p>Accordingly, lidd, where the treasurer of such a corporation, upon the faith and pledge as collateral of spurious certificates, drawn up and executed in the form and manner prescribed by the by-laws (the signature of the president having been negligently affixed), purporting on their face to be of stock owned by the treasurer, obtained a loan of one acting in good faith and in ignorance of the fraud, that there was nothing upon the face of the certificates to notify the lender of any defect in the title; and that the corporation was liable to him for the damages.</p>

(Reported below, 3 J. & S., 1.) This action was brought to recover damages for the alleged unlawful taking and carrying away of a stock of goods belonging to plaintiff. The facts appear sufficiently in the opinion. Defendants in taking the goods were trespassers.

' This action was upon a promissory note, dated Jan'uary 2, 1863, signed by the defendant. The defence was that the defendant was a married woman when she gave the same, and that she gave it as surety for her husband. It appeared upon the trial that plaintiff’s intestate sold a span of horses, making the bargain with Daniel W. Dunning, defendant’s husband, and took in payment for them one yoke of oxen and this note.

The complaint alleged in substance that Livonia A. Gulick, on the 31st day of December, 1868, at Starkey, Yates county, made her promissory note, by which, for value received, she promised to pay to her own order $2,000, three months after date, at the Central National Bank in the city of New York.

(Beported below, 61 Barb., 597.) This was an action against defendants, late assessors of the town of Ava, Oneida county, to recover damages by reason of an alleged wrongful assessment, and a sale of plaintiff’s property by virtue thereof. Plaintiff proved, -in substance, that he owned a farm lying partly in the town of Ava and partly in the town of Boonville. He occupied .and worked the whole as one farm.

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, reversing a judgment in favor of plaintiff entered on the report of a referee. (Reported below, 6 Lans., 162.)</p> <p>This action was brought to compel the collectors of the towns of Ava and Boonville, in Oneida county, to inter-plead, each of said collectors having a tax on his tax list, and a warrant against the plaintiff, who owned a farm lying partly in each of said towns.</p> <p>The complaint stated, in substance, that, prior to and during the year 1869, the plaintiff was the owner and occupant of 400 acres of land, occupied by him as an entire farm, which was partly situated in Ava and partly in Boonville, no portion of it being unoccupied. Prior to April 30, 1862, he' resided on that part of the farm lying in Ava; since that time he has resided on that portion of his land situated in Boonville. In the year 1869, the assessors of the town of Ava assessed the plaintiff for the whole value of his farm, though he presented the requisite affidavit that his residence was not in the town. This assessment was delivered to the board of supervisors of the county, who issued a warrant for the collection of his tax, amounting to forty-one dollars and eighty-five cents. The warrant was thereupon delivered to the defendant, Fox, collector of the town of Ava, who, in that character, claims payment of such tax and his fees, and is about to proceed to enforce such payment by levy and sale of the plaintiff’s property. In the same year the assessors of the town of Boonville assessed the plaintiff for the same property, on the ground that his residence was in that town, whereupon similar proceedings on the part of the officers took place as in the town of Ava, for the collection of a tax amounting to the sum of sixty-one dollars. Each of these are the annual tax for the farm of the plaintiff for the year 1869. The! complaint further set forth that the plaintiff was ignorant of the respective rights of the defendants as collectors, and that he was willing to pay the tax to either of the defendants, as | the court might direct, and offered to pay the money into court. There was also an allegation that the action was not brought by collusion with either of the "defendants. j</p> <p>On this state of facts the plaintiff prayed for an injunction restraining the defendants from taking any proceedings in relation to the tax or its collection, and for a direction that the defendants should interplead. !</p> <p>The referee found the facts substantially as set forth in the complaint, exceptas to the plaintiff’s ignorance of the rights .of the collectors, as to which ¡there was no finding, and decided, as matter of law, that the plaintiff has no cause of action against the defendant Graff, collector of the town of Boonville, but that the defendant Fox, collector of the town of Ava, should be restrained fronji enforcing the collection of the tax under his warrant.</p> <p>Judgment was entered on the report of the referee aceordingly, awarding a perpetual injunction, and declaring the said tax and the warrant last mentioned void and of no effect against the plaintiff or his property.</p> <p>A bill of inter-pleader was proper in this case. (Thomson v. Ebbets, 1 Hopk. Ch., 272, 273; Mygatt v. Washburn, 15 N. Y., 319; 4 Paige, 392; 1 Cow., 692, 703.) j It was error to treat the complaint as a strict bill of interpleader. (M. and H. R. R. Co. v. Clute, 4 Paige, 384-396.) Plaintiff was only taxable in Boonville. (Prosser v. Secor, 6 Barb., 607; Bailey v. Buell, 59 id., 158; People v. Suprs. Chen. Co., 1 Kern., 563; Mygatt v. Washburn, 15 N. Y., 316; Nat. Bk. of Chem. v. City of Elmira, 53 id., 49-59; Barhyte v. Sheppard, 35 id., 238.)</p> <p>The action, as brought for interpleader, would not lie. (4 Paige, 384; 1 Clarke, 42.) Assessors are public officers of the State. (1 Kern., 392; 21 N. Y., 82.) Their determinations can only be reviewed in a direct proceeding for that purpose, and not collaterally. (6 J. Ch., 28; 3 Den., 117; 24 Barb., 419; 35 N. Y., 238; 4 Abb. [N. S.], 469; Bk. of Comm. v. Mayor of N. Y., Ct. App., Jan., 1871.) The assessors had jurisdiction in this case. (24 Barb., 419; 35 N. Y., 238; 48 id., 93.) The collector cannot be sued to try, collaterally, the regularity or validity of the assessment. ( Westfall v. Gere, 3 Lans., 151; 48 N. Y., 93.) An injunction would not lie to restrain an alleged or erroneous or illegal assessment. (6 J. Ch., 28; 26 Wend., 132; 14 N. Y., 534; 25 id., 312; 37 id., 511-513; 40 id., 154; 2 Abb. [N. S.], 233; 4 id., 469; 8 id., 277.) Where there is an adequate remedy at-law there is no jurisdiction in equity. (2 Story’s Eq. Jur., § 807; Willard’s Eq. Jur., 314; 5 J. Ch., 28; 3 Keyes, 182.)</p>

(Reported below, 2 J. & S., 304.) This action was brought by the plaintiff against the defendant as a stockholder in “ The American and Mexican Silver Mining Company,” a corporation organized under the general manufacturing act (chapter 40, Laws of 1848), for the recovery of a balance due to him for services rendered to that company and for which judgment had been recovered against it, after the return of an execution issued thereon wholly unsatisfied.

This action was for the claim and delivery of personal property. The property in question was 7,700 bushels of Michigan amber wheat. The plaintiffs made claim to it, under the following circumstances: T. W. Griffin & Co. were dealers in grain in the city of Mew York. Their correspondents at Toledo, Ohio, were Carrington & Casey, grain commission merchants, who purchased the grain in litigation.

Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon the report of a referee. (Reported below, 62 Barb., 188.) This action was brought by plaintiff as the assignee in bankruptcy of Elias S. Oppenheimer to recover moneys alleged to have been collected by defendant of said bankrupt in violation of sections 35 and 39 of the bankrupt act.

This action was brought to recover damages resulting from a collision which occurred between the plaintiff’s sloop Illinois and the propeller John Taylor, owned by defendant, on the 23d day of July, 1868, in the Hudson river.

The complaint in this action contained two counts; the first for an alleged balance due upon account from defendants, as copartners; the second setting forth an arbitration between the parties, and an award in favor of plaintiff for the sum of fifty-two dollars and forty cents, and one year’s interest. The answer contained: First. A general denial. Second.

(Reported below, 2 J. & S., 237.)- This action was brought to recover the amount of a policy of marine insurance issued in December, 1863, by the defendant upon a cargo of hay laden on the canal boat George R. Hale, on a voyage from New York to the city of Washington.

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment in favor of plaintiffs entered upon the report of a referee. (Reported below, 61 Barb., 205.)</p> <p>This action was brought by plaintiffs, as judgment creditors of defendants David Welch and William Welch, who composed the firm of D. Welch & Son, to set aside a general assignment for the benefit of creditors made by said defendants to defendant Lyon.</p> <p>It appeared upon the trial that at the time of making the assignment David Welch was an infant, nineteen years of age. The referee found this fact, and also that a debt of sixty-nine dollars and thirty-nine cents to one Darius Welch was provided for, which debt, in fact,"had no existence, and thereupon that the assignment was made to hinder, delay and defraud creditors, and was fraudulent and void as to them.</p> <p>Further facts appear in the opinion.</p> <p>The assignment was not void, because one of the parties was a minor. (Story on Part. [5th ed.] §§ 7, 101; Welles v. Marsh, 30 N. Y., 344-351; Gillett v. Stanley, 1 Hill, 121; 1 J. Cas., 127; 17 Wend., 119; 6 J. R., 257; People v. Mullin, 25 Wend., 698.)</p> <p>The assignment was fraudulent because one of the assignors was an infant. (21 How. Pr., 384; Burr. on Assnmts., 228; Welles v. Marsh, 30 N. Y., 344.) The referee properly held that the suit of Lyons, assignee, etc., v. Yates et al. was not a bar or estoppel to this action. (1 Greenl. Ev., § 530; 11 Tiff., 63; 5 Barb., 469; 2 Hill, 478, 480; Sweet v. Tuttle, 14 N. Y., 465; 52 Barb., 237.)</p>

<p>Where it appears by a deed that courses and' distances from a fixed and determined line were intended to control instead of monuments referred to, the latter will be disregarded.</p> <p>In an action of ejectment, plaintiff claimed under a deed to a railroad corporation which, after describing the premises conveyed as bounded on the southerly side by the lands of a third party, declared it to be the intention to convey a strip two rods in width on the south side of the center line of the grantee’s road. The land in controversy lay south of a line two rods south of such center line. It did not appear that at the time of the conveyance the northerly line of the lands of the third party referred to were marked by a fence or any fixed monument. Hold, that the fair inference from the description was that the center line o£ the railroad, as fixed and located when the grant was made, should control ; and that the distance designated limited the extent of the grant.</p>

This action was brought to recover for two oxen killed by a train upon defendant’s road. The facts, as found by the court, are substantially as follows: The defendant is a foreign corporation, created by the laws of Connecticut.

This action was upon a guaranty. On the 13th of September, 1855, the plaintiff leased to Messrs. Hilliard '& Bourne a village lot, with the buildings thereon, situate in the village of Lyons, Wayne county, for the term of five years, commencing on the first day of October then next; to which lease Alexander B. Williams, the defendant’s testator, appended his guaranty, guaranteeing the payment, by the lessees, of the rent reserved therein.

This action was brought upon an alleged contract for employment and service.

This was an equity action, brought for the purposes hereinafter stated.

This was an action of ejectment, brought by the. plaintiff as tenant in possession, for the term of thirteen years, from May 1, 1856, of the rear part of lot 189, Church street, Hew York city; and being also in the rear of thirty-seven White street.

This action was for a divorce, on the ground of adultery. The complaint, after charging the defendant with the commission of adultery in December, 1869, and January, 1870, with one John Shay, at a house on John street, in the city of Elmira, in this State, contained the following: “ That, at divers times between the 1st day of May, 1869, and the commencement of this action, and at divers places in said city of Elmira, but at what particular.times and places plaintiff is…

This action was brought plaintiff’s commissions, as a real estate broker, upon ai? alleged sale of real estate for the defendant. 1 The facts appear sufficiently in '.the opinion. Plaintiff was the procuring cause of the sale.

(Reported below, 5 Lans., 214; 58 Barb., 152.) This action was brought against defendants to recover damages for an alleged, unlawful rejection by them, as inspectors of election, of… Held: on demurrer, to be bad. (See 58 Barb., 152.) Ho evidence was offered at the trial to show the fact of desertion. On the trial the answer was amended so as to contain a direct denial of the charge of malice contained in the complaint, or of a wilfull refusal to allow the plaintiff to vote.

(Reported below, 7 Lans., 14.) This action was brought to recover for the use of plaintiff’s horses and carriages, hired by a committee of the defendant’s common council. At a meeting of the common council of the city of Albany (of which the plaintiff was a member), in June, .1869, a resolution was adopted, for which plaintiff voted, to appropriate $2,500 for the purpose of defraying the expenses of celebrating the then next fourth of July.

The action was to recover damages for entering upon plaintiff'’s premises and removing therefrom a building. The defendants justified as commissioners of highways of the town of Ellicott, Chautauqua county, claiming that the locus in quo was a public highway, and that the building was an obstruction of public travel.

. This action was brought against the defendants as partners, alleged to be doing business under the firm name of “ Secor, Swan & Co.,” for goods purchased by that firm.

(Reported below, 62 Barb., 311.) The action was brought to restrain the defendant from interfering with a private road which it was claimed existed over the defendant’s land in the plaintiffs’ favor, and to recover damages for obstructing the same. The following facts appeared at the trial: In March, 1842, John Arnsberger and Thomas Miller were respectively the owners of two farms in the town of Fayette, Seneca county.

(Eeported below, 5 Lans., 519.) The action was brought for the alleged conversion by the defendants of a quantity of law blanks belonging to the plaintiffs. Plaintiffs were book-sellers and stationers in the city of Albany. The defendants dealt largely in materials used in the manufacture of paper. Their course of business was to purchase from junk shops and small dealers rags, old paper, etc., in bales, and to sell to the manufacturers.

This action was brought against the defendant as indorser of a promissory note for $500, given by one John Coleman to the order of the defendant, and by him indorsed to the plaintiff. The complaint alleged that the note was taken by the plaintiff in renewal of a like note held by him, surrendered at maturity; that the first note was given for a loan of $500 made by the plaintiff to Coleman.

The complaint in this action alleged that the parties, on the 13th day of May, 1869, entered into a contract which was set forth, by which defendant agreed to sell and to convey certain premises to the plaintiff at a specified price per acre, wdiich plaintiff agreed to pay as follows : Ten dollars at the time of the execution of the contract, $800 July 1st, 1869, and the balance “ on or before the 1st day of April, 1870. ” Defendant agreed, on receiving such payment at the…

(Reported below, 6 Lans., 296.) This action was brought to recover surplus moneys arising on foreclosure sale. The facts sufficiently appear in the opinion. The surplus arising from the foreclosure sale was personal property, and the plaintiff, as administratrix, was the proper person to sue for it. (Bogert v. Furman, 10 Paige, 496; Swazey v. Wills, 1 Bradf., 495; 1 Duer, 308; Graham v. Dickinson, 8 Barb.

(Reported below, sub nom. Mosey v. City of Troy, 61 Barb., 580.) This action was brought by plaintiff’s intestate, Julia A. Mosey, who died after the appeal to this court, to recover damages for personal injuries alleged to have been occasioned by defendant’s negligence. On the 10th day of January, 1870, while walking upon one of the sidewalks in the city of Troy, she slipped and fell, and was severely injured.

<p>Where a married woman, acting under a secret trust for her husband becomes a member of a copartnership, as between her and her copartner, she is to be regarded as the owner of the interest she represents, and may maintain an action for a dissolution of the copartnership and for an accounting.</p> <p>Conceding that the act of 1860, concerning the rights and liabilities of husband and wife (chap. 90, Laws of 1860) does not authorize" her to enter into a copartnership business in which she has no interest save as trustee for her husband, and that, as between her and her husband or his creditors, he would be considered the partner ; this will not defeat her action, at least where no question is raised as to the non-joinder of her husband.</p>

This action was brought by the plaintiff, as assignee of a judgment recovered by Caleb H. Shipman and others against the defendant, May 19th, 1859, for $194.17.

This action was brought to compel the determination of claims to real property. Defendant set up in his answer, among other things, that plaintiff had not been in actual, possession “ for three whole years before the commencement of the action.” Plaintiff proved title and occupation by her predecessors in title down, to 1858, since which time the premises had been vacant, unfenced and unoccupied.

<p>Under- the provisions of the statute relating to proceedings by and against corporations (3 R. S., 468, § 89, et seq.), an application may be made by a stockholder, without the intervention of the attorney-general, to restrain an insolvent insurance corporation from exercising its corporate rights and franchises, and for the appointment of a receiver.</p> <p>The Supreme Court, therefore, has jurisdiction to appoint a receiver in an action brought by a stockholder to restrain corporate action; and a receiver thus appointed becomes vested with the property and effects of the insolvent corporation.</p> <p>As to whether, in such action, the court has jurisdiction to dissolve the corporation, qumre.</p> <p>In an action brought by the receiver of a domestic insurance corporation upon promissory notes which were part of the assets and came to his hands as such receiver, which notes were made by a resident of Mass., but were payable in this State, defendant pleaded in bar that after the appointment of plaintiff the debt due upon the notes was attached in an action in Mass, brought by a creditor against the corporation. Held, that the notes were property, the situs of which was in this State, and passed to the receiver for the benefit of all the creditors; and that the proceedings in Mass, did not affect his title'or right to recover.</p> <p>A subsequent attachment by a creditor in this State would not have affected plaintiff’s rights; and the rule of national comity does not give foreign creditors a better position, in this respect, than domestic.</p>

■ Appeal by the plaintiff from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of the defendants entered on the dismissal of the plaintiff ’s complaint.

<p>Plaintiff purchased at the office of the B. and O.R. R. Co., at W., a coupon ticket from W. to B., over several connecting railroads, the last of which was that of defendant. She received a check for her baggage, with the names of all the roads stamped upon it. On arriving at B. she demanded her baggage, but it could not be found, and no trace was found of it after it was checked. In an action to recover for the loss, held, that in the absence of proof that the baggage came into defendant’s possession, it was not liable; that the ticket and check furnished no evidence that the connecting roads were jointly engaged in the business of carrying passengers; but the facts were consistent with two theories, either that the B, and O. R. R. Co. made an entire through contract, it employing the other companies, or what was more probable, that each company was the agent of the others to sell tickets and check baggage for the others; and, in either view, defendant would not be responsible without proof that the baggage came into its possession.</p>

1 Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, affirming a judgment in favor of plaintiffs, entered upon the report of a referee. (Reported below, 6 Lans., 319 ; 63 Barb., 349.) The action was brought to recover of the defendant, as , president of the American Merchants’ Union Express company (of which company the plaintiff Westcott was a stockholder), the value of a package of furs.

<p>The intent of a grantee as to his future action in the use of the granted premises, whether the same be secret, or expressed and known to the grantor at the time of the conveyance, cannot, in any way, affect the rights of the parties under the grant, or enlarge its terms.</p> <p>Plaintiff owned certain premises, upon which were a saw-mill and dam. He conveyed to H. a portion of the premises below the dam for the purpose of having a tannery erected thereon. By the deed H. was granted the right to take water from the pond for various purposes, and, among others, for “ carrying away the spent bark.” Plaintiff retained lands below that so deeded. Held, that the deed did not authorize H., or his successors in title, to discharge the spent bark into the stream so that it would lodge therein upon plaintiff’s premises, or obstruct the flow of water and set it back upon plaintiff’s wheel.</p>

<p>Plaintiff’s complaint alleged, in substance, that plaintiff’s firm deposited with defendants, as their bankers and agents, various sums of money, also United States bonds and bank stock, as special deposits, under an agreement that they should, at all times, be subject to the order and control of said firm, and that no interest should be paid therefor; that defendants delivered specified portions of said deposits, but, demand being made, refused to deliver over the balance of said deposits, and wrongfully and unlawfully detained the same, and for the balance plaintiff demanded judgment. Held, that the averments were to the effect that the deposits were with defendants, as bankers, subject to the depositor’s drafts or order, under an, agreement which did not contemplate the return of the specific money or thing deposited, but that defendants could use it in their business without interest; that, therefore, the facts alleged constituted an action for breach of contract, not one in tort; and so, that it was in its nature, referable.</p> <p>An objection to a deposition taken upon commission, that the witness failed to answer certain cross-interrogatories, should be raised before trial upon motion to suppress the testimony; a general objection upon the trial to the admission of the deposition upon that ground is not tenable.</p> <p>Where the answer in an action sets up a counter-claim and the case results in a judgment for defendant for a balance found due him, he is not limited, under section 809 of the Code, to an extra allowance of five per cent upon the amount of the recovery, but the allowance may be based upon the amount claimed by plaintiff.</p>

This action was upon a policy of insurance upon the life of Maj. Alfred Foot, plaintiff’s husband. On the 24th day of January, 1867, the plaintiff, by her husband, made an application to the defendant for a policy of insurance upon his life. The application contained certain questions to be answered as to the health and condition of the husband.

The complaint in this action alleged: “ That Mary Rathbun, on or about the 6th of March, 1866, was the owner of a quantity of household furniture, of the value of $250, of which the defendant became possessed, and sold the same and received therefor $250, and thereby became indebted to her in that amount; and that she afterward, and before the commencement of this action, sold and assigned to the plaintiff her claim against the defendant therefor, who thereby became the…

The summons in the action was for relief. The complaint set forth that, in the month of December, 1858, one Nathan Hofflin, at San Francisco, California, appointed the defendant, who then resided in that city, agent to sell for him certain property in California, then belonging to him, and to collect certain claims owing to him from persons in the State, and that the defendant accepted the trust, and agreed duly to account to Hofflin for the proceeds of sales and collections…

This action was upon an alleged insurance. The complaint alleged an insurance of plaintiff’s assignors by defendant, on the 12tli day of December, 1865, through one Grannis, its agent, at Macón, Georgia, upon forty-one bales of cotton, for the amount of $8,000, against loss or damage by fire or otherwise during its transportation from Macon to Sew York city, and alleges damage by fire on the eighteenth day of December to four bales to the amount of $600.04, and that due…

This was an’action in the nature of one to rescind a contract on the ground of fraud. In March, 1857, the parties entered into a contract, in and by which plaintiff agreed to sell and convey to defendant Barnard a house and lot in Rochester, he to' receive therefor a conveyance of certain Iowa lands and $1,000 in money.

This action was brought to recover the amount of an order drawn by one J. Gr. Hoffman upon defendant, in favor ■ of plaintiff. Held: by all of the commission, that as the findings of fact of the referee were to the effect that Hoffman abandoned the work, and, without excuse, willfully neglected fully to perform the portion required to make the defendant liable for the fifth payment, the installment never became due; that in such case a substantial performance…