Volume 62 — Barbour's New York Supreme Court Reports

<p>In an action to recover the price of goods sold and delivered on credit, there was no evidence to show any agreement about the delivery of the property by the vendors to the purchaser, or as to the manner in which, or the time when, it was to be made; or that the purchaser ever received the goods; or that he knew that they had been, or were to be, delivered to a railroad company for him. Held that in the absence of some order, or agreement, on the part of the purchaser to have the property sent to- him by railroad, or of some evidence in regard to usage, or the course of "trade, from which an agreement to have it so sent might be inferred, a delivery to the railroad company was no delivery to the purchaser. •</p> <p>fletó, also, that without some such evidence, a receipt for the property, given by the agent of the railroad company to the vendors, was no evidence against the purchaser that the property had been received by the company on his account.</p> <p>That before such a receipt could be made evidence to charge the purchaser, it was necessary for the vendors to show that they were authorized by the purchaser to send the property to him by that railroad company.</p> <p>Where the defendant does not appear on the trial of such an action, it is incumbent on the plaintiffs not only to prove a delivery of the property to the defendant personally, or to some person designated by him to receive it, blit to prove it by competent and proper evidence; and if they fail in either respect, the defendant may take advantage of the error, on appeal.</p> <p>Where the complaint is for goods sold and delivered, without proof of delivery, . the cause of action stated in the complaint, and upon which issue is taken, is not made out. If the defendant does not appear, on the trial, and there- , fore waives nothing, and there is no evidence in respect to a delivery, a < judgment in favor of the plaintiff should be reversed, for that reason.</p>

The action was commenced in a justice’s court, to recover the possession of personal property, alleged in the complaint,' to be of the value of $40. The defendant appeared and answered, denying the complaint, and alleging that the property was the property of one George Knight. Issue being thus joined, the defendant demanded a trial by a jury of twelve men. The justice decided that he would summon twelve men from whom a jury of six men should be drawn to try the issue.

APPEAL by the defendant from a judgment entered upon the report of a referee. In June, 1853, the plaintiff' Chaplin had an account against one Sumner Pitts, of about $180, against which Pitts had an offset of an undetermined amount. Pitts had •built a house for Wilkinson, at a contract price of $675, on which Wilkinson had paid $275; and Pitts was threatening to sue Wilkinson for the balance.

ACTION against the defendants, as trustees of the “ Stevenson Manufacturing Company,” to recover the amount of certain debts of the company under and by virtue of the statute. (2 JR. 8. 661, § 12, 5th ed.) The defendant Easterly alone defended. The corporation was organized in February, 1868, under the general act, and its place of business was Auburn, where all the parties resided, and the number of trustees was six, who were named in the certificate.

WRIT of error to the Jefferson oyer and terminer. Held: all the evidence which pertained solely to the other specifications, which was objected to, was erroneously received. VII.

<p>Necessary Preliminaries to Appointment of Commissioners of Appraisal, under General Railroad Act.</p> <p>Before commissioners of appraisal can be appointed under the general railroad act, the preliminary provisions of the act must be complied with strictly and chronologically.</p> <p>The notice to actual occupants of the route intended to be adopted, and of the filing of the map, required by section 33 (as amended, Laws of 1871, ch. 560), must be given ; and the fifteen days thereafter allowed the owner to apply for a change of the route must elapse, before commissioners can be appointed.</p> <p>A map containing only a single line showing the general course of the proposed railroad, is not a sufiicient compliance with the act. It should show the extent of the land proposed to be taken, and should be sufficiently accurate and full to enable a plain man to understand the location and boundaries of every parcel. The profile required by the act should be upon the same sheet.</p> <p>Commissioners of appraisal cannot be appointed until an attempt to agree with the owner has been made and has failed.</p>

THIS is a motion for a new trial, made by the plaintiff on a bill of exceptions, for a nonsuit of the plaintiff at the Ulster circuit.

OH Saturday, the 12th of April, 1862, about 7 p. m., a stranger went into the defendant’s office, then open according to its usual custom, and presented a check upon… Held: he pays at his peril. Such was the case of Goddard v. The Merchants’ Bank, (4 Comst. 149.) IV. The name “ Truesdell,” forged upon the face of the check, importing that the teller had certified it, was a circumstance tending to create the mistake of payment by the discount clerk in the plaintiff’s bank.

Prior to 1843, Thomas Cavana, the father of the plaintiff, Clara M. Crain, and of the defendants John Cavana and Catharine A. Percival, intermarried with the defendant Cynthia Cavana.

I FT January, 1860, the plaintiffs commenced an action to ■ recover from the defendant the sum of $2491.49, alleging that on or about January 1, 1857, they loaned to the defendant $1000 in money, and executed to him their three promissory notes, at one, two and three years, for the aggregate sum of $6500, on which they made payments to the amount of $1491.49.

APPEAL by the plaintiff from a judgment entered upon the report of a referee. The action was brought to recover damages ' for an alleged fraudulent warranty on the sale of a horse. The answer was a general denial.

ACTIOS for a divorce on the ground of adultery. The answer denied the several acts of adultery alleged in the complaint, and set up, as a defense, the adultery of the plaintiff’. Issues having been settled, were tried at the Onondaga circuit, before a justice of this court without a jury; a trial by jury having been -waived by the parties.

ÁPPEAL by the plaintiff from a judgment of the county court of Onondaga county reversing the judgment of a justice of the peace. A. L. Johnson recovered a judgment in a justice’s court, against Robert Stokes, the husband of the plaintiff. On this judgment execution was issued to the 'defendant, a constable of Syracuse, who called at the residence of said Robert, and demanded payment of the execution, which was refused.

The complaint alleged that the defendant was a corporation, duly chartered under the laws of this State, having its office at Buffalo, whose business is the transportation of merchandise and property on the internal waters of this State; that in'the boating season on the Erie canal, in the year 1859, said defendant owned and navigated the said Erie canal with the canal boat Rose Bud; that said canal boat Rose Bud had a catch on the under side thereof, which would catch the…

APPEAL by the plaintiffs, from a judgment entered upon the report of a referee. The action was brought against the defendant as a common carrier, to recover the value of six bales of cotton delivered to it for transportation, and destroyed by fire.

APPEAL, by the plaintiff) from a judgment entered at a special term, dismissing the complaint. In an action brought in the Supreme Court, by the present plaintiffs, against one Mrs. Boxius, they obtained a warrant of attachment, and the sheriff', thereunder, attached the property of Mrs. Boxius. A few days thereafter an undertaking, under section 241 of the Code, executed by the present defendants, was given, approved and filed, and the property released.

APPEAL, by the defendants, from a judgment entered upon the report of a referee. The action was brought upon a policy made June 4, 1851, by the defendant, the International Life Assurance Society, (then entitled the Rational Loan Fund Life Assurance Society,) of London, upon the life of James Mar-tine, of Fayetteville, Rorth Carolina, in favor of Hester Martine, his wife, for $5000.

ACTION by the plaintiff, as assignee in bankruptcy, to recover ' moneys collected by the defendants of the bankrupt, in fraud of the act to establish a uniform system of bankruptcy, &c., passed March 2, 1867, and the amendments thereto.

APPEAL by the defendant from a judgment entered upon the report of a referee. The action was brought against the defendant as indorser of a promissory note. Held: that the plaintiff was entitled to recover.

THIS action was brought by the plaintiff to recover damages, as administratrix of her deceased son, David J. Tinney, .who was killed while in the service of the defendant, as fireman on a locomotive, on the 30th day of May, 1871, at Bast Albany.

THIS action was brought to recover the possession of a piece of land situated in the village of Sandy Hill, in the county of Washington. It was tried at the Washington county circuit, held at Sandy Hill, in November 1870. The jury rendered a verdict in favor of the plaintiffs, for the recovery of the possession of the land in dispute; on which verdict judgment was entered in favor of the plaintiffs against the defendant, with costs.

THIS action was tried at the Cortland circuit, in April 1870, when the jury rendered a verdict in favor of the plaintiffs for $1730 damages. The defendants made a motion, at a special term, for a new trial, upon a case and exceptions; which motion was denied, and the defendants appealed to the general term of this court.

11HIS action was brought to. recover damages for the defendant entering upon a piece of flat land covered by the waters of the Hudson river, which the plaintiff claimed to own; which land is described in the plaintiff’s complaint as follows, viz : “ All that portion of the flats or fishing ground in the Hudson river, lying below the mouth of the Esopus creek, opposite a place called Grlasco, and which was allotted to Christina Demyer in a division of the property of William…

MOTIOXfor judgment upon a verdict for the plaintiff, subject to the opinion of the court. On the 31st of May, 1860, Thomas -E. Billington purchased a horse of Catharine Comins, and gave in exchange his own note for $100, payable to Mrs. Comins or bearer, with interest, in five months thereafter. At the bottom of the note was a memorandum in.these words: “Given for 1 bay horse.

<p>The proponent of the will of an aged man, for probate, is not required to prove that the testator’s mental'faculties were those of a man in middle life, and of unimpaired physical powers. ' It is enough that he had sufficient mental "capacity to fully comprehend the claims of his several children on his bounty, and to understand how to adjust and satisfy those claims. »</p> <p>To do this, the testator must know who have claims upon him, and the measure of those claims. To do this, he must understand fully what he has done, if any thing, for each or either, and the peculiar claims of any upon his justice or generosity.</p> <p>It is a mistake to suppose that a testator is bound to make a will that others, acquainted with him and his situation, may deem just. No greater injustice could be done, in many instances, by a testator, than to so dispose of his property as to be what the world would call just. JPer Mullís, J.</p> <p>Failure of memory being a natural attendant upon age, will not incapacitate an aged person from making a will.</p> <p>Although the proposition that while a man’s intellect may not be so weak as to render him incapable of making a will, yet it may be in that feeble state that he readily and easily becomes the victim of the improper influences, of. such unprincipled and designing persons as see fit to practice on him, is doubtless correct, yet mere weakness of intellect does not prove undue influence. There must be some evidence of the influence, and of its improper exercise, to justify the rejection of a will on that ground.</p> <p>Direct evidence of undue influence is not necessary. It may be, and most frequently is, a legitimate inference from other facts and circumstances in the case.</p> <p>The unnatural exclusion, by a testator, of his only daughter, with whom he seems to have had no difficulty, to whom he had never given more than a very trifling pittance, and who was in need of aid from him, from a just and equal share of his estate, is a strong circumstance to show either mental in-' capacity, or undue influence.</p> <p>Where the circumstances under which a will was executed, and the condition of the testator, mental and physical, and his situation in the family of the principal legatee, at the time, were such as to excite suspicion of undue influence; Held that before a will executed under these circumstances, which gave, substantially, all the property to one ■ of several children, was y admitted to probate, it was.due to those cut off that the case should be thoroughly examined; and that a case was therefore presented which should be submitted to a juiy, upon issues framed for that purpose.</p>

APPEAL by the plaintiff from an order made at a special term, setting aside a verdict, and granting a new trial.

APPEAL by the defendant from a judgment, entered upon the report of a referee, in a foreclosure suit. This ease has been twice tried before the referee, and has been once before the court at a general term thereof, and a new trial granted. {See 35 Barb. 96.) Upon the first trial, the referee held that the. answer of usury did not set up facts sufficient to constitute a defense, because it did not appear that this defendant was in any way a surety for John W. Dickson.

THIS action was brought to foreclose a mortgage held by the plaintiff' executed by the defendant Howell, upon which a decree of foreclosure was entered, and sale advertised by the sheriff of Lewis county, as referee, to take place on the 20th of January, 1872, “ at Howell’s Hotel,. in the village of Lowville, at 10 o’clock A. m.” On that day, as claimed by the plaintiff, the premises were sold by the sheriff', as referee, at public auction, and were struck off to the…

The complaint alleged, 1st. That one Alfred Hubbell, in his lifetime, was lawfully seised in fee and possessed of the premises therein described; and being so seised and possessed thereof he died in 1853, intestate, leaving Mary Hubbell his widow, who died -in 1855, intestate, and Alfred M., Mathew arid Albon H. Hubbell, his only heirs at law, then minors.

The action was’brought to recover the value of a span of mules, belonging to the plaintiff, alleged to have been drowned, in consequence of, and by the wrongful act of the defendant. Held: in 1855, that the railroad was not liable,, and the former decision in -Moshier’s case was overruled. In both cases it was held that the railroad company was not bound to fence or erect guards or screens between the turnpike and their railway.

APPEAL, by the plaintiffs, from a judgment entered on the report of a referee. The facts are sufficiently stated in the opinion.

ACTIOS” for thé taking and conversion of personal property, consisting of hay and other crops, and horses. The ownership of the property in question was conceded to have been in the plaintiff! The taking and sale of the property were conceded to have been done by the defendant.

ACTIOH brought to enforce a paroi agreement alleged to have been made by Conrad Honness, the defendants’ intestate, to give the plaintiff $2000, in consideration of her removing from the State of Hew Jersey, and taking up her residence at Corning, in this State, where the intestate resided.

THIS action was brought to recover damages sustained by the plaintiff, by reason of the defendants discharging and throwing'tan bark from their tannery on to the plaintiff’s land and into Fish creek, thereby obstructing the race and creek, and setting the water back on the water wheels in the plaintiff’s saw mill, upon said creek, above. On the trial, at the Oneida circuit, the jury found a verdict for the defendants.

APPEAL by the. defendant from a Judgment of the county court of Jefferson county, reversing a judgment of a justice of the peace. Held: that though, as a question of propriety, the decision of the justice was wrong, yet as it was a matter wholly in his discretion, no power existed in any appellate court to reverse his judgment on such grounds. ■ If a judicial officer, through dishonesty, ignorance or corruption, perverts or abuses discretionary powers confided to him…

¥m. J. Bacon, sole referee. The action was brought to recover against the defendant,. upon the written agreement or guaranty of the defendant, of which the following is a copy: “ Dunkirk, August 26th, 1859. John Crist, Esq: Dear Sir:—I will be and am responsible for any amount for which A. Burlingame may draw on you, for any sum not to exceed $1500, on condition of your acceptance of the same.

ACTION brought in-October 1859, to recover damages for an alleged injury to the plaintiff Sarah, on the 7th of July, in that year, caused by the defendant’s cars, in which she was a passenger, running off the track. The cause was tried in June 1860, when the plaintiffs had a verdict The general term set this aside and ordered a new trial.

THIS is an appeal from the decision of the surrogate of the county of Cayuga, rejecting the paper propounded as the last will and testament of Peter Douglass, deceased; and deciding that the same was void, on the sole ground that it was not duly published by the testator. The deceased was a very aged man, about 85, and quite hard of hearing, and quite feeble; but had at all times superintended all his business.

APPEAL, by the defendant, from a judgment entered upon the report of a referee. The plaintiff, as assignee of the firm of Martin Mara & Co., seek to recover the value of 200 barrels of salt, delivered by Mara & Co., to the defendant, in August and September, 1858.

APPEAL by the defendant, Mary S. Tunnicliff from a judgment entered on the verdict of a jury. This action was commenced to recover the amount of two promissory notes, one for $167.63, and one for $160.93, dated December 3, 1860. Each of said notes was made by G. Tunnicliff & Go., and indorsed by Mary S. Tunnicliff, the defendant.

THIS is an appeal from the decision of Justice Morgan, sustaining a demurrer to the plaintiff’s complaint, and directing judgment thereon for the defendant. . The first count of the complaint is founded upon a promise of the defendant to indemnify the plaintiff against loss by reason of delaying the sale of goods levied on by virtue of executions in his hands, as sheriffj against one Reuben J. Green.

<p>The rule applicable to all inferior and limited tribunals is, that their jurisdiction is never presumed, but on the contrary must be alleged and proved. . When the jurisdiction of the court or officer is made to depend on the return of process in a given form, or proof of a particular fact, and the return is not substantially in the form prescribed, or - the fact is not proved, the court or officer does not acquire jurisdiction, and the proceedings are utterly void.</p> <p>Where a justice of the peace acquires jurisdiction to issue an attachment under section 32 of the non-imprisonment act, against the property of a defendant, on the ground of the latter being a non-resident, and issues the same, a constable seizing property of the debtor thereon, and subsequently levying upon it by virtue of an execution issued in the attachment suit, will, by such seizure and levy, acquire—if- his return to the attachment be not defective—such a special property in the goods as will enable him to recover their value, against any person illegally appropriating them.</p> <p>But an attachment, and levy by virtue thereof, cease to bind the goods, and consequently the title of the officer levying determines, when a judgment is recovered, and a levy made, on the same goods by virtuo of an execution issued in the suit.</p> <p>After a levy upon the execution, the officer holds the goods by virtue of it, and not by virtue of the at.tachmént; except so far as the priority of levy on the attachment enures in favor of the execution.</p> <p>In cases of non-residents, an attachment issued against property, together with the inventory, must be served by leaving copies with the person in possession of the goods.</p> <p>And it must appear, from the officer’s return, that the attachment was served ■ in that manner; otherwise the service will be defective, and the justice will lose his jurisdiction, by reason of such omission.</p> <p>The levying of an attachment issued against property is a proceeding in rem, and it is complete when the levy, and a proper return, are made.</p> <p>The subsequent proceedings to obtain judgment depend, for their validity, on that of the proceedings under the attachment; and a creditor who, subsequent to the attachment, acquires a lien upon, or interest in, the property has a right to insist that the prior attaching creditor shall show a valid right to appropriate the property.</p> <p>This the prior creditor can only do by showing his proceedings to be in conformity to the requirements of the statute. If he fails to do this, he cannot hold the property, against a subsequent attaching creditor.</p> <p>It is a universal rule that when the defendant, in any proceedings, has never been personally served, nor appeared, and there is a defect in jurisdiction, it is fatal, and can be taken advantage of by any person interested in, or affected by, them. Per Mullís, J. ,</p>

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

THIS, action was brought, in a justice’s court, upon a promissory note, dated June 12, 1858, signed by one Latkrop and the defendant, and delivered to the plaintiff, Pinckney, to secure him on a note he had signed for the benefit of Lathrop. Pomeroy, the defendant, did not sign the note until several days after it had been signed by Lathrop and delivered to the plaintiff; and the note signed by Lathrop and Pinckney had also been delivered.

APPEAL by the defendant from a judgment in favor of the plaintiff, entered upon the report of Isaac Edwards, Esq., sole referee. The action grew out of a written contract, as follows : “ This agreement, made this 12th day of February, 1869, by and between C. 8.

<p>Upon an application to the surrogate, to revoke the probate of a will, on the ground of the incapacity of the testator by reason of Ms being under the age of 18 when the will was executed, the mother of the testator, is a competent witness to prove the time of his birth.</p> <p>A memorandum in the handwriting of a physician and surgeon', in an account book kept by him, of the time a child was born, at whose birth he attended, cannot he received as evidence of the time of the birth, after the death of the physician, unless it is sustained by proof of its truth.</p> <p>Where, upon appeal from a decree of a surrogate, it appears, on a review of all the facts and circumstances of the case, that although improper evidence was received by him, yet there was sufficient testimony of a proper character to authorize the decree, such decree will he sustained notwithstanding the error.</p> <p>On an application to the surrogate, to revoke the probate of a will on, the ground of the non-age of the testator, declarations of the testator as to what was his age, are inadmissible.</p> <p>Where a will was attended by the suspicious circumstances that it was made .about the time the testator received his bounty moneyas an enlisted soldier; that the executor in the will was his guardian, and received such money; that the will was drawn in the office of the guardian, who was an attorney, by the clerk of the attorney; that his guardian was a legatee in the will; and that by its revocation the estate would go to the testator’s next of kin ; Seld that probate of the will was properly revoked by the surrogate.</p>

APPEAL by the plaintiffs in each of the above actions from judgments of the county court of Delaware county, reversing judgments obtained in a justice’s court.

ACTIOS for assault and battery, tried _ at a circuit in Cortland county.

THIS action was brought upon a promissory note, to recover the amount due thereon. The note was originally given to one William E. Warner, and the plaintiff claimed to be the owner and holder of it. The answer, among other things, put in issue the ownership of the note, alleging that it was owned by one Newton. Hpon this issue the defendants had the affirmative.

<p>ACTIOH. by the plaintiff to recover for her services as organist, rendered in the defendant’s church edifice at Gansevoort, Saratoga county, between October 1869, and April 1871.</p>

THIS is a motion to set aside the defendant’s default and an assessment of damages against him, and for other and general relief; on the ground that the action had been settled by the parties, and the claim and cause of action set forth in the complaint released and discharged by the plaintiff. The action was assault and battery. It was put at issue, and was tried at a former circuit, where a verdict was rendered in the plaintiff’s favor, for $600.

APPEAL by the plaintiff' from, an order made at the circuit, denying his motion to set aside the special verdict, and for a new trial on the judge’s minutes. . The action was brought upon a promissory note. The defense was that the plaintiffs had, for a good consideration, extended the time of payment.

APPEAL by the plaintiff from a j udgment of nonsuit, ordered on the trial at the circuit, before Justice Morgan without a jury. The plaintiff alleged, in his complaint, that on or about the first day of March, 1860, at Syracuse, the plaintiff, at the request of the defendant, agreed to sell to said defendant all the malt which the plaintiff then had, and all that he should make up to the first of November, 1860, at and for the price, of 93J cents per bushel of 32 pounds.

THE defendant, who is wife of the plaintiff, was sued in a justice’s court for services rendered by the husband whilst they were living together as husband and wife. The parties had been living separate for a time, each working out on hire. By mutual agreement they commenced living together again, about the 1st of March, 1869, under circumstances stated in the opinion. The plaintiff recovered a verdict of $70.

<p>The validity of a proceeding for bonding a town to aid in the construction of a railroad must be determined by the law existing at the time the application is made. That is the law under which the county judge is authorized to proceed, and it constitutes the authority by which he is bound, in the exercise of his functions.</p> <p>By the law as it stood in June 1871, petitions were valid, although they were made upon the express condition that the railroad should be made upon a certain route, specified therein.</p> <p>There is nothing in either of the statutes governing these proceedings, which requires that the railroad shall be actually located, at the time when they are commenced.</p> <p>All that the statutes require, in this respect, is that the petition shall show that the petitioners desire that the municipal corporation in which they own property and are taxed shall create and issue its bonds, to the amount named, and invest them, or their proceeds, in the stock or bonds of such railroad company, in this State, as is named in the petition.</p> <p>Although the statutes contemplate that the railroad company shall be incorporated, before the proceedings can be taken, they contain nothing requiring that to be proved, as a fact, before the county judge, or to be stated with any special particularity in the petition. What they require is, that it should be a railroad company within this State, and be named in the petition.</p> <p>These statutes have' reserved no authority to the tax-payers, after having signed the petition, to withdraw their consent to the application. And the county judge has no power to allow any petitioner to withdraw his name.</p> <p>A town is not deprived of its power to invest its bonds, or their proceeds, in the railroad of the company named in the petition, by reason of the incorporation and partial construction of another railroad running within a few miles of the town, but not assessed or taxed upon the assessment roll of the town, nor constructed in the town.</p> <p>The road not taxed or upon the assessment roll must be constructed and be in operation in or through the town, in order to deprive the town of the power to aid in the construction of another railroad.</p> <p>Proceedings under these statutes being in derogation of the common law, no intendment or presumption can be allowed, in their favor. Unless the party endeavoring to maintain them is able to show that the terms of the statutes have been, in all essential particulars, complied with, they are to be held invalid.</p> <p>It is not enough to render a tax-paybr a petitioner, that he requested some other person to subscribe his name to the petition, and it was placed there by that authority. The power conferred is personal in its nature, and not capable of being delegated.</p> <p>To conclude the person taxed, he must either subscribe the petition himself, or it must be subscribed by some other person by his direction, and in his presence.</p>

THE plaintiff, Avery, obtained a judgment against the defendant, Woodbeck, before G-. W. Garrison, Esq., a justice of the peace of Greene county, for $35. There was no appearance by Woodbeck, in the case, before the justice. The defendant appealed from the judgment of the justice, to the county court of Greene county, which court affirmed the judgment, and Woodbeck appealed to this court.

<p>In general, an injunction will not lie to restrain a simple trespass; .although the rule has exceptions.</p> <p>The practice of granting preliminary injunctions, when not shown to he necessary, condemned.</p> <p>A preliminary injunction, to restrain an alleged trespass which can he compensated in damages, will be dissolved when it .appears that there was no such pressing injury, or danger in delay, as called for an injunction in limine. Even if the defendants are irresponsible, it would be a most dangerous proposition that a preliminary injunction should be granted to restrain a trespass, because the plaintiff might be unable to collect a judgment if he should recover. Ter Leabked, J.</p>

DEMURRER by the plaintiffs to the defendant’s return to an alternative writ of mandamus. The defendant was elected supervisor of the town of . Olean, ' Cattaraugus county, in February 1869, for one year, and qualified and acted as such until the annual town meeting in February 1870.

Henry Everts, being interested as a legatee, appeared and contested the said account; and several other persons being interestéd in the decree of the surrogate, were made parties respondent, with the contestant.

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

THIS is an action of trover to recover the value of a cutter. The action was commenced before a justice of the peace of the county of Herkimer, where the plaintiff recovered $45.38 damages, and costs. From the justice’s judgment, the defendant appealed to the county court. The county court affirmed the judgment, and the defendant appealed to this court from the latter judgment. There was no dispute as to the facts.

APPEAL by the plaintiff from a judgment entered upon the verdict of a jury, in favor of the defendant. The action was brought to recover twelve penalties of $10 each, alleged to have been incurred by the defendant in passing, gate Uo. 9 upon the plaintiff’s road, without paying the toll required by law, and with the intent to avoid the payment- thereof.

APPEAL, by the defendant from a judgment of the county court of Oswego county. The action was commenced in a justice’s court, by summons issued by Mars Hearing, Esq., a justice of the peace of the town. of Hastings, in the county of Oswego, on the 14th day of June, 1860, and returnable on the 18th day of June, 1860, at his office at Central Square, (Hastings,) in said town.

Mary Baulec, as administratrix of Thomas Hammond, deceased, sued the New York & Harlem Railroad Company in the supreme court, for negligence, in causing the death of her intestate. At the time of his death, the deceased was in the defendants’ employ, and the accident which caused his death was due to the negligence of another servant of the company in misplacing a switch.

Motion to dissolve an injunction. George W. Swett and others obtained an injunction to restrain the construction by the city of Troy of a bridge over the Poestenkill, and within said city, in such manner as to obstruct the flow of the water from the plaintiff ’ s foundry, and to prevent the free passage of ice from their dam.

APPEAL, by the defendant, from a judgment entered upon the report of a referee. The ■ action was upon a policy of insurance. The plaintiff, Maria Pierce, was formerly the wife of Duty McIntyre, who died in 1843, seised in fee of the premises on which the buildings insured by the defendant stood.

THIS was an action to recover the possession of real estate. The defendant interposed an equitable defense; alleging, in his answer, that he had the equitable title to one half of the premises described in the complaint, and was entitled to a conveyance thereof.

THIS is an action brought by the plaintiff, the administrator, &c., of William Hackney, deceased, with the will annexed, to foreclose a mortgage given by John S. Vrooman, now deceased, to the said William Hackney in his lifetime, dated June 26, 1843, to secure the payment of “ $450, with interest, in five years from the date ” thereof, and which mortgage was recorded in the clerk’s office of the county of Oswego, June 29,1843.