Volume 63 — Barbour's New York Supreme Court Reports

THIS is an appeal.by the defendant from an order made at special term, in the sixth judicial district, affirming the taxation of costs by the clerk of Cortland county. The action originated in a justice’s court, and was upon contract. The plaintiff recovered, in the justice’s court, $80, besides costs. An appeal was taken to the county court, and a trial there resulted in a verdict for the plaintiff for $90.

The action was brought by the plaintiffs as administrators of Cortland Dutcher, deceased, to recover the amount due upon a promissory note, of which the following is a copy: “ Red Brick, Sept. 19th, 1865. '$150. Two years from date, for value received, I promise to pay Cortland Dutcher, or bearer, the sum of one hundred and fifty dollars, with interest from date. Walter M. Porter.

<p>It is the clear province of the jury to deal with facts; especially in cases of conflict of testimony; and the province of the jury only.</p> <p>To justify an appellate tribunal in setting aside a verdict on the ground that it is against the weight of evidence, it must be entirely against the weight of evidence.</p> <p>A new trial will not be granted where the testimony is contradictory, and the character and credit of the witnesses questioned, on the ground that the verdict is against the weight of evidence.</p> <p>The verdict of a jury, in cases of conflict of testimony, can only be set aside when the case itself presents the evidence that the jury must have been influenced by passion, prejudice or mistake.</p> <p>When there is no decided preponderance of evidence on either side, the case depending mainly upon the.conflicting testimony of the parties themselves, who are equally respectable and unimpeached, the jury are the proper persons to decide between them, as to whose testimony is entitled to the greatest credit.</p> <p>Although there may be cases in which the ends of justice demand that the court should possess the power to correct abuses committed, by a panel of jurors, that power should be limited by reasonable rules: It must be an abuse; it must be such a verdict as evinces that it was the result of passion, prejudice, mistake or corruption; such a verdict as shocks the common judgment; or such as is without evidence to support it, or is so against a striking preponderance of evidence that a common exercise of judgment demands its reversal.</p>

THIS action was commenced in a justice’s court, in the form of replevin, to recover possession of a buffalo robe, of the value of fourteen dollars. Preliminary papers were made out for that purpose, the affidavit being made by an agent of the plaintiff. This agency does not appear in the affidavit itself, nor any reason why the plaintiff did not himself make it. And the matters stated in the affidavit are of positive knowledge, which could hardly be had by a mere agent.

THIS action was brought to restain the foreclosure of a mortgage executed by Martin B. Perkins and his wife, on the 1st day of October, 1850, to secure the loan of $1000 that day made by the then loan commissioners to said Martin, and to have the judgment of the court that said mortgage is not a lien upon said premises against the grantees and assigns of Martin B. Perkins, the mortgagor.

THIS was an action, commenced by the plaintiff in a justice’s court, to recover, by his title as constable, claiming it by virtue of a levy upon executions issued by justices of the peace, certain property which the defendant had purchased of one George W. Bishop, who was the defendant in the said executions. The property was purchased after the levy, but purchased from the defendant, who was in the possession, and without knowledge of the levy thereon by the plaintiff

11IIIS action was brought to restrain the defendants, who are commissioners under the statute, from issuing town bonds of the town of Rosendale, Ulster county, in aid of the construction of the Wallkill Valley -Railroad. The defendants were appointed commissioners of said town of Rosendale, under chapter 311 of the laws of 1868. A temporary injunction was granted on the complaint alone, at the commencement of the action.

THIS action was brought to recover the amount of a JL promissory note, executed and delivered by the defendant to the plain tiff The complaint alleged that the defendant was a married woman, the wife of Eichard C. De Witt, and was, on the 12th day of November, 1867, the owner of a farm of land, and was carrying on business on her sole and separate account, -in the town of Neversink, and as a part o.f her said business she executed and delivered to the plaintiff, on the said…

THIS was an action for a breach of warranty in the sale of a pair of horses, and was tried at the Schoharie circuit. All the questions that arise in the case are upon the rulings of the justice, in the admission or rejection of evidence on the trial. The exceptions were ordered to be heard, in the first instance, at the general term.

<p>In January, 1845, the defendant wrongfully converted to his own use a mare belonging to the plaintiff, for which the latter then had a right of action, to recover from the defendant the value of the mare. In February; 1845, the defendant sold the mare to McK. In an action of trover, for the mare, the defendant offered to prove, in mitigation of damages, that soon after McK.’s purchase of the mare, the plaintiff, claiming her as his property, took her out of the possession of McK. without his consent, and converted her to his own use. This evidence, though objected to, was received. The court charged the jury that the taking back of the property by the plaintiff must go in mitigation of the damages; and that it was a case for nominal damages, only.</p> <p>Held, 1. That the court erred in admitting the evidence offered in mitigation of damages.</p> <p>2. That whether that were so, or not, there was error in charging the jury that it was a case for nominal damages; for if the plaintiff was not entitled' to recover the full value of the mare, he was at least entitled to recover the actual damages he had sustained by being deprived of the use of her, and the expenses he had incurred in regaining his property.</p> <p>The plaintiff offered to show that McK., the defendant’s vendee, had sued him for his taking the mare by force, and recovered a judgment. Held that such evidence was erroneously excluded, as it would have overthrown every pretense of a defense, by the defendant.</p>

<p>An instrument in writing, under hand and seal, but without a subscribing witness or acknowledgment, as required by the Revised Statutes, is insufficient to convey real estate, and void as against a purchaser or incumbrancer.</p>

<p>In an action under the Code, to recover the possession of real estate, the plaintiff must (as in the former action of ejectment) recover, if at all, upon the strength of his own title, and not upon the weakness of that of his adversary.</p> <p>The act of April 11, 1849, (¡Lam, eh. 375, § 3,) which provides that any married woman may convey real estate “ in the same manner, and with the like effect, as if she were unmarried,” repeals, as to married women and their separate estates, the provisions of the Revised Statutes requiring a private' examination apart from their husbands, upon their acknowledgment of the execution of conveyances.</p> <p>A married woman, therefore,, having a power of appointment over lands of which the legal title is vested in a trustee, may execute an instrument desiring the trustee to execute a conveyance of the premises to her, in pursuance of a power contained in the trust deed; and may legally acknowledge the execution of such instrument in the usual form, without any private examination.</p> <p>The validity of the execution of such a request to the trustee is to be tested by the form of acknowledgment at that time requisite, for married women.</p> <p>The claim that the acknowledgment of such an instrument should be in accordance with the Revised Statutes is, at most, based upon an inchoate right, and the repealing statute is valid as against it.</p> <p>Inchoate rights, generally, derived under a statute, are lost by its repeal; unless saved by express words in the repealing statute.</p>

<p>In an action for assault and battery, the defendant offered to prove, in mitigation of damages, a series of provocations, repeated and continued from day to day; and that every time the parties met, the plaintiff took the occasion to insult the defendant with most approbrious language, and to such an extent as to render him wild, excited, frantic and partially insane. Also, that the plaintiff had committed a most grievous injury affecting the domestic relations of the defendant; which was one of the insults with which the latter was taunted. This evidence being objected to, the judge ruled that he would allow the defendant to show anything which took place on the day of the assault, or the day before, but not what took place several days-before; as in that case the defendant had time for his passions to cool. Held that the ruling was erroneous; and a new trial was granted.</p> <p>Where there has been a determined design to continue and repeat insults for the very purpose of exciting another, and to keep him excited, and this course of conduct is repeated every day, and on every occasion, the case is not to be controlled or limited by a few hours, or by a single day.</p> <p>Each case should be controlled by its own peculiar circumstances. The question should be, not how many hours have elapsed since the provocation was given, but whether, in view of the circumstances of the case, the party has had a reasonable time to cool his blood.</p> <p>If it was the plaintiff's design to provoke, excite, irritate and insult the defendant on every occasion of their meeting, and by a series of such irritating and annoying provocations, he kept the defendant in an excited and frantic state of mind, it is his own fault that the defendant was not cool.</p> <p>The jury ought to be permitted to hear the nature and extent of the provocation ; to hear and to know how much of the heating complained of, was, if not deserved, at least caused by the provocation given.</p>

11HIS is an appeal in a proceeding under the statute of . 1850, in relation to the location of the routes of railways, as amended by the laws of 1871, (oh. 560,) to change the location of the Wallkill Valley railway, as surveyed over the lands of Frederick O. Horton, George Coutant, and James Eltinge, in the town of Rosendale, Ulster county.

<p>Retrospective statutes are not forbidden by the constitution, in cases in which they do not impair the obligation of contracts, or partake of the character of ex post facto laws; and such statutes may be made, by express language, to have that effect. Yet, unless they are so expressed, by necessary implication, they will be interpreted otherwise, and so that they shall not operate to change the existing state of things, or the common law.</p> <p>The only exception to this" rule is, that the doctrine does not apply to remedial statutes; which may be of a retrospective nature, provided they do not impair contracts or disturb absolute vested rights, and only go to confirm rights already existing, and are in furtherance of the remedy, and add to the means of enforcing existing obligations.</p> <p>Even remedial statutes are not excepted from the general rule, except in those cases where no other construction can be given without leaving the enactment of no effect; or where such a retrospective construction is a necessary implication from the language employed.</p> <p>By an act of the legislature passed in April, 1871, (Laws of 1871, oh. 695, § 5,) the board of supervisors of any county in the state, (except New York and Kings,) were authorized by a two-thirds vote, to legalize the irregular acts of any town officer, performed in good faith, and within the scope of his authority; provided such legalization should be recommended by the county court of such county, and to correct any manifest clerical or other error in any assessments or returns made by any town officer to such board of supervisors, &c. In this case, the county judge of Ulster county, assuming to act under this statute, recommended that the taxes which had been assessed against the relator for the years 1866, 1867 and 1868, be refunded to her, and made an order to that effect. The board of supervisors refused to refund or allow such taxes. Held that the statute in question was to be held as prospective only; and did not have a retro-active effect, so as to include taxes assessed prior to its passage. Order granting peremptory mandamus reversed.</p>

APPEALS by the defendants from judgments entered upon the reports of referees.

THIS case comes up upon certiorari to the county judge of Tompkins county, to review an order made by him on the 20th March, 1871, adjudging that a petition to bond the town of Lansing, in said county, was in due form, and was duly signed and executed; that the petitioners constituted and represented a majority of the tax-payers of said town, as shown by the last preceding tax list, or assessment roll of said town ; and that the said petitioners represent a majority of the…

The case was this. The plaintiffs were incorporated in 1808. {Laws of 1805, eh. 89 ; Laws of 1808, eh. 119.) By their charter they were tó erect a toll-bridge across the •Chenango river, for the accommodation of the public. And it was declared to be unlawful for any person to erect a bridge or establish a ferry within two miles of the plaintiffs’ bridge. The charter was perpetual.

THIS was an appeal by the plaintiff from a judgment entered on the report of a referee. . The action was brought by the plaintiff to compel the specific performance of a contract for the sale of a lot of land, in Brownville, Jefferson county. The premises had been owned in fee by one Joseph Knowlton, and were by him contracted to be sold to one Chester Folsom.

APPEAL by the defendant from a judgment of the county court of Herkimer county, affirming a judgment of a justice of the peace. . The action was for fraud or breach of warranty on the sale of a horse. The parties had exchanged horses. The defendant representing his horse to be six years old, and sound, except a., bad cold, and good to draw.

PPEAL, by the plaintiff, from a judgment entered upon the report of a referee. The action was in the nature of replevin. The complaint alleges that on or about the 27th day of July, 1867, the defendant took and wrongfully detains, from the plaintiff!, certain articles of personal property belonging to the plaintiff, of the value of $600.

THIS was an action for malicious prosecution, and false imprisonment, tried at the Cayuga circuit in October, 1870. At the trial, the plaintiff proved that the defendant procured an indictment for forgery to be found against him, on which he was tried and acquitted. The charge was, that he, the plaintiff) had committed a'forgery by erasing a payment indorsed on a bond and mortgage held by the plaintiff against the defendant.

<p>P. was the owner- of a railroad, four or five miles in length, leading from and appurtenant to, an iron ore bed owned by him, which road connected with the Harlem railroad at B., where it terminated. The respondents constructed a railroad extending from Poughkeepsie to B. At a point about two and a half miles from B. they intersected or struck the road of P., and from thence to B. had located upon, and proposed to take P.’s road-bed, embankment, excavations, rails and ties, leaving him no outlet from his ore bed, except by constructing a now road in place of the portion proposed to be taken. The commissioners of appraisal appointed in proceedings by the respondents, under the statute, to acquire the title to the land of P. proposed to be taken, in their allowance of damages, named but two items, viz.; the value of the land taken by the respondents, in its present condition, including grading done thereon, and the value of the iron and ties constituting the track as at present- laid down; excluding damages arising from depreciation in value of that part of P.’s railroad not taken; also damages to arise from any depreciation in value of the ore bed by cutting off existing accommodations for transporting ore; and damages arising from delay while the respondents were using his road, and during the time required by P. to construct another road, &c.</p> <p>Held,- on appeal from such appraisal, 1. That confining the damages to the actual value of the land taken,- and to the actual value of the ties and track as at present laid down, was not that just compensation intended by the constitution and the statute for the injury that the taking of the property, for the purpose intended, would cause the land owner, and for all the injuries • he would suffer.</p> <p>2. That if P.’s ore bed, and the remaining section of his railroad, were depreciated in value by such taking, then he should have been allowed damages for such depreciation.</p>

rilHIS action was brought to recover for the value of JL wood and timber standing, under an instrument called a bill of sale. A verdict was rendered for the defendant, on a trial at the circuit. A case and bill of exceptions were made, and the judge ordered the exceptions to be heard, in the first instance, at the general term.

<p>A will contained a devise of the residue of the testator’s estate, real and personal, to the Government of the United States, at Washington, “for the purpose of assisting to discharge the debt contracted by the war for the subjugation of the rebellious Confederate States.”</p> <p>Held, 1. That under this will, the United States Government could not take the real estate so devised.</p> <p>2. That if the devise was to be considered as a trust in the United States, to apply the property devised, for the specified purpose of assisting to pay the debt contracted by the war, such a trust was not only invalid, but there was no competent trustee to take.</p> <p>3. That the land being in this State, the validity of the trust was to be decided according to the laws of this State.</p> <p>4. That the doctrine of equitable conversion could not be applied to the case, so as to make it the duty of the executors to sell the real estate and convert it into personalty, for the purpose of carrying out the intent of the testator.</p> <p>Neither by the common law, nor under our statutes regulating devises, can a devise of lands to the United States be held valid.</p> <p>That government is neither a person capable of taking by devise, nor can the statute regulating devises be construed as extending this right to bodies politic or corporate, except when authorized by the laws of the State to take by devise.</p> <p>By the common law, a devise of real estate was not permitted, except for a particular use. The right to devise real estate rests in the statute. The statute of New York only allows devises to be made to persons capable of holding, and to corporations authorized by their charter to take by devise. The United States, not being within either of these descriptions, cannot take, under our statute.</p> <p>To constitute an equitable conversion of real into personal estate, it mulst be made the duty of, and obligatory upon, the trustees, to sell in any event. A mere discretionary power of selling produces no such result.</p> <p>The doctrine of equitable conversion is based upon the principle that equity will require a thing to be done that ought to be done; but when it is apparent • that the thing sought to be obtained was contrary to law, there is no ground upon which the doctrine can be made applicable.</p>

APPEALS from orders made at a special term vacating assess.ments, upon applications under chapter 338 of the laws of 1858. The facts in the • several cases, and the points raised therein, being similar, it is only necessary to state those in the first—upon the petition of Bassford and Harrigan.

<p>While in deeds, and other instruments, a party may, for certain purposes, prove the consideration to have been different from that expressed, such evidence is not admissible to contradict an agreement or covenant to pay a certain sum.</p> <p>The principle that previous oral negotiations are merged in the writing, is also a reason why such proof should not be admitted; in the absence of fraud or mistake.</p> <p>Where, in an action upon a written agreement, the oral evidence disclosed that the parties to the action, between themselves, fixed $450 as the sum to be paid by the defendant as rent for a stone quarry, untruly, for the purpose of obtaining from another person a portion of that sum; when, as between themselves, $250 was all that was to be paid by the defendant; Meld that if this was true, it was a fraud, which a party was not allowed to set up as a defense.</p>

<p>Where the property of a judgment debtor, sought to be reached and applied upon the judgment, is real estate, only, and the debtor has no other property out of which the judgment can be satisfied, and that has been conveyed to another, in fraud of the judgment, it is not essential to relief for the judgment creditor to show that execution has been issued upon his judgment.</p> <p>Thus, where it was alleged in the complaint, and admitted by the demurrer, that a just debt was due from a defendant; that after the same was created, and before judgment thereon, he sold and conveyed the premises sought to be reached to one of his co-defendants, with the fraudulent intent and design of cheating and delaying the judgment creditor in the collection of his debt; that he was without pecuniary responsibility, and owned no other property out of which the judgment, or any part thereof, could be collected; Sold that a court of equity had power to grant the appropriate relief to the plaintiff by declaring the fraudulent conveyance void, and setting it aside, and decreeing that the judgment debtor was the owner of the premises conveyed by it, and that the same were subject to the lien of the judgment.</p> <p>And that it was no objection to the granting of such relief, that the plaintiff did not allege, in his complaint, that an execution had been issued upon the judgment, and placed in the hands of the sheriff.</p> <p>Courts of equity acquire jurisdiction to aid legal remedies, when it appears that without such assistance the legal process is ineffectual, and that with such assistance beneficial relief can be rendered.</p> <p>If the property sought to be reached by a judgment creditor is liable to sale on execution, then it must be made to appear that it has been made subject to the lien of the judgment, and that there is some necessity for asking the aid of a court of equity.</p> <p>So far as real estate is concerned, the lien is effected by docketing the judg- , ment in the county where the lands are situated; and as to goods and chattels, by issuing execution to the sheriff of the county where the property is situated, and levying on the same. The lien being thus placed upon the property, the creditor is in a situation to ask relief in a court of equity, if ¡ there be an existing necessity.</p> <p>The lien of a judgment on the land of the judgment debtor, and the right to sell it on execution in payment of the judgment, is the basis of the right to have a fraudulent sale or incumbrance removed. And the fact that the debtor has no other property proves, conclusively, that there is a necessity for relief. The issuing of an execution, in such a case, does not change the situation, in the least, or benefit either party. And a return of nulla bona is only evidence of the necessity of securing aid from a court having equity powers.</p> <p>Where a complaint does not allege that an execution, issued upon a judgment, was directed to the sheriff of the county where the judgment debtor then resided, the complaint is not aided by an averment that such execution was returned nulla bona.</p>

THIS is an appeal from a judgment entered on the verdict of a jury, in favor of the plaintiff. The action was tried at the Cattaraugus county circuit, before the Hon. Geo. D. Lamont. By the bill of exceptions, it is disclosed, that one Albert Hosley was sole trustee of the said school district,- and that his term of office expired on the 11th day of October, 1870, and on that day the defendant was elected his successor in office, and has held the office ever since.

PPEAL from a judgment of the county court of Onondaga county, upon a verdict of the jury, rendered on the second trial of the action. The case, as it appeared on the appeal from the judgment rendered on the first trial, is reported in 60 Barb. 388. A new trial having been granted, upon the former appeal, the second trial was had, before the county judge of Onondaga county, and a jury, in October, 1871.

<p>1XHIS action is to foreclose a mortgage, made and exe- . cuted by Milo W. Hill.</p> <p>Prior to the 7th day of August, 1855, Hill, the mortgagor, owned the mortgaged premises in fee. On that day the premises became subject to a lien of $1851, by virtue of the recovery and docket of a judgment against Hill. On the 24th day of August, 1855, Hill executed to one Luman A. Miller a mortgage on the same premises, for the sum of $5304, and it was recorded in Erie county clerk’s office on the 27th of the same month. On the 22d day of November, 1856, the premises were sold on an execution issued on said judgment, and bid in by one Gibbs. On the 4th day of May, 1858, a deed of the premises was executed, by the sheriff, to Edwin H. Gibbs, the assignee of the certificate of sale. On the 1st day of June, 1859, Gibbs conveyed the premises to Miller, the mortgagee, who, up to this time, remained the owner of the said mortgage, never having taken any steps to effect a redemption of the premises, from the sale on said prior judgment.</p> <p>May 20, 1860, Miller deeded the premises to one Lewis 0. Hill. By an arrangement, existing between Miller and one Austin, this mortgage was placed in Austin’s hands, who re-transferred it to Miller, and he to the plaintiff The referee finds that Miller had possession of the mortgage when he deeded to Hill. In proceedings by the creditors of Milo W. Hill, against him and Lewis O. Hill, it was decreed that Lewis O. held the title in trust for Milo W., and in fraud of creditors, and both were ordered to convey to a receiver. The defendant Pixley claims through a purchase from the receiver, and stands upon that title, and claims that the mortgage sought to be foreclosed is merged, and the lien extinguished. Other facts bearing upon the case are stated in the opinion.</p> <p>The referee held that Pixley.’s title was discharged from the mortgage, and dismissed the plaintiff’s complaint. Erom the judgment entered thereon the plaintiff appealed.</p>

THIS is an appeal from a judgment directing the specific performance of a contract, for the sale of real estate. The plaintiff is the vendee, and the defendant the vendor, named in the contract. The cause was tried at a special term held in Cattaraugus county.

rni-IIS action was tried at the Cayuga circuit in October, 1 1871, before Hon. H. A. Foster, then one of. the justices of this court. The cause of action set .forth in the complaint was for the purchase price of personal property, alleged to have been sold and delivered, by the plaintiff, to the defendant— being a horse, buggy and harness—at the price of $385, of which $35 was paid down at the time of the making of the contract.

i The following opinion was delivered at the special term, ' by the justice before whom the motion was made, upon exceptions taken at the trial; Daniels, J. This action is on a promissory note, made by the defendant, on the 12th of July, 1869, by which he promised to pay to Phineas Strong, or bearer, the sum of $500, with interest, in three months after the date thereof.

<p>A note, valid in the hands of the holder, is property, which may be sold at any price.</p> <p>The price paid, on the purchase of a promissory note, may go to the jury on the question of good faith; but it cannot, as a matter of law, be held to impeach the title of the holder who is otherwise a purchaser in good faith, for value, and without notice.</p> <p>Where the maker has intentionally issued a promissory note and put it in circulation as a valid note, although induced to do so by the fraud of the payee, . ynd'the same is purchased,by a third person for a valuable consideration and without notice, though at a discount greater than the lawful interest, the latter may maintain an action thereon as a Iona fide holder.</p> <p>The Iona fide holder of a note which has been obtained from the maker by fraud, has no equity, as against such maker, to be^protected beyond the amount of the advances he has made, upon the faith of the note. MunLiir, P. J., dissented.</p>

THIS is an action to recover damages and for an injunction to restrain the continuance of an alleged nuisance, caused by operating lime kilns in Fayettville.

THIS action was brought to recover damages for injuries sustained by the plaintiff as a passenger on the defendant’s railway, on the 8th of March, 1869. At the time of the injury the plaintiff was in the smoking car, the first passenger car in the train, and the train was moving at the rate of about thirty miles an hour, on its way between Port Jervis and the city of Hew York, proceeding to the place last named.

APPEAL, by the plaintiff, from a judgment of nonsuit ordered at the circuit. The action was brought to recover damages for the breach of a contract by the defendant, in not working and conducting a farm according to an agreement or lease set out in the complaint.

<p>The courts of this State have repeatedly held that land taken, in a city, for public parks and squares, by authority of law, whether advantageous to the public for recreation, health or business, is taken for a public use; and there appears to be no reason for doubt on the subject. Per Leonard, J.</p> <p>The constitution of this State having authorized, property to be taken for public use, and the compensation, therefor to be ascertained by a jury, or by not less than three commissioners appointed by a court of record, when these conditions have been observed, it is. not the province of this court to determine, in opposition to the authority granted by the legislature, to the commissioners of the Central Park, as to the necessity for laying out new parks or squares.</p> <p>The citizen is entitled to the absolute control of his estate, unless it is taken for public use, in due form of law; and this right it is the duty of the court to maintain.</p> <p>His land can be so taken only by “ due process of law.” But when the conditions required by the constitution of the State to be observed, for the' protection of the rights of the citizen, have been complied with, it must be regarded as a fulfillment of the direction in respect to “ due process of law whether the direction be found in the State constitution, or in the fifteenth amendment to that of the United States.</p> <p>The protection of that amendment can be invoked only when the right of the citizen has been invaded by a disregard of the “ due process of law,” as guarantied by the fundamental law of the State.</p> <p>It is not a valid ground of objection to the confirmation of a report of commissioners of estimate and assessment in proceedings for opening a new park, that the lands embraced in such park are not all contiguous; that is, that there are intervening blocks and spaces not taken; where such intervening spaces are not so large as to interfere with the integrity or continuity of the plan, or the equalizing of the assessments.</p> <p>Nor is it any ground of objection to such report that the commissioners have regarded the land of a railroad company, lying within the designated limits of the new park, and occupied by the company for its. track, as not having been taken for the use of the park, and as not requiring any estimate for damages, or assessment for benefits.</p> <p>The use of the line of the track by a railroad company is a franchise granted by law to such company, in the nature of a contract, and as such, inviolable, except under the general power reserved to the State, to alter or repeal the company’s charter.</p>

nnHIS action was commenced on the 17th of November, 1 1870, and an injunction order was granted November 19, 1870, by Justice Doolittle, with' an order to show cause; and upon the hearing of the order to show cause, the injunction was dissolved, and the defendants raised the requisite funds by taxation to pay the coupons due in 1871, &c. The order dissolving the injunction was not accompanied by any opinion delivered by the justice granting the same.

<p>Under the provision of the Revised Statutes directing that where the real estate of a deceased person shall have been sold by order of a surrogate, the moneys arising from the sale shall be'brought into the office of the surrogate, for the purpose of distribution, and shall be by him retained for that purpose ; and requiring the surrogate, in the first place, to pay, out of such moneys, the charges and expenses of the sale, there can be no Ken upon such moneys, even for the fees and disbursements upon the application for the sale.</p> <p>The entire fund must be brought intact into the office of the surrogate, and the attorney can then apply to that ofiicer, whose duty it will be, before making the general distribution, to award and pay him a reasonable fee for his services in the matter of the sale, together with his necessary outlay thereon.</p> <p>For services rendered to the administratrix, apart from the matter of the sale of the real estate, there is not only no lien, but no right to priority of payment. Such priority is confined to the “ charges and expenses of the sale.”</p> <p>And apart from the statute, in any case where moneys are realized or received under the orders of a court, competent to deal equitably with the fund, there can be no lien upon the same for any services rendered; but such services must be paid for, if it be sought to charge the fund, by the order of the court where the matter is pending.</p>

rm-IIS is a motion on a re-argument of a case originating JL in a justice’s court, where the plaintiff recovered $95 damages, and the defendant appealed to the county court therefrom. In the county court the plaintiff recovered but $49 damages, and the question was, and is, which party was entitled to costs.

THIS action was brought in a justice’s court-, to recover for the conversion of a cow, cutter, sulky and harness. On the trial the sulky was withdrawn. The answer was a general denial; under which the defendant justified the taking, as deputy sheriff, under and by virtue of a judgment and execution in favor of the Black River Bank against J. R. Knight and the defendant, Forward. Knight was the principal debtor, and the sheriff levied by direction of Forward.

APPEAL, by the defendant, from a judgment entered at a special term, on the verdict of a jury. The complaint was on a promissory note for $500, alleged to have been made by the defendant and his son Chauncey Fults, to the plaintiff dated April 24, 1860, at 19 months; due November 24, 1861. The note was alleged to be lost. The answer denied the making of the note, &c., and alleged settlement and discharge.

THIS was an action to recover the possession of one-fourth part of 30 acres of land situate in Denmark, Lewis county. From 1814 to 1833, Gardiner Cottrell, father of the defendant, owned 100 acres of land in Denmark, and he died about the year 1833. His children were four, viz: Lewis, Ardelia, Albert and Sally. Soon after the old man’s death, Lewis, the defendant, bought out the rest of the heirs, taking a deed in the like form from each.

nnHIS action was tried at the Jefferson special term in 1 November, 1871, and was prosecuted by the assignee in bankruptcy of Melancthon Inman, to set aside a conveyance executed by Inman when insolvent and within four months before the filing of the petition of bankruptcy against him, with a view to give a preference to one of his creditors, having reasonable cause to believe he was insolvent, and that such conveyance was made in fraud of the provisions of the United States…

APPEAL, by the defendant, from a judgment entered upon the report of a referee. The action was brought to recover for the value of a package entrusted tó an express company, of which the defendant Fargo was president, for transportation, and which was claimed to have been lost through the carelessness and negligence of the company.

399, N, S.,) the case being thus : The action was brought to oust the defendant from the office of superintendent of the poor of the county of Schenectady, and to put the relator in his place. The relator and defendant were opposing candidates for that office, at the general election held in November, 1871.

<p>The act of 1872 (eh. 376, § 2) requires the- comptroller of the city of New York, “ to allow and pay the bills of the several proprietors of the newspapers in said city and county for all city and county advertising actually done prior to January 1, 1872.” Meld that it was not the effect of this provision to legalize all previously illegal demands, and to require the payment of the bills of mere volunteers, the same as those of persons publishing under legal authority;' and there wais nothing in the act demanding such an interpretation.</p> <p>That the object of the statute, so far as the newspapers were concerned, evidently was to provide an appropriate procedure, with an adequate fund, for the speedy liquidation and payment of all strictly legal obligations, and also of all just and honest claims of an equitable, if not of a technical legal character.</p> <p>That there was the fullest intention of providing for publishers who had acted under legal authority, or at least in good faith under color of such authority', but none of presenting any part of the public funds to those who had acted in violation of law, and without a shadow of authority.</p> <p>Meld, also, that as to claims for services done apparently without any contract express or implied, and without any legal authority, or even official request, the allowance of such claims would be pure gratuity, and the court would not, by mandamus—a writ which only issues in cases of unquestionable legal right—direct the board of apportionment and audit even to consider them.</p> <p>But that where services were performed under color of legal authority, and were beneficial to the city, and necessary, they came within the provisions of the act of 1872 ; and that a mandamus Would be issued, directing such board to audit and allow the bills for such services.</p>

THIS is an action upon an agreement, made upon a settlement between the plaintiff and one Daniel F. Dygert, by the defendant, to pay to the plaintiff $450, which sum was placed by Dygert in the hands of the defendant, as a trustee, for the use of the plaintiff.

APPEAL, by the defendant, from a judgment entered upon the report of a referee. The report was in favor of the plaintiff for $168.78. Judgment January 31, 1865, for $240.57, damages and costs. The complaint alleges, in substance, that by the laws of the State of Illinois the Bock Island Coal and Coke Company was authorized to borrow money upon the bonds of 'the company, to an amount not exceeding $100,000, and to pay interest thereon at the rate of ten per cent.

APPEAL, by the,defendants, from an order of the special term of Monroe county, appointing commissioners to appraise the compensation to be paid to Eiehardsou and Calkins, for the right to lay a gas main in the highway in front of their premises, leading from Henrietta to Bochester.

<p>APPEAL, by the defendants, from an order continuing the injunction in this action.</p>

<p>In a suit in equity, brought by one of the heirs of a grantor, against another, to set aside á deed executed to the defendant, and to have the plaintiff declared entitled to the undivided half of the premises conveyed, as one of the heirs of the grantor, on the ground that the grantor was induced to execute such deed by false and fraudulent representations, and by undue and improper influence, and that the grantor was of unsound mind, evidence is admissible, on the part of the defendant, tending to show that from the time he became of age he had, at the request of his father, (the grantor) remained upon the farm embraced in the deed, and devoted his time and labor to the same, for sixteen years, without compensation, upon the promise and ■ agreement of the grantor that he should, in consideration thereof, have the farm, in the end, and that he (the grantor) would either deed or will it to him.</p> <p>Such evidence is admissible on several grounds : 1. As tending to show a defense to the action. 2. Upon the question of the validity of the deed, as against the allegation of undue influence. 3. As a circumstance touching the question of the grantor’s sanity or insanity : and to show the reasonableness and propriety of the deed, and that its execution was a sane and just act, and evinced the exercise of reason and judgment.</p> <p>Where the defendant, in such an action has no remedy at law, to get compensation for the labor of years, except through the contract he offers to prove; and where, if such a contract existed, he was induced thereby to remain with his father, and labor for Ms benefit, for several years, relying upon his promise that he should ultimately, either by deed or will, have the farm upon which his labor was thus bestowed, then the case presents the precise circumstances under which the court will refuse to interfere to set aside the conveyance; because it cannot exercise its jurisdiction by so doing, and at the same time do justice to the defendant.</p> <p>A court' of equity, when its jurisdiction is invoked to set aside deeds and contracts of a person upon the ground of insanity, acts upon equitable principles. It is by no means a matter of course for a court of equity to set aside and declare void the act of a lunatic executed during Ms lunacy. It does so in no case, except upon equitable terms—upon the universal maxim of that court, that he who seeks equity must do equity.</p>

<p>WEIT of error to the court of oyer and terminer of Wayne county.</p>

<p>APPEAL from a judgment rendered for the plaintiff, at the Cattaraugus circuit, on a trial by the court, without a jury.</p>

<p>Customs must be reasonable, and not contrary to the general principles of law.</p> <p>A usage of a particular trade may sometimes be proved with the view of raising the presumption that the parties contracted with knowledge of, and reference to it, so that it entered into and became a part of the contract.</p> <p>In such a case, it must be shown that the party against whom the usage is set up had notice óf it, at the time of making the contract, or it must be shown to have been so long continued, universal and notorious that all persons may be presumed to have had notice of it.</p> <p>A custom to the effect that a person employed to cut staves from another’s bolts has a right to take, and appropriate to his own use not only the clippings and corner pieces but the culls, without the consent or agreement of the owner, cannot be sustained.</p> <p>Such a custom is not only not in harmony with law, but is manifestly against public policy.</p> <p>To allow a mechanic-or artisan, who works up the materials of another, to keep so much of such materials as is not used for the benefit of the owner of the materials is to array his interests in direct opposition to those of his employer. Per Talcott, J.</p> <p>In an action by the owners of a stave-mill, to recover, upon a contract, for cutting a quantity of staves, at their mill, for the defendant, at a certain ' price per thousand, a claim of the defendant against the plaintiffs, for converting to their own use a large quantity of the staves, cull staves and corner pieces, made from the stave bolts of the defendant, which were drawn to the plaintiffs’ mill to be cut into'staves, arises out of the plaintiffs’ claim, and is connected with the subject of the action. Hence it is admissible as a counterclaim, under the Code, (§ 150.)</p>

<p>APPEAL, by the plaintiffs, from a judgment of nonsuit ordered at the Chautauqua circuit.</p>

<p>APPEAL from a judgment for the defendant, entered on the report of a referee.</p>

<p>EXCEPTIONS taken on a trial at the Orleans circuit and ordered to be heard at the general term, in the first instance.</p>

MOTION by the defendant to set aside an order entered by the plaintiffs, ex parte, discontinuing the action, after a partial trial before a referee, and after a portion of the defendant’s evidence had been given, before the referee.

The action was to declare deeds of lands worth $30,000 to be mortgages, and that the defendant held the title as trustee, &c.

<p>Upon the death of a stockholder in a corporation, intestate, and the appointment of administrators of his estate, and their acceptance of the trust, such administrators become, by operation of law, vested with the legal title to the stock, and consequently stockholders of the company, representing the estate of their intestate.</p> <p>As such, they have all the rights appertaining to the ownership of the stock, one of which is, the right of voting at «elections of directors of the company. H</p> <p>No formal transfer, on the hooks, is necessary to give this right. ,</p> <p>The fact that the decedent held the stock subject to a trust or duty in favor of others does not affect the question. The right to vote follows the legal ownership, and the corporation has nothing to do with the equities between the owner and third persons.</p> <p>Upon the death of a trustee of personal property, the trust devolves upon his representative. And as to everybody except the cestui que trust, such representative is absolute owner.</p> <p>As trustee, however, he owes the duty of active management, for the protection and preservation of the trust estate. And where that consists of stock in a corporation, the duty of voting at elections of directors thereof is too plain for argument.</p>

mHIS was an appeal, by Robert J. Livingston, from an JL order of Judge Gilbert, confirming the report of the commissioners appointed to widen Broadway from 34th to 59th streets, in the city of Hew… Held: that the authority exercised by the legislature in this case was valid.

DEMURRER to answer. The plaintiff was elected justice of the first district court of the city of New York, and entered upon his six years term of office January 1, 1870. His salary was fixed by the mayor and comptroller at $10,000 per annum, and was paid, at that rate, up to September, 1871. Subsequent to .that date, the plaintiff’s salary was paid at the rate of $5000 per annum; and this action, was brought to recover the balance claimed to be due.

APPEAL, by the defendant, from a judgment entered upon the report of a referee. The action was brought by Martin W. Brett, James E. Brett and G-ustavus A. Brett, constituting the firm of Brett, Son & Company, and Lyman B. Carhart, as trustee of the estate of Joshua Gier, deceased, against the defendant, to recover the balance of an account due from the defendant to one Caleb Barstow, as treasurer of the defendant, under assignments from Barstow to the plaintiffs.

<p>The same rules must govern the examination of a prisoner on trial, when he avails himself of his privilege to become a witness, as apply to any other witness.</p> <p>One of these rules is, that a party cannot, upon cross-examination of a witness for the adverse party, draw out collateral statements, not material to the issue on trial, and then contradict such statements. He is concluded by the answer of the witness.</p> <p>Upon the trial of a prisoner, upon an indictment, he became a witness in his own behalf. On his cross-examination by the district attorney, he testified that he had not been convicted of burglary,' before the alleged offence was committed. This question was then put to him : “ I ask you again, specifically, were you not, on April 25, 1856, arraigned at the bar of this court, charged with the crime of burglary ; did you not confess your guilt, and were you not sentenced to three years in the State prison, for that offence V The prisoner answered, “ I was not. Ho, sir.” The district attorney offered to prove, by the records of the court, that a person by the name of the prisoner was convicted of felony. The court, although it decided that this Was immaterial proof, unless it was connected, in some way, with the prisoner, admitted the evidence. The district attorney then stated the contents of a record which showed a conviction of a person of the same name as the prisoner, on the 25th of April, 1856, of burglary in the third degree. Subsequently the court rejected evidence to show that the prisoner was the person named in the record of conviction.</p> <p>Meld, that the above rule of evidence was violated, on the trial. That the record of conviction Was inadmissible, even in connection with the testimony aliunde, that the prisoner was the person named in it; and it should have been rejected altogether.</p> <p>Seld, also, that it was impossible to say that the prisoner was not prejudiced by this evidence, or that the rejection of the evidence offered, to show the identity of the person named in the record, cured the error. That the record being in, the jury, in the absence of testimony on the subject, had a right to -draw the inference of identity of person from the identity of name. And that the judge should have withdrawn the matter from the consideration of the jury, and have told them, distinctly, to disregard it.</p> <p>Competent evidence cannot be rejected on the ground that it is inconclusive, or of little weight.</p>

1>HE petitioners, LucindaL. Morgan aud Henry Morgan, are trustees, and Lucinda M. Ely the cestui que trust. They.applied to the court, by petition, for the removal of the co-trustee, William B. Morgan. The matter was referred to a referee, and á report was made, recommending the removal. On that report au order of removal was entered ; from which William B. Morgan appealed.

The complaint was for the wrongful taking and unlawful detention and conversion of the interest of the plaintiff’ in goods, wares and merchandise, of the value of $45,000, owned by the plaintiff, subject to the lien of an attachment for about $11,000, issued to and levied by the defendant as sheriff of the city and county of Yew York.

The indictment charged this larceny as a second offence. It alleged that the said Newman, by the name óf Edward Ryan, was duly convicted of grand larceny in the court of general sessions, on the 23d day of May, 1860, and sentenced to imprisonment in the State prison for the term of two years, and then proceeded to charge him with the larceny for which he was then tried. On the trial, the prisoner was examined as a witness in his own behalf.

The plaintiff in error was indicted under the statute, passed May 6, 1869, for manslaughter in the second degree, in causing the death of Alice Augusta Bowlsby, which death was charged to have been produced by the use and employment, by the plaintiff in error, of certain instruments upon the body of said Alice, with intent to produce a miscarriage.