Volume 62 — New York Reports

(Reported below, 3 T. & C., 380.) . This action was for the alleged wrongful taking and conversion of a piano belonging to plaintiffs. The plaintiffs were dealers in pianos, doing business under the firm name of Cole, Passage & Co., and residing in Towanda, Penn. On the 15th of November, 1872, they shipped the piano in question to O. H. Jenne, who then resided in Lock-port.

(Reported below, 2 Hun, 488 ; 5 T. & 0., 57.) This action was against defendant as an indorser of a promissory note, alleged to have been made by the firm of “ Altenbrand Bros., ” dated April 24, 1872, for $1,000, payable twelve months from date, and delivered to the firm of “ Chamberlain Bros., ” and sold and transferred by them before maturity to plaintiff.

This action was brought to recover the amount of various deposits made by plaintiff with defendant. The defence was, that the amount had been paid by defendant in good faith to a person holding the pass-book issued to plaintiff by defendant, and supposed by it to be the plaintiff.

(Reported below, 3 K Y. S. C. [T. & 0.], 263.) This action was for malicious prosecution. In 1872 defendant discounted for plaintiff two promissory notes each for $300, indorsed by H. Ackerman. Ackerman, to defendant’s knowledge, had frequently indorsed for plaintiff and defendant had discounted a number of such notes.

This action was commenced in Justice’s - Court. Plaintiff there recovered a judgment of $100. Defendant appealed to the County Court stating in his notice of appeal, among other grounds, the following: “ 3d. The judgment should have been more favorable to the defendant in this, to wit, it should not have been for a larger amount than ten dollars.” The cause was tried in the County Court and plaintiff recovered eighty-three dollars and eighty-eight cents.

(Reported below, 1 Hun, 619.) This action was brought to recover the amount of an assessment for street improvements upon premises deeded by defendant to plaintiffs. The evidence of plaintiffs tended to show that defendant contracted to sell to plaintiffs certain premises in the city of Rochester for $20,000, $5,000 .down, the balance in installments.

This action was brought against defendant, as president of the Adams Express Company, to recover the value of a package of watches and watch-keys delivered to that company for transportation, consigned to J. E. Merriman & Co., Memphis, Tennessee.

(Reported below, 1 H. T. S. 0. [T. & C.j, 339.) This was an action upon a policy of insurance, by its terms insuring plaintiff upon “ his two framed buildings ” situate in the village of Jeffersonville, 1ST. T. Prior to the 28th June, 1868, the plaintiff had been in the employ of Margaretha Hartmann, and she was indebted to him for his labor and services. On that day they intermarried.

<p>The father of plaintiff owned land through which defendant’s road ran. Defendant had coristructed an embankment so negligently that a portion thereof slid down upon the adjoining land, causing damage. In consideration of a sum paid by defendant, the owner executed an instrument, under seal, releasing the damages, and also agreeing, that, if in consequence of the peculiar construction of the embankment or nature of the soil landslides should thereafter occur, he would make no claims for damages, and that he and his heirs and legal representatives would consider the sum paid full compensation for all future damages so occasioned, and that the instrument should bar all future claims. Plaintiff inherited the land on the death of his father, and another landslide having occurred, occasioned by the negligent construction of the embankment, brought this action for damages. Held, that the instrument was a grant of the privilege to maintain the embankment as it then was, free from liability for damage occasioned by the deposit of earth, etc., by landslides therefrom, and created a servitude to that extent; and that plaintiff inherited the land subject to such servitude, and could not recover.</p>

<p>To create an estoppel in pais, the conduct or representation must have been intended to, and must have in fact influenced a party to his injury, it is not enough that he believe an estoppel will be made in the future.</p> <p>Defendant, A. E. B., a married woman, executed a joint bond with her husband for the sum of §3,000, and a mortgage upon her real estate to secure it, which were delivered to the obligee and mortgagee without consideration; they having been executed for the purpose of being sold at a discount, for the benefit of the husband. They were assigned to the plaintiff for the sum of §1,755. A promise was made that Mrs. B. would make an affidavit to the effect that the consideration of the mortgage was the full amount expressed, and that there was no defence or set-off. After §500 was paid such an affidavit was made, and thereupon the residue of the purchase-price was paid. In an action to foreclose the mortgage, held, that Mrs. B. was not estopped from asserting the usurious nature of the transaction as to the §500; and that plaintiff was only entitled to recover the money actually advanced by him on the faith of her representations, not the face of the mortgage less the $500.</p> <p>Also held, that a judgment against Mrs. B. for a deficiency was error.</p> <p>Payne v. Burnham (3 Hun, 143; 4 N. T. S. O. [T. & O.], 678), reversed,</p>

<p>An action for partition is an equitable action; but as the provisions of the Revised Statutes are by the Code (§ 448) made applicable to such actions, where issues of fact are presented by the pleadings, a jury trial is a matter of right.</p> <p>In an action for partition brought by an heir under the provisions of the act of 1858 (chap. 238, Laws of 1853) relative to disputed wills, the Supreme Court at Special Term has authority to direct issues of fact to be settled and that the verdict of the jury thereon be certified to the Special Term for further proceedings.</p> <p>It is within the discretion of the court whether the case shall be so disposed of or shall be placed upon the Circuit calendar for the court to submit to the jury such questions of fact as are presented by the pleadings, and the exercise of this discretion is not reviewable here.</p> <p>So, also, the form of the issues is discretionary, and the order of the court settling the issues is not reviewable.</p> <p>If the issues settled are imperfect or insufficient, the court, on trial at the Circuit has, in its discretion, the right to amend and to submit such additional issues as the proof warrants.</p>

<p>In an action brought by an heir-at-law of a deceased grantor, to set aside deeds, because of incompetency, and for fraud and undue influence, other heirs, not parties to tire action, are not interested in the event thereof within the meaning of section 399 of the Code, and may testify as to personal transactions and communications between them and the deceased, and to any facts which any other witnesses might testify to. The success of the plaintiff would not affect them, as the deeds would still be valid against them. At most they are only interested in the questions involved, but this does not disqualify them, only going to their credibility.</p> <p>Such a witness having been called by plaintiff, defendants’ counsel objected to her testifying to any transaction or communication between her and the deceased, for the purpose of showing his condition of mind. As the case stated, “the objection was sustained to this class of evidence.” No exception was taken; but, afterwards, the witness was recalled by plaintiff, who offered to prove by her communications between her and the deceased. This was objected to; objection sustained, and plaintiff excepted. Held, that it was proper to refer to all the offers to ascertain what was intended to be decided; that it appeared clearly the court intended to hold that personal communications between the witness and deceased could not be proved for any purpose; and that, therefore, the exception was sufficiently specific, and the ruling error.</p> <p>Also, held, that it could not be objected that the offer did not disclose evidence material to the issue, as, if available at all, it should have been taken at the time; that it was unnecessary, in the first instance, to state the particular language sought to be proved.</p>

The complaint alleged the issuing of a policy of fire insurance by defendant to one John White and damage to the property by fire; that after such partial loss it was agreed between defendant and the assured, that the latter should surrender the policy to be canceled, and defendants should pay $1,275 and tlie unearned premium, and that the policy was accordingly surrendered and canceled.

This action was upon the official bond of Jason Baker, as treasurer of the county of Monroe.

This action was brought to recover damages sustained by plaintiff for injuries received by him under the following circumstances: In January, 1867, plaintiff, a farmer, was engaged in drawing wood to defendant’s depot at Verona; a heavy snow storm was prevailing, and the tracks were incumbered with snow.

(Reported below, 2 Hun, 138.) This action was brought to foreclose a bond and mortgage executed by defendants Taylor and wife to plaintiff. It was stated in the mortgage that it was executed as collateral security for the payment of a promissory note executed by defendant Taylor to plaintiff, and that upon the payment of said note the mortgage should be canceled of record and void. Said defendant pleaded a release under seal.

This action was upon an undertaking executed by the defendants, of which the following is a copy : “ NEW YORK SUPREME COURT—County New York. BROWNLEE BENSEL, Respondent, against ANTHONY J. OLIVER, Appellant. Undertaking on appeal from a judgment directing the payment of money.

<p>A charge in an indictment for arson in the first degree that the accused set fire to or burned a dwelling-house, the property of, or belonging to, a person named, is a sufficient allegation of ownership; as under the statute defining the offence (2 R. S., 657, § 9), the possessor for the purposes thereof is the owner, and the legal presumption from such an allegation is, that the person named is in possession.</p> <p>An indictment charging as a single act the burning of a number of designated dwelling-houses, charges but one offence, and is, therefore, not bad for duplicity.</p> <p>The criminal act is kindling the fire with felonious intent to burn the houses specified, and is consummated when the burning is effected; and the facts that the houses did not burn at the same time, and that but one was set on fire, the fire communicating therefrom to the others, do not make the burning of each a separate offence.</p> <p>It seems, that if the indictment charges as a distinct offence the burning of each house, it is subject to the objection of duplicity, and the defect is not cured by a withdrawal, upon the trial, of all claim to convict the prisoner for burning any house but one.</p> <p>Where the indictment is fatally defective, it cannot be cured by amendment upon the trial.</p> <p>An indictment for burning one house, is sustained by proof of the firing of another with the criminal intent of burning the house specified.</p> <p>As to whether a felonious setting fire to one building, which actually communicates to and burns another, is sufficient to convict of arson in burning the latter, irrespective of an intent so to do, qucere.</p> <p>An indictment, after charging the setting fire to and burning of a number of dwelling-houses, designating them by stating the names of the owners, alleged that there were, “ within the said dwelling-houses, some human being.” It was objected that the allegation imported but one human being in all the houses, without specifying in which, and that, therefore, there was no sufficient averment as to any. Held, untenable; that the fair construction of the language was that there was a human being in each.</p> <p>Also, held, that the offence was established by proof of the burning, by the prisoner, of one of the houses specified in which was a human being; that the allegations as to the other houses were not matters of description of the offence, but matters of aggravation which the prosecution was entitled to prove as defining the extent of the crime.</p> <p>Upon the trial, after the summing up and before the charge, the prosecution withdrew all claim to convict, and all evidence except as to one house; no exception was taken. Held, that while, as a matter of propriety it should have been done before the summing up by the counsel for the prisoner, he was not legally prejudiced, and in the absence of an exception, it was not error.</p> <p>If, at the time the dwelling-house takes fire, there is a human being therein, the provision of the statute to that effect is satisfied, although before that time the person had ample opportunity to leave the house. Whether the person is asleep or awake, or whether escape is practicable of not before the building actually takes fire, is not material.</p> <p>Where confessions of the prisoner nre given in evidence on the trial of an indictment, in the absence of proof of such threats or inducements as would render the confessions inadmissible, a refusal of the court to charge, that if the jury believed from the evidence that the prisoner was induced to make the confessions under any inducements or hope of reward held out to him they should exclude the evidence, is not error.</p>

Appeals by Thomas J. Barr, receiver, etc., from orders of the General Term of the Superior Court of the city and county of New York ; the one affirming an order of Special Term settling the accounts of said Barr as receiver, and the other directing him to pay over to defendant Lucke the amount.found in his hands upon such settlement.

This action was brought to recover moneys alleged to have' been advanced by plaintiffs upon a contract between the parties by which defendants contracted and agreed to deliver to plaintiffs “30,000 pounds of Ohio grown fleece wool to be well washed and in good merchantable order and free from burrs, tags, etc.” They also agreed to give plaintiffs ample time “ to throw the wool, before sacking it, at some point not over ten miles from Tontogany, and not to have or to receive…

(Reported below, 2 Hun, 263.) This action was brought to recover damages for the alleged negligent killing of Max K. Maxmilian, plaintiff’s intestate. On the 26th May, 1871, said Maxmilian, while attempting to enter a street car in the city of New York, was struck and run over by an ambulance wagon which was driven by an employe of the Commissioners of public charities and corrections, and from the effect of the injuries received he died.

(Reported below, 2 Hun, 45; 4 T. & 0., 304.) This action was brought against defendant as president of the Adams Express Company, a joint stock company, to recover for the loss of a package of money alleged to have been intrusted to said company, as a common carrier, to carry from Wilmington, 1ST. C., to Hudson, H. Y. At the time of the receipt of the package, the company delivered to plaintiff a receipt therefor, which was retained by him, and which, after describing the…

<p>Appeal from judgment of the General Term of the Court of Common Pleas, for the city and county of New York, affirming a judgment in favor of plaintiff, enterred upon an assessment of damages by a sheriff’s jury. The action was brought to recover damages for personal injuries.</p> <p>The complaint alleged, in substance, the incorporation of defendant, and that it was a common carrier of passengers in the city of New York, running cars on the streets for that purpose. That on the 13th March,-1873, one of its cars was standing at the corner of Barclay and Church streets, in said city, in such a position as to block up the passage across Church street. That plaintiff being desirous of crossing said street, stepped upon the front platform of the car for the purpose of passing over it; “that thereupon the driver of said car or vehicle, who was then the servant and agent and in the employment of the defendant, and engaged in driving such car or vehicle, forcibly, willfully and violently seized the plaintiff and threw her from said car,” breaking her leg, and otherwise seriously injuring her, etc. Defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained by the Special Term, and judgment was entered dismissing the complaint. On appeal the judgment and order were reversed, and defendant’s demurrer overruled with leave to defendant to answer within twenty days; not having so done, plaintiff’s damages were ordered assessed by a sheriff’s jury.</p> <p>The provisions of 1 Revised Statutes, 695, “of the law of the road and the regulation of public stages,” do not apply to street railroad companies. (Isaacs v. Third Ave. R. R. Co., 47 N. Y., 122; Whitaker v. Eighth Ave. R. R. Co., 51 id., 295 ; Burnside v. Whitney, 21 id., 148; Potter’s Dwar. on Stat., 244, n. 34; 205, n. 21.) The act of the driver being an act of willful mischief, and not-within the scope of his employment, defendant is not liable for its consequences. (Wright v. Wilcox, 19 Wend., 343; Mali v. Lord, 39 N. Y., 381 ; Fraser v. Freeman, 43 id., 566; Isaacs v. Third Ave. R. R. Co., 47 id., 122.) Defendant had no legal right to remove plaintiff from its platform. (Bac. Abr., tit. “ Highway ” D; S. & R. on Neg., §§ 490, 491; Rauch v. Lloyd, 31 Penn. St., 358, 370; Penn. R. R. Co. v. Kelly, id., 372; State v. M. and E. R. R. Co., 1 Dutch., 437; Wilbrand v. Eighth Ave. R. R. Co., 3 Bosw., 314, 320; Hegan v. Eighth Ave. R. R. Co., 15 N. Y., 380 ; G. and C. W. R. R. Co. v. Dill, 22 Ill., 264, 270.; T. and W. R. Co. v. Goddard, 25 Ind., 185, 197; McMahon v. N. C. R. R. Co., 39 Md., 438, 450; Add. on Torts [3d ed.], chap. 7, § 1, p. 308; Woolrych on Ways, 5l, 52; Slater v. Swann, 2 Str., 872; 3 Blk. Com., 5, 6; Com. Dig., tit. “ Trespass ” A, 1.) Having no legal right to do so, it could confer none on its servant. (Isaacs v. Third Ave. R. R. Co., 47 N. Y., 122; Poulton v. L. and S. W. R. Co., L. R. [2 Q. B.], 534.)</p> <p>Defendant could not object to the form of the complaint under the demurrer. (Voorhies’ Code [10th ed.], 204, note e; p. 208, notes a, l>, e ; Y. S. Pldgs. [2d ed.], 693; Bac. Abr., “ Pleas and Pleadings,” n. 6; Conaughty v. Nichols, 42 N. Y., 83; Haskell v. Vil. of Penn Yan, 5 Lans., 43.) ' Defendant is liable at common law upon the facts alleged in the complaint and admitted in the demurrer. (Higgins v. W. Tpke. Co., 46 N. Y., 23; Jackson v. Second Ave. R. R. Co., 47 id., 274; Sanford v. Eighth Ave. R. R. Co., 23 id., 343; Goddard v. G. T. R. Co., 57 Me., 202; Ramsden v. B. and A. R. R. Co., 104 Mass., 117, 120; Coleman v. N. Y. and N. H. R. R. Co., 106 id., 160; Jeff. R. R. Co. v. Rogers, 38 Ind., 116, 125, 126; Barden v. Felch, 109 Mass., 154; Seymour v. Greenwood, 7 H. & N., 35; Goff v. G. N. R. Co., 3 E. & E., 672; Vanden Eyden v. Uls. R. Co., 5 I. R. [C. L.], 32; 1 Blk. Com., 430; Story on Ag. [8th ed.], §456, pp. 611, 615 ; Croft v. Alison, 4 B. & A., 590; N. Y. and N. H. R. R. Co. v. Schuyler, 34 N. Y., 49 ; Wolfe v. Mersereau, 4 Duer, 473; Coulter v. A. M. U. Ex. Co., 5 Lans., 67; Wilton v. Mid. R. R. Co., 107 Mass., 108 ; Broom’s Leg. Max. [7th Am. ed.], 844, 856.) The use of the word willfully in the complaint was no ground for demurrer. ' (People v. Brooks, 1 Den., 457; Morris v. People, 3 id., 382.) If plaintiff was on the platform without right, the driver acted within the scope of his authority in ejecting her. (Meyer v. Second Ave. R. R. Co., 8 Bosw., 305; Drew v. Sixth Ave. R. R. Co., 26 N. Y., 49; Wilton v. Mid. R. R. Co., 107 Mass., 110; Goff v. G. N. R. Co., 3 E. & E., 672.) Defendant is liable, under the Revised Statutes (1 R. S., 696, §§ 6, 7), for the act of its driver. (Bac. Abr., “Statute” [I], 2, 10; Waller v. Harris, 20 Wend., 561; Jones v. Harrison, 6 Exch., 333; 1 Kent’s Com. [11th ed.], 462, note; Bruce v. N. Y. C. R. R. Co., 27 N. Y., 271; People v. Kerr, id., 188; Sixth Ave. R. R. Co. v. Kerr, 45 Barb., 138.)</p>

(Reported below, 3 Hun, 437.) The nature of the action and the facts are set forth sufficiently in the opinion. The court directed a verdict for plaintiff which was rendered accordingly. Exceptions were ordered to be heard at first instance at Special Term. The legislature has power to provide for ascertaining, by proper proofs, who are legal voters, that is, by evidence which the interested party has a right to hear and, if necessary, to controvert.

H. Morange to vacate an order and precept committing him to jail for non-payment of costs. (Reported below, 3 Hun, 636; 6 T. & C., Ill,) An application was made, in the above entitled matter, to the said General Term to strike the name of Richard B. Kelly, from the roll of attorneys of that court.

This action was brought against defendants as trustees of the American Seal-Lock Company, a corporation organized under the general manufacturing act (chap. 40, Laws of 1848), to enforce the liability imposed by section 12 of said act, by reason of failure on their part to file an annual report in January, 1871. The corporation was incorporated May 17th, 1870.

(Reported below, 2 Hun, 449; 5 T. & C., 27.) This action was brought to recover possession of a canal boat.

(Reported below, 2 Hun, 281.) The petition was subscribed by the attorney of the petitioner. In it it was alleged that the petitioner was, at the time of the confirmation of the assessment, and still is, the owner of the premises.

Ebbob to the General Term of the Supreme Court, in the first judicial department, to review judgment affirming judgment of the Court of Oyer and Terminer, in and for the city and county of Yew York, entered upon a verdict convicting plaintiff in error of the crime of murder in the second degree. (Beported below, 4 Hun, 16; 6 T. & C., 215,) Plaintiff in error was indicted for the murder of his wife. He was tried April 16th, 1873.

This was a motion to dismiss an appeal on the ground that the amount in controversy was less than $500, and so that the judgment below was not appealable under the act of 1874 (chap. 322, Laws of 1874), amending section 11 of the Code. (Reported below, 4 Hun, 258; 6 T. & C., 467.) The action was for the wrongful taking and conversion of personal property. The amount of damages demanded in the complaint was $1,700.

(Reported below, 1 Hun, 202; 4 T. & c.; i3.) This action was brought against defendant, a corporation created under the statutes of Illinois and Indiana by the consolidation of two other railroad corporations, one of which was The Danville, Urbana, Bloomington and Pekin Railroad Company, and by its charter obligated to pay the debts and obligations of the original corporation, to recover certain alleged claims against the corporation above mentioned.

<p>Appeal from order of the General Term of the Supreme Court in the third judicial department, affirming an order of Special Term directing a judgment for plaintiff on account of the frivolousness of defendant’s demurrer to the complaint, and that the damages be assessed by a sheriff’s jury unless defendant answer within twenty days after service of copy of the order.</p> <p>The order of the General Term was reviewahle. (Rogers v. Wheeler, 43 N. Y., 598; Coit v. Stewart, 50 id., 17; Code, § 11, sub. 2; People v. Benedict, 47 N. Y., 667; Wilkin v. Raplee, 52 id., 248; Fredericks v. Taylor, id., 596; Rise v. Ehele, 55 id., 518, 524.) The demurrer was not frivolous. (Sixpenny Svgs. Bk. v. Levan, 12 How. Pr., 543, 544; Stone v. Cooper, 2 Den., 299; Bennett v. Williamson, 4 Sandf., 60 ; Onslow v. Howe, 3 Wils., 177; Caldwell v. Raymond, 2 Abb. Pr., 192.)</p>

This action was brought to recover damages for the alleged negligent killing of Thomas Sammon, plaintiff’s intestate. The evidence showed that the deceased was employed to attend a chain across Fifty second street, in the city of New York, on the west side of defendant’s tracks.

(Reported below, 1 Hun, 528; 3 T. & 0., 618.) This action was brought upon an alleged contract between David Phillip, plaintiff’s assignor, and the defendant, for the completion of a house by Phillip, for the defendant. The making of the contract was denied.

(Reported below, 3 T. & 0., 266.) This action was brought to foreclose a mortgage executed by defendant William Seekins to secure the payment of a promissory note executed by him. The mortgage was dated December 24th, 1869, acknowledged the twenty-seventh, and recorded January 7, 1870.

This action was brought to recover for certain goods alleged to have been sold and delivered by plaintiff to defendant.

This action was brought upon a bond given to discharge defendant Jiain from arrest in proceedings under the non-imprisonment act. The affidavit upon which such bond was issued, was as follows: “NEW YORK SUPERIOR COURT. Noah Wheaton v. John Kain.

This action was brought to set aside a judgment of foreclosure and sale, and a sale thereunder, and to recover possession of the mortgaged premises. Plaintiffs claimed title to the premises as heirs at law of Thomas Smith. The complaint alleged, in substance, that said Smith executed a mortgage upon the premises; that various payments were made by him thereon, and then set forth an agreement with the mortgagee, by which plaintiffs claimed the mortgage was, in effect, paid.

This action was brought to enforce a mechanic’s lien upon premises of the corporation for materials furnished to the other defendants, contractors. Plaintiff claimed a lien for $527.63. The corporation only appeared and answered, and served an offer of judgment for $226.50. A trial was had before a Special Term and the court ordered judgment for $571 damages, and established a lien for that amount and thereupon judgment was entered for that amount and costs.

These are appeals by both parties from a judgment of the General Term of the Supreme Court, in the fourth judicial department, modifying and affirming as modified a judgment in favor of plaintiff, entered upon a decision of the court, on trial without a jury.

<p>Error to the General Term of the Supreme Court in the first judicial department to review judgment affirming a judgment of the Court of Oyer and Terminer of the city and county of New York, entered upon a verdict convicting plaintiffs in error of a misdemeanor. (Reported below, 2 Hun, 222; 5 T. & C., 678.)</p> <p>The indictment charged and the evidence showed, that plaintiffs in error, who were commissioners of police and members of the board of police of the police department of the city of New York, on the 3d day of November, 1873, unlawfully removed one John Sheridan, an inspector of election, from his office when he was not actually on duty on a day of registration, revision of registration or election, without first giving him notice in writing, setting forth the' reasons for such removal as required by the act of chapter 675, Laws of 1872 (§ 13).</p> <p>Upon the trial the accused offered to prove that Sheridan had been guilty of improper conduct as an election officer, and on the day of his removal threatened that he would stuff ballot-boxes, which facts were communicated by way of affidavits to the commissioners before removal, and that they believing the charges acted under them in good faith, and under belief and legal advice that the cause of removal brought the case under one of the statutory exceptions excusing notice. This evidence was excluded as irrelevant and immaterial; the court holding that it made no difference except as a guide to punishment, whether the accused willfully or innocently, in bad faith or in good faith, did the act complained of; to which ruling the counsel of the accused duly excepted.</p> <p>The indictment was found in the Court of General Sessions without a previous complaint having been made before a magistrate. The indictment was sent to the Oyer and Terminer without the consent of the defendants.</p> <p>The court erred in ruling and charging that the jury were not to consider the intent or motive of plaintiffs in error in removing Sheridan, and that there was conclusive presumption of law that they did it willfully. (1 Bish. Cr. L., §§ 132-227, 235 ; 3 Greenl. Ev., § 13; State of Nevada v. Gardner, 5 Nev., 378 ; People v. Harris, 29 Cal., 681; 1 East, 563 ; Fiedler v. Darrin, 50 N. Y., 443.) The judgment should be arrested because the court was without jurisdiction to try the offense alleged in the indictment. (Laws 1855, chap. 337, § 5 ; People v. Toynbee, 13 N. Y., 378 ; People v. Rawson, 61 Barb., 628.)</p> <p>The court was correct in refusing to admit evidence of plaintiffs’ intent in the removal. (People v. Brooks, 1 Den., 457; People v. Bogart, 3 Park., 143; People v. Morris, 3 Den., 381, 403; People v. Jones, 54 Barb., 318; Clark v. Miller, 47 id., 41; Rex v. Eairsbury, 4 T. R., 451; Rex v. Stukely, 12 Mod., 493; Reg. v. Hicklin, 3 Q. B. [L. R.], 368; Steele v. Brannan, 7 C. P. [L. R.], 267.)</p>

(Reported below, 5 J. & S., 334.) This action was brought by plaintiff against the Lake Shore and Michigan Southern Railroad Company, and against its directors and treasurer individually. Held: and still holds, fifty shares of said preferred stock. That, in 1869, the said company was merged and consolidated, with other companies, into the Lake Shore and Michigan Southern Railroad Company, defendant.

This action was to recover for work, labor and services. It was brought originally by plaintiff’s intestate.

(Eeported below, 4 J. & S., 152.) This was an action for fraud.

<p>In the absence of fraud a vendee of personal property cannot set up a defect of title in his vendor and a notice of claim by a third person as a defence to an action for the purchase money, unless he has either returned the property to the vendor, has had his possession interfered with, has had a recovery against him by the claimant, or has paid such claimant for the property.</p> <p>He can only rely upon an express or implied warranty of title, the effect of which is to guarantee him against eviction or injury from other parties, and until this occurs he is entitled to no indemnity.</p> <p>Her is the defect of title available' to sustain a defence of want of consideration, the vendee having received possession with the indicia of a good title and the personal obligation of the vendor.</p>

This action was brought to foreclose a mortgage. The answer set up fraud, and also a counter-claim for moneys alleged to have been collected by plaintiff for defendant.

(Reported below, 3 Hun, 562; 6 T. & C., 316.) The nature of the action and the facts are sufficiently set forth in the opinion. The failure to certify the assessment to the commissioners or to the common council was a disregard of the statute and is fatal to the validity of the tax.

(Reported below, 2 Hun, 157.) The action was brought to foreclose a mortgage executed by defendant Sayer and his wife, dated January 8, 1875, payable five years from date, with an interest clause making the principal due, at the option of the holder, in case of nonpayment of interest for thirty days. The evidence was, in substance, that one Stephen H. Sayer, son of defendant Sayer, applied to plaintiff for a loan.

(Reported below, 2 Hun, 497 ; 5 T. & 0., 34.) This action was brought to have a deed executed by the State comptroller, upon a sale of… Held: which was the house of said Robert Galliland ; that he was overseer three or four years; he recollected one year of posting it on the door of the town hall; evidence was given that thorough searches were made in the town clerk’s office, and in the office of the clerk of the board of supervisors, for notices and proof of posting or…

This action was brought to recover a balance of salary alleged to be due plaintiff as one of the attendants of the Court of Common Pleas of and for the city and county of New York.

This action was brought to set aside the lien of a mortgage held by defendant upon premises of plaintiff, upon the ground that the same was procured by fraud. The answer was a general denial and a former suit pending.

These were appeals from orders of the General Term of the Supreme Court in the first judicial department, setting aside verdicts in favor of plaintiffs and granting new trials.

of defendants Payne and Dewey. (Reported below, 1 Hun, 177; 3 T. & 0., 720.) This action was brought for an alleged fraudulent conspiracy between the defendants, and a fraudulent sale in pursuance thereof, of plaintiff’s property, made by defendants Keyes and Scott, as his agents, to defendants Payne and Dewey. Plaintiff owned a large amount of real estate in California, upon which were various liens and incumbrances.

The petitioner was a corporation organized under the general act providing for the formation of gas-light companies. (Chap. 37, Laws of 1848.) By an act passed in 1870 (chap. 757, Laws of 1870), authority was given to it to acquire title to lands necessary for its purposes in the general railroad act. (Chap. 140, Laws of 1850.) The line fixed by the company for its main pipes passed along a country highway, in the town of Henrietta, and over lands owned by defendant.

(Reported below, 5 J. & S., 358.) This was an action to set aside an award. The plaintiff, prior to April, 1869, had been in the employ of defendant as superintendent of agencies in certain States.

(Reported below, 2 Hun, 452; 5 T. & C., 65.) This action was brought to redeem certain real estate known as “ Congress Hall,” in the city of Rochester, from incumbrances held by the defendants as executors of the estate of John Craig, deceased, and for an accounting of the rents and profits.

(Reported below, 1 Hun, 673 ; 3 T. & C., 540.) This' action was brought to restrain defendants from using the name “ Meneely ” in the business of bell founding at Troy.

This action was brought by plaintiff, as supervisor of the town of Solon, Cortland county, to recover, as for moneys had and received, certain moneys alleged to have been received from the State as a refund for bounties belonging to said town, which had been paid over to the defendant. The court found, in substance, that on the 18th day of July, 1864, the president of the United States issued a call for 500,000 men for the military service.

(Reported below, 2 Hun, 324; 4 T. & C., 666.) This action was brought to recover damages for an alleged breach of duty upon the part of the defendants, as the agents of plaintiffs. Plaintiffs, who were doing business in the city of New York, entered into an arrangement with defendants, who were commission merchants .doing business at Hong Kong and other places in China, under and by which defendants became correspondents of plaintiffs for the purchase of silks and teas.

<p>Appeal from order of the General Term of the Supreme Court in the second judicial department, reversing an order of Special Term denying motions to vacate an assessment for grading and paving Grand Street, in the city of Brooklyn, and directing judgment vacating the assessment. (Reported below, 3 Hun, 623; 6T.& C., 320.)</p> <p>It was stipulated by the counsel for the respective parties, that all the proceedings in laying the assessment were regular, except the petition asking for' the improvement.</p> <p>The facts in relation thereto are sufficiently 'stated in the opinion.</p> <p>The determination of the common council upon a petition for an improvement under chapter 169, Laws of 1861, as to whether it was signed by a majority of the persons on the line thereof, is conclusive and cannot be reopened. (Laws of 1859, chap. 213; Laws of 1872, chap. 62; Betts v. Bagley, 12 Pick., 572; Barhyte v. Shepherd, 35 N. Y., 238; 2 Abb. Ct. Apps. Dec., 1; People ex rel. v. City of Rochester, 21 Barb., 656, 670.)</p> <p>The common council acted without jurisdiction. (Laws of 1861, chap. 169, p. 462; Laws of 1862, p. 182, § 43; Sharp v. Spier, 4 Hill, 76, 92; Whitney v. Thomas, 23 N. Y., 281; 50 id., 502, 509; 52 id., 80; 56 id., 257.) The charter of 1873 did not legalize or confirm any previous illegal assessment void for lack of jurisdiction. (Laws of 1874, chap. 589, p. 811; Downing v. Mayor, etc., 54 N. Y., 186; 49 id., 243; Berley v. Rampacher, 5 Duer, 183.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment in favor of defendants entered upon the report of a referee.</p> <p>This action was brought to have certain bonds, issued by the supervisor and railroad commissioners of the town of Venice, delivered up and canceled, and to restrain defendants, the holders of said bonds, from transferring them.</p> <p>The facts, as found by the referee, were, in substance, these: The bonds in question were twenty-five in number of $1,000 each, and were issued by said railroad commissioners and the supervisor of the town under the act chapter 375, Laws of 1852, to pay for $25,000 of the stock of the Lake Ontario, Auburn and New York Railroad Company. Five of the bonds were sold by the supervisor and commissioners for cash, and the residue were transferred by them directly to the company at par to apply in payment of the stock subscribed for; and on receipt thereof) and of the money received for the bonds sold, the company issued to the town a certificate for the stock subscribed for, which the plaintiff still holds. The defendants, holders of the twenty bonds delivered directly to the company, took the same without being informed that they were so delivered. The bonds were issued without the assent of two-thirds of the resident tax-payers of the town having been obtained, as required by said act. The referee, upon these facts, directed a dismissal of the complaint. Judgment was entered accordingly.</p> <p>The General Term affirmed the judgment as to all of the defendants but two, on the ground that the action was barred by the statute of limitations. As to those the judgment was reversed and new trial granted. Plaintiff appealed to this court from so much of the judgment as affirmed judgment below.</p> <p>The requirements of the statute as to procuring the requisite assents not having been complied with, the bonds were void even in the hands of bona fide holders. (Starin v. Genoa, 23 N. Y., 439; People ex rel. v. Mead, 24 id., 114; People ex rel. v. Mead, 36 id., 224.) The court in the exercise of its equitable jurisdiction had the power and it was its duty to grant the relief prayed for in the complaint. (2 Story’s Eq., 701, §§ 825, 826, 629, 700; Peake v. Highfield, 1 Russ., 559; N. Y. and N. H. R. R. Co. v. Schuyler, 17 N. Y., 592; 34 id., 592 ; Mayor, etc., v. Pilkington, 1 Átk., 283.) The statute of limitations constituted no defence. (Miner v. Beekman, 50 N. Y., 338; People v. Rens. Ins. Co., 38 Barb., 336; Story Eq. Jur., § 828; Harmon v. Remsen, 23 How., 174; Conover v. Mayor, etc., 14 id., 550; Erie R. Co. v. Ramsey, 57 Barb., 449; Schell v. Erie R. Co., 54 id., 368; Radcliff v. Rowley, 4 Edw., 653; Varick v. Edwards, 11 Paige, 290; Bartlett v. Judge, 21 N. Y., 200; Hubbell v. Midbury, 53 id., 99.) The fact that the bonds were held by defendants severally, constituted no objection to plaintiffs’ maintaining the action. (N. Y. and N. H. R. R. Co. v. Schuyler, 17 N. Y., 592; Mayor, etc., v. Pilkington, 1 Atk., 283; Campbell v. Morkay, 1 M. & C., 623 ; Brinkerhoff v. Brown, 6 J. Ch., 139; Fellows v. Fellows, 4 Cow., 682.)</p> <p>The Supreme Court, as a court of equity, had no jurisdiction to try the only issue tried. (Story’s Eq. Jur., § 694; Allerton v. Belder, 49 N. Y., 373; Field v. Holbrook, 6 Duer, 597; Cadman v. Kingsley, 4 Edw., 627 : Grand Chute v. Winegar, 15 Wall., 374; N. Y. and N. H. R. R. Co. v. Schuyler, 34 N. Y., 30.) The action was barred by the statute of limitations. (Code, § 91, sub. 6; Story’s Eq. Jur., § 333; Conkey v. Bond, 36 N. Y., 427; Moore v. Greene, 19 How. [U. S.], 69; Bruce v. Telson, 25 N. Y., 194; 5 Lans., 51; Bertine v. Varian, 1 Edw. Ch., 343; Erickson v. Quinn, 3 Lans., 294.) The equities are all in favor of defendants. (Gould v. Sterling, 23 N. Y., 495; N. Y. and N. H. R. R. Co. v. Schuyler, 34 id., 59; Will. Canal Co. v. Hathaway, 2 Kent’s Com., 621, note b ; F. and M. Bk. v. B. D. Bk., 16 N. Y., 142; N. Y. and N. H. R. R. Co. v. Schuyler, 34 id., 65-73; Gilbert v. Haven, 25 id., 601; Williams v. Village of D., 3 Lans., 51; A. & A. on Corp., §§ 310, 311.) The bonds should not be canceled. (Story on Agency, § 264.) The fact that the bonds were purchased of the railroad company did not prevent the purchaser from being a bona fide holder. (Starin v. Genoa; Gould v. Sterling, 23 N. Y., 495; M. Bkg. Assn. v. N. Y. and S. W. L. Co., 35 id., 505; Bk. of N. Y. v. Bk. of Ohio, 29 id., 619 ; Bk. of Genesee v. Patchen Bk., 19 id., 309; Otter v. Brew. Pet. Co., 36 How., 330; E. N. Y., etc., R. R. Co. v. Lightfall, 5 Abb. Pr. [N. S.], 458, 481; Magee v. Barber, 30 Barb., 246; De Groff v. Am. L. Thread Co., 21 N. Y., 124.)</p>

(Reported below, 6 Hun, 506.) This -action was brought to vacate certain assessments. The complaint contained three counts. The first setting forth proceedings taken under the act of 1813 (chap. 44) for the extension of Worth street, in the city of New York, the appointment of commissioners of estimate and assessment, the making of a report by them and the confirmation thereof by the Supreme Court.

(Reported below, 3 T. & C., 309.) This was an action of ejectment to recover certain premises in Norway, Herkimer county; it was originally brought by fourteen plaintiffs who claimed title, as tenants in common, to twenty undivided twenty-first parts of the lot of land in controversy.

The board of supervisors of Cattaraugus county, at its annual session in November, 1873, passed a resolution authorizing relator, who was then county clerk, to re-index all the recorded mortgages and miscellaneous records in his office upon a new plan, at a specified compensation. The relator’s term of office expired on December 31st, 1873, and defendant succeeded him in the office.

(¡Reported below, 6 J. & S., 215.) This action was brought by plaintiff to be relieved from a forfeiture under a lease, incurred by his failure to pay taxes and assessments.

(Beported below, 2 Hun, 78; 4 T. & C., 266.) This was an action of ejectment. Plaintiff claimed as one of the heirs at law of Henry Granger, who died August 1st, 1846, intestate, seized in fee of the premises in question. Letters of administration upon the estate of the deceased were issued September 2, 1846. These letters were revoked May 16, 1850, and letters of administration, de bonis non, were issued to John Granger and Stephen H. Dillingham, July 8, 1850.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon the report of a referee. (Reported below, 4 Hun, 76; 5 T. & C., 345.)</p> <p>This action was brought to recover a balance claimed to be due on a contract between plaintiff and defendants for regulating and grading First avenue from Thirty-seventh street to Forty-second street.</p> <p>The following are the specifications and clauses of the contract:</p> <p>“ Specifications. — For regulating and grading section No. 1, First avenue, from Thirty-seventh street to the center of Forty-second street, where the same is not already done.</p> <p>The Work. — The entire width of the First avenue from Thirty-seventh street to the center of Forty-second street, to be regulated and graded in accordance with the commissioners’ grade., as shown upon a profile of said avenue in the bureau of street improvements, dated 21st August, 1858. The carriage-way and sidewalks to be properly shaped. That portion of the avenue which is above the grade-line so to be excavated and filled in such parts as are below the grade in the manner hereinafter provided; and the surplus earth and rock not used for filling to be removed off the avenue.</p> <p>Where there is not sufficient excavation to regulate the avenue, the whole amount of excavation will be calculated as filling, whether placed in embankment or otherwise, and the deficiency between excavation and filling will only be allowed for as filling. In all cases the price for excavation must include its removal or filling in embankment where required, or if there should be more rock than required the same to be removed and an equal amount of earth supplied in its place without extra charge.</p> <p>Excavation. — All rock to be taken off two feet below grade, and replaced with earth without extra charge. Boulders will not be allowed for as rock, unless they are of a size to require blasting in order to their removal, which will be determined by the surveyor; no soft or disintegrated rock that can be removed with a pick will be allowed for as rock. The slopes in excavation of earth will be required to have one of base to one of height.</p> <p>Embankment. — In the embankment no rock filling will be allowed within five feet of the center line of the avenue, and none within four feet of the established grade. For the remainder, rock may be used for filling, provided that no rock measuring over two feet in any direction shall be put within fourteen feet of the established grade, and providing that the interstices of all rock filling shall be well and compactly filled with earth. The slopes required for the embankment will be one of base to one of height.</p> <p>And the said party of the second part hereby further agrees that in case any other work is required to be done in order to carry out the provisions of this agreement, which is not called for in the specification, that he will go on and do the same without any claim for extra compensation therefor, unless ordered, in writing, by the street commissioner to do the same as extra work, and a price therefor agreed upon previously to its commencement; and if no price shall be mutually agreed upon between the parties hereto, the street commissioner may employ, by contract or otherwise, as he may deem expedient, other persons to do such extra work; and the said party of the second part will not in any way interfere with or molest the persons so employed ; and will suspend such part of the work herein specified to such extent, or will carry on the same in such manner as may be ordered by the street commissioner, to afford all reasonable facilities for doing such extra work ; and no other damage or claim by the said party of the second part therefor shall be allowed, except such extension of the time specified in this contract as the street commissioner may deem reasonable.</p> <p>And the said party of the second part hereby further agrees to receive the following prices as full compensation for furnishing all the materials and labor for the faithful performance of the above stipulated work, viz.:</p> <p>For excavating rock, per cubic yard, including its filling in embankment, where allowed, and the removal of the Surplus not required, and the furnishing any earth filling required in place of rock removed, forty-three cents.</p> <p>For excavating earth, per cubic yard, including its filling in embankment where required, ten and three-fourth cents.”</p> <p>Plaintiff was allowed and paid for all rock excavations within the line of the street. The balance claimed was for rock excavations outside those lines. The referee found, among other things, that it was impracticable properly to regulate and grade the avenue simply by removing the rock within its lines, for that on the west side thereof, even if the wall could have been cut perpendicularly from top to bottom, which it could not have been by any means known to contractors, the edges of the successive strata would, under the action of the weather, as well as from their own weight, crumble away one after another, falling into the street and endangering the passengers on the sidewalk, until, in the process of time, a natural slope would be formed so great that rocks would no longer fall; and, also, if that on the east side of the wall could have been cut perpendicularly from top to bottom, which it could not have been by any means known to contractors, the strata, deprived of the support from the rock within the street, would, bj the angle at which they lay, and by their own weight, have shoved themselves, or have slidden almost immediately into the street.</p> <p>That it was, in fact, impossible to do the work contemplated in the contract between the plaintiff and the defendants without making a slope on the west side of the avenue, and without removing so much from the east side as would tend to slide in, and that this impossibility was equally known to Mr. Graves, the engineer in charge appointed by the defendants, and to the street commissioner.</p> <p>The referee directed judgment for the outside excavation at the contract-price. Judgment was entered accordingly.</p> <p>The excavation of the rock on the slope line was necessary to the performance of the contract. (Sinclair v. Tallmadge, 35 Barb., 602; Adee v. Demorest, 54 id., 433; Matthews v. Coe, 49 N. Y, 57; Austin v. N. Y. Stbt. Co., 43 id., 75; 2 Pars. on Con., 635, § 2, chap. 3, pt. 2.) Plaintiff was not concluded from recovering by the return of the surveyor in charge of the work. (Smith v. Brady, 17 N. Y., 173; U. S. v. Robeson, 9 Pet., 319; Sherman v. Mayor, etc., 1 N. Y., 316; Thomas v. Fleury, 26 id., 26.)</p> <p>The return of the surveyor of the amount of work done was conclusive between the parties. (Butler v. Tucker, 24 Wend., 449; 5 id., 520; 3 Paige, 124, 138; 1 Barb. Ch., 173; 7 J. R., 408, 415; 2 J. Ch., 551.)</p>

(Reported below, 4 Hun, 43.) The resolution and ordinance providing for the work were introduced in the board of aldermen March 18, 1870; reported from committee May 12, 1870; adopted May twentieth; transmitted to and introduced in the board of assistant aldermen May twenty-first, and adopted May twenty-fourth. Evidence was given that no notice of the proceedings was published in the “ Leader,” a corporation paper.

(Reported below, 2 Hun, 258; 4 T. & C., 444.) This action was brought to have a deed of certain premises in the city of New York, executed by plaintiff and Cornelius Westervelt, her husband, to defendant, declared a mortgage and for leave to redeem.

(Reported below, 6 J. & S., 27.) This action was brought to dissolve an alleged copartnership between the parties and for an accounting. The substance of the pleadings and of the facts found is set forth in the opinion. As conclusions of law, the court found that a partnership was not established but plaintiff had a joint interest in the profits and was entitled to recover in this action one-fourth of the profits, to ascertain which a reference was directed.

<p>The requirements of the statute in reference to the formation of limited partnerships (1 E. 6., 764, § 2), that the contribution of the special partner to the common stock shall be “in actual cash payments,” is not complied with by a contribution in credits, or in any other thing except “cash,” however convertible at the time into money.</p> <p>To bring the special partner within the provision of the statute (§ 8), making all liable as general partners in case of any false statement in the affidavit required to be made and filed (§ 7), it is not necessary that the statement be intentionally false. The object of the statute is to give reasonable security to those likely to deal with the copartnership, and this is thwarted by an unintentional as well as by an intentional untruth.</p> <p>Wan'd v. Newell (42 Barb., 482) and The Madison Go. Sank v. Gould (5 Hill, 809) distinguished.</p> <p>In an action where a special partner is sought to be held liable under this provision of the statute, the affidavit and other papers required by the statute, are presumptive evidence of the formation of a limited partnership ; but after evidence has been given tending to falsify the affidavit, it cannot operate as rebutting proof.</p>

. The nature of the action and the facts are sufficiently stated in the opinion. A lease of agricultural lands for a longer period than twelve years is void. (Const., art. 1, § 14; Hart v. Hart, 22 Barb., 606; Stephens v. Reynolds, 6 N. Y., 457; Parsell v. Stuyker, 14 id., 480.) It is no defence that the lease is not for agricultural purposes.” (Const., art. 1, § 14; Allen v. Cook, 26 Barb., 374; Sedg. on 8tat. and Const. Law, 379, n., 380-383.)

This was an action of trespass upon lands claimed by plaintiff, situate in the town of Virgil, Cortland county. Defendants pleaded title to the locus in quo in the trustees and inhabitants of school district No. 14 in said town, and that defendants entered thereon by order of one of the trustees. Prior to 1839 the school-house had been erected adjoining a highway.

The complaint alleged that in the month of April, 1869, plaintiff executed and delivered to Margaret Palmer his promissory note for $300, payable one day after date. That in May he paid said note to the payee but omitted to take up the same.

(Reported below, 6 J. & S., 95.) This action was brought to recover damages for an alleged unlawful sale by defendants, as brokers, of stocks and government… Held: to exercise that authority in the interest of the plaintiff, and not in their own interest. If the jury find that the defendants sold the stocks in question in their own interest, and to save themselves, the plaintiff is entitled to a verdict. The court declined so to charge, and plaintiff’s counsel duly excepted.

<p>P. O., by his will, executed prior to the Revised Statutes, devised certain premises to his son P., “ during his natural life, after his decease to his lawful children.” It did not appear but that all of the testator’s property was specified in the will, and there was no residuary clause. Held, that, although by the law, as it then stood, a devise without words of limitation or inheritance earned a life estate only, yet if, from the provisions of the whole will, it might be inferred that the intent was to convey a fee, the intent would govern; and, as it is to be presumed that all of the testator’s property was specified in the will, and that the testator intended to dispose of his whole interest therein, it follows that a fee was intended by the devise, for otherwise there would be a remainder undisposed of; and that, therefore, the testator’s son P. took, under the devise, an estate for life, and his children in esse at the death of the testator took a vested remainder in fee which would open to let in after-born children.</p> <p>In two clauses of the will words of inheritance were employed which were omitted in all the others; one of these last was a devise to testator’s son J., who was charged with the payment of the testator’s debts; in another clause he directed that a farm should be sold and the proceeds divided equally among his daughters, and that the share of his daughter J. was to be invested, the interest paid to her during life and at her death the principal and interest paid to her children. Held, that it was evident, from the whole will, that words of inheritance were not deemed by the testator important to vest an absolute estate.</p>

(Reported below, 2 Hun, 94.) The claim was for a balance alleged to be due for board, clothing and necessaries furnished Warren Sanford, defendant’s intestate, together with one item for funeral expenses. The defence was the statute of limitations. Said intestate died December 9th, 1864. Defendant was appointed administratrix of his estate ¡November 19th, 1870. Plaintiff presented her claim December 8th, 1870. The agreement to refer was dated December 16th, 1872.

This action was brought to recover damages for injuries alleged to have been occasioned by defendants’ negligence. Plaintiff’s evidence tended to show that she was standing on the sidewalk at the corner of State and Columbia streets, in the city of Brooklyn, intending to cross State street.

(Reported below, 1 Hun, 529; 3 T. & 0., 630.) The complaint alleged in substance that, in 1838, Jonathan Kent entered into an agreement with his son Samuel G. Kent, by which the latter agreed to work for the former upon his farm, and was to receive therefor what the services were worth, payable after the death of the father, who agreed to leave his property so that the same should be paid out of his estate; that in pursuance of the agreement said Samuel remained in the…

<p>Appeal from judgment of the General Term of the Court of Common Pleas, for the city and county of New York, affirming a judgment in favor of defendant, entered upon a decision of the court at Special Term.</p> <p>This action was brought to restrain the collection of an assessment upon certain property of plaintiff and to vacate and set aside the assessment as a cloud upon plaintiff’s title. The facts, as found by the court, are substantially as follows : That on the 2d day of March, 1868, the commissioners of the Central park, at an adjourned meeting, of which all the members of the board had due notice, adopted the following resolutions by the affirmative votes of five of. the members of said board, three being absent. (The prior meeting was held on the 26th day of February, 1868, at which meeting six of the members of said board were present and acting.)</p> <p>“ Hesolved, That the comptroller of the parks be authorized, on behalf of this board, to carry into execution by contract or otherwise, as allowed by law, the regulation, sewerage and drainage of the Sixth avenue, from the southerly side of One Hundred and Tenth street to Harlem river, except the surface plan thereof, according to sueli grade as has been approved by the board.</p> <p>“ Hesolved, That the subject of a plan for the improvement of the Sixth avenue, from the southerly side of One Hundred and Tenth street to the Harlem river, be referred to the special committee heretofore appointed on the Seventh avenue improvement plan, with power to determine on the plan of surface improvement for said Sixth avenue, and that when said committee have decided thereon, the comptroller of the park be authorized to carry the same into execution.” That the resolution above referred to, relative to the Seventh avenue improvement plan, was duly adopted at a meeting of the board of commissioners of the Central park, held on the 16th day of March, 1867, of which the following is a copy:</p> <p>“ Resolved, That the several plans for the improvement of the Seventh avenue, from the park to the Harlem river, be referred to a special committee of three members, with power to determine upon the plan of surface improvement for said avenue, and that when said committee have decided thereon, the comptroller of the park be authorized to carry the same into execution.”</p> <p>-J</p> <p>That the following resolution was adopted by the commissioners of the Central park, on the 2d day of July, 1867, five commissioners voting therefor:</p> <p>“ Resolved, That the commissioners of the Central park hereby change the grades of all the streets between the Fifth avenue and the Eighth avenue, from One Hundred and Eleventh street to One Hundred and Thirty-fifth street, both inclusive; and also the grade of the Sixth avenue, between One Hundred and Tenth street and One Hundred and Thirty-fifth; and fix and establish the grades of the avenue St. Hicholas, from the Sixth avenue to the Eighth avenue, and also of the Sixth avenue, from One Hundred and Thirty-fifth street to the Harlem river, and also of the Eighth avenue, from One Hundred and Thirty-fifth street to One Hundred and Fifty-fifth street, and also of all the streets between the Fifth avenue and the Eighth avenue, from One Hundred and Thirty-sixth street to One Hundred and Fifty-fifth street, both inclusive, as the same are shown on a map entitled ‘ map of the grades of streets and avenues, changed, fixed and established by the commissioners of the Central park, in pursuance of section 1 of chapter 367 of Laws of 1866, dated New York, May 27, 1867, and signed John L Serrell.’ ”</p> <p>That under and pursuant to the resolution, passed on the 2d day of March, 1868, the work was done by contract and days’ work, as provided for therein.</p> <p>That on the 2d day of August, 1872, an assessment for said regulating and grading of Sixth avenue, from One Hundred and Tenth street to the Harlem river, was confirmed by the board for the correction .and revision of assessments, and an assessment was thereby imposed upon certain specified real estate of the plaintiff. That the entire cost of the work was assessed upon the property benefited, as mentioned in the said assessment list. That the payments for the said work were made at different times, the last payment being made March 11, 1871. These payments were all made out of moneys deposited by the comptroller of the city of New York to the credit of the commissioners of the Central park.</p> <p>The assessment list was received by the board of assessors from the department of public parks, on the 20th day of June, 1871, and was advertised for objections on the 1st day of July, 1871, and it was sent to the bureau of revision and correction on the 10th day of August, 1871, and confirmed by said board on the 2d day of August, 1872.</p> <p>It was admitted by the plaintiff, that every thing in reference to this assessment, except the confirmation, took place before the passage of the statute. (Chap. 299, Laws of 1872.)</p> <p>The court found, as conclusions of law, that plaintiff has not shown that the aforesaid meetings of the commissioners of.the Central park, at which the resolutions above set forth were passed, were irregular or without due notice previously given to all the members of the board. That the delegation by the board of Central park commissioners to the comptroller of the park, of the authority specified in the foregoing resolutions of March 2, 1868, was irregular and unlawful and was not cured by their subsequent adoption of his acts; but it was remedied by the act passed May 7, 1872 (chap. 580 of the Laws of 1872). That the act of 1872 in no respect relieved the plaintiff as owner and occupant of lands benefited by such improvement, or his property from assessment to the extent of such benefit, nor entitled him nor his property to relief or credit for or in respect to any portion of the sums the comptroller was by that act authorized to borrow for the expenses of such improvement. That the plaintiff had shown no legal ground for the exemption of his property from the assessment in question, and thereupon directed a dismissal of the complaint.</p> <p>Chapter 564 of the Laws of 1865, in so far as it transfers to the commissioners of the Central park the power to regulate the grade of Sixth avenue, is unconstitutional. (Const., art. 10, § 2 ; People v. Draper, 15 N. Y., 532 ; People v. McKinney, 52 id., 374; People v. Albertson, 55 id., 50 ; People v. Pinckney, 32 id., 382 ; Laws 1857, chap. 771, § 3 ; Laws 1859, chap. 349, § 3 ; Laws 1861, chap. 88, § 1; Laws 1813, chap. 86, §§ 175, 176 ; Valentine’s Laws, 812,1190,1192; In re Cent. Pk., 35 How. Pr., 275 ; People v. Acton, 48 Barb., 524, affirmed Ct. App.; Schuster v. Bd. of Health, 49 Barb., 450; Wenzler v. People, Ct. App.) The commissioners of Central park could not delegate to a special committee the power to determine on the plan of surface improvement for Sixth avenue. (Thompson v. Schermerhorn, 6 N. Y., 92; Dillon Mun. Corp., 108, § 60 ; 588, § 618.) The objection that all the commissioners did not meet and consult with reference to the regulating and grading of the avenue and the contract therefor, is fatal. (2 N. Y. Stat. at Large [Edm. ed.], 575, § 27; In re Blodgett, cited 46 N. Y., 180 ; Palmer’s Case, 1 Abb., 30.) The board of assessors erred in imposing the entire expense of the work upon the property owners. (Laws 1865, chap. 564, p. 1133 ; Laws 1867, chap. 697, p. 1748 ; Laws 1872, chap. 299; In re Folsom, 56 N. Y., 66; Laws 1867, chap. 580; Laws 1869, chap. 890; Laws 1866, chap. 367, § 7; Ely v. Holton, 15 N. Y., 595 ; Hartung v. People, 26 id., 167-172; Homer v. Lyman, 4 Keyes, 237-252.) More than one-half the expense having been assessed upon the property owners, the whole assessment is void. (Blackwell on Tax Titles, 160, et seq.)</p> <p>Chapter 564 of Laws of 1865, which conferred upon the commissioners of Central park power to regulate, grade and improve a part of Sixth avenue, is not unconstitutional. (Kellinger v. Forty-second St. R. R. Co., 50 N. Y., 209 ; People v. Draper, 15 id., 543, 545; People v. Albertson, 55 id., 54; In re Cent. Pk., 35 How. Pr., 275 ; Stewart v. Laird, 1 Cranch, 299 ; Rogers v. Gardiner, 2 Mass., 428; Cooley on Const. Lim., 67, 69 ; Ames’ Science Jurisprudence, 476, 479.) The objection that all the commissioners did not meet and consult with reference to the regulating and grading and the contracts therefor, is not fatal to the assessment. (In re Anderson, Ct. App., April, 1875; Rae v. Mayor, etc., N. Y. Supr. Ct.; In re Phillips, Gen. Term; In re Smith, Ct. App., Peckham, J.)</p>

(Reported below, 7 J. & S., 120.) This action was brought to restrain the collection of an assessment upon certain lots of plaintiff in the city of ¡New York, and to have the record thereof canceled as a cloud upon plaintiff’s title.

(Reported below, 2 Hun, 293; 4 T. & C., 512.) This action was brought to recover damages alleged to have been occasioned by the flooding of certain premises, situate in New York city owned by plaintiff', by reason of the negligent and improper construction of sewers by defendants. Plaintiff claimed title under a deed from the city to the Farmers’ Loan and Trust Company which conveyed nine parcels of land.

(Reported below, 1 Hun, 527 ; 3 T. & C., 777.) This action was upon a policy of insurance alleged to have been issued by defendant. Defendant denied the issuing of the policy, and alleged a prior insurance of which defendant was not notified and which, by the terms of the policy, rendered it void. It appeared that in 1872 plaintiff had procured a policy upon the property in question in the Andes Insurance Company through Foster & Goggin, insurance agents in Potsdam, FT.

(Reported below, 2 Hun, 132; 4 T. & 0., 682.) This action was brought to recover certain moneys alleged to have been paid over to defendant as surrogate of Westchester county, by his predecessor in office, belonging to plaintiff.