Volume 63 — New York Reports

This action was brought to recover damages for the alleged non-delivery of four cases of merchandise delivered to defendants. at Liverpool to be transported to Jersey City. The evidence showed the delivery of the goods to defendants at Liverpool consigned to plaintiffs.

This action was brought by plaintiff, as assignee of an interest in a contract, made between the corporation of the city of üew York and one Andrew J. Hacldey under the act (chap. 309, Laws of 1860), for cleaning the streets of said city. The other defendants, it was alleged, claimed interest in the contract, but refused to join as plaintiffs.

(Reported below, 2 Hun, 616; 5 T. & C., 193.) This action was upon a policy of life insurance issued by the defendant upon the life of James Y. Yates in favor of his wife. She died intestate. Leslie, as subsequent owner of the policy, procured a loan from the company, depositing the policy as security, and subsequently, with the assent of defendant assigned it to Harriet Leslie, who, after the death of the insured, assigned it to plaintiff.

<p>Under the judiciary act of 1847 (§ 37, chap. 280, Laws of 1847) a Court of Oyer and' Terminer cannot he held, except in the city and county of New York, unless composed of a justice of the Supreme Court and at least two of the other officers mentioned in the act.</p> <p>A Court of Oyer and Terminer, before whom defendant in error was .tried, consisted at the beginning of the trial of a justice of the Supreme Court, county judge, and two justices, members of the Court of Sessions. During the progress of the trial one of the latter absented himself for a day, during which the trial proceeded. Upon his return he ■ took part in the subsequent proceedings. After the charge, and before the rendition of the verdict, the county judge left the court and did not return. Held, that the Sessions justice, by his absence, disqualified himself from further sitting, and his subsequent participation in the trial was error. Also, that the verdict was received by a court not legally-constituted.</p> <p>It seems, that upon the trial of an indictment for murder, declarations of • the deceased, made when in extremis, which are not statements of fact which a living witness would have been permitted to testify to, but are merely expressions of belief and suspicions, are not competent evidence.</p>

<p>A surrogate has power to direct payment to a legatee of a portion of his legacy in anticipation of a final accounting and distribution of the estate, where it can be done without prejudice to the rights of creditors or other persons interested.</p> <p>The will of H. G. gave to W. W. G. a portion of his estate, but directed that he should have no part thereof until he “ fairly accounted for and settled the amount charged against him ” on the testator’s books. The executors and W. W. G. had a settlement whereby a balance was found due the latter, which settlement was approved by the surrogate, -who thereupon directed a payment to W. W. G. of a portion of his legacy, all the other legatees having been paid a sum as great in proportion to their respective interests. Held, that the right of W. W. G. to his legacy was not dependent upon payment by him of the amount appearing to be charged against him, but that it. could be as well accounted for and settled by offsetting counter demands and charges; and that the settlement removed the objection to an advancement founded on said clause of the will and authorized the surrogate to direct it.</p> <p>Also, that the surrogate was authorized to direct payment of the sum found due W. W. G. on settlement.</p> <p>Also, to allow and direct payment to the executors’ counsel of his fees as settled and adjusted by the executors.</p>

• Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of defendant, entered upon a decision of the court upon trial without a jury. (Reported below, 2 Hun, 676; 5 T. & O., 687.) This action was brought to recover a balance alleged to be due and unpaid of the purchase-price of certain premises sold and conveyed to defendant.

This action was brought to recover a balance alleged to be due plaintiff upon his salary as general clerk of the board of aldermen.

Said Eliza Elmendorf died in April, 1858, leaving a will of which (omitting the formal parts) the following is a copy: “ First. I do hereby nominate and appoint John Van Vechten and Conrad Brodhead executors of this, my last will and testament, and hereby authorize and empower my said executors, and the survivor of them, to sell, at public or private sale, all or any of my real estate, or so much thereof as may he necessary to pay my just debts and settle up my estate.

This was a motion to dismiss an appeal. The action was for slander. A verdict for $500 Was ren-' dered for plaintiff on trial, which was had April 7, 1874. Judgment for that amount of damages, together with costs and disbursements, was perfected April 11,1874. The judgment was affirmed on appeal to the General Term. Judgment of affirmance was perfected July 31, 1875, from which defendant appealed to this court.

This action was brought to recover damages for injuries sustained by plaintiff alleged to have been occasioned by defendant’s negligence in allowing a farm crossing to become, and remain, in an unsafe and dangerous condition. Plaintiff owned a farm through which defendant’s road runs.

<p>Where, in an action against trustees of a manufacturing corporation to enforce the liability imposed upon them by the general manufacturing act, for a failure to make, publish and file the annual report required by said act (§ 12, chap. 40, Laws of 1848, as amended by chap. 338, Laws of 1853), it appears that a report professedly in compliance with the statute was made and filed, in the absence of any evidence of an attempt to deceive or to evade the statute, such report will receive a liberal interpretation and the benefit of any doubt as to its true intent, and meaning will be given to the trustees sought to be charged.</p> <p>The capital stock of a corporation was §800,000; all of which had been issued in payment for patent rights; a report was made and filed stating that “ the amount of the capital stock of this company, and which has been issued for the purchase of patent rights, and which has not been paid in cash, is §300,000.” Held, that this was a sufficient compliance with the statute to save the trustees from liability.</p> <p>In such an action the trustees cannot avail themselves of a defence not personal to them, but going to the foundation of the claim and cause of action against the corporation, which would not be available in its favor; and where a valid debt exists against it,, to which it has no good defence, legal or equitable, the trustees, if in default, are chargeable with its payment.</p> <p>Where a corporation has fully performed a contract on its part to manufacture and deliver certain articles, it is no defence to an action brought to recover the purchase-price, that the contract was not within or incidental to its chartered powers and privileges or the purposes for which it was created.</p> <p>The plea of ultra vires as a general rule will not prevail, whether interposed for or against a corporation, when it will not advance justice, but on the contrary will accomplish a legal wrong.</p> <p>The authorities upon this subject collated.</p> <p>Accordingly, held, in an action brought under said statute by one manufacturing corporation against the trustees of another to recover the contract-price for goods sold and delivered to defendant’s corporation, that the objection that plaintiff was not authorized to manufacture and sell the goods, or to enter into the contract, was not available as a defence. Whitney Arms Co. v. Barlow (6 J. & S., 554) reversed.</p>

(Mem. of decision below, 2 Hun, 678; 5 T. & 0., 195.) This action was brought by plaintiffs as judgment creditors of defendant John W. Burnham, to set aside two deeds of certain real estate, one from said Burnham to defendant Lewis; the other from said Lewis to defendant Anna, wife of said John W. Burnham, upon the ground that said conveyances were without consideration and fraudulent as against creditors.

(Reported below, 6 J. & S., 281.) This action was brought upon a policy of marine insurance, issued by the defendant to the plaintiff, upon a cargo shipped on the schooner Samuel, T. Reese, on a voyage from Hew York to Vera Cruz. The insurance was for $30,000, “on account of whom it may concern,” loss to be paid to plaintiff. The cargo was valued in the policy at $213,000. The whole amount of insurance was $163,000. The vessel, with her cargo, was totally lost.

(Reported below, 5 Hun, 169.) • The facts are sufficiently stated in the opinion. The willful neglect and refusal by defendants to advertise, etc., was an offence, and to conspire to commit it was a conspiracy.

This action was brought against defendant as a stockholder of The Empire Manufacturing and Planing Mill Company, a corporation organized under the general manufacturing law of this State (chap. 40, Laws of 1848), to recover a debt due from the corporation upon the ground that the stock was not full paid.

This action was brought to recover commissions alleged to have been earned by plaintiff, as real estate broker, in negotiating an exchange of a farm belonging to plaintiff for premises of one Martin. The referee found the employment of plaintiff by defendant to negotiate the sale or exchange of the farm at an agreed per centage; that plaintiff did negotiate the exchange, .and directed judgment for the amount of the per centage. .

(Reported below, 2 Hun, 114; 4 T. & G, 685.) This action was brought to recover damages alleged to have been sustained by plaintiff, by being ejected from a train on defendant’s road by the conductor. On the 26th January, 1812, plaintiff purchased a ticket from Elmira to Syracuse entitling him to passage over the Erie railroad and defendant’s road.

This action was brought to recover damages for injuries to plaintiff, alleged to have been occasioned by defendants’ negligence. Defendants were carrying on a planing mill in the city of Brooklyn. They used a steam engine, from which waste hot water and steam were conducted by a pipe under the sidewalk to a hole inside the curbstone, which contained hot water and steam coming from the pipe.

(Reported below, 6 J. & S., 4.) This action was brought by plaintiff, as sheriff of the city and county of New York, upon a policy of fire insurance issued by defendant to Ezekiel S. Candler, Jr., upon a stock of goods, store-house, etc., in Florida. Plaintiff claimed by virtue of various attachments issued against the insured. By the policy a loss was “ to be paid within sixty days after due notice and proof thereof,” made in conformity with conditions of the policy.

<p>Appeal from order of the General Term of the Supreme ■Court in the fourth judicial department, affirming an order •of Special Term denying a motion on the part of defendant to have the service of summons herein set aside and the action dismissed.</p> <p>Defendant is a foreign insurance company incorporated under the laws of Great Britain. It had designated an agent in this State upon whom process in suits against it could be - ■served, as required by the insurance laws of the State, as a \ prerequisite to its doing business here. Plaintiff is a resident of the State, and the action was upon a policy of insurance issued in the State upon property therein. The summons was for relief, and in the usual form as prescribed by the Code, and was served upon the agent so designated. The motion was made upon the ground that defendant being a foreign corporation, the court had no jurisdiction of its person, and that as no attachment had been issued, the court had no jurisdiction of defendant’s property.</p> <p>A defendant may appear specially in an action for the purpose of testing the question of jurisdiction, and by so doing does not confer jurisdiction generally in the case. (Allen v. Malcomb, 12 Abb. [N. S.], 335; Sullivan v. Frazee, 4 Robt., 616; Seymour v. Judd, 2 N. Y., 464; O. and L. C. R. R. v. V. and C. R. R., 6 S. C. R., 488, note; McCormick v. P. C. R. R. Co., 49 N. Y., 303.) The service of a summons gives the court no jurisdiction of the person of a foreign corporation; it can only be obtained by the voluntary appearance and consent of the corporation. (McCormick v. P. C.R. R. Co., 49 N. Y., 303; Hulbert v. Hope Mut. Ins. Co., 4 How., 275, 415; Brewster v. M. C. R. R. Co., 5 How., 183; Dart v. Farmers' Bk., 27 Barb., 337; People v. Cent. R. R. of N. J., 42 N. Y., 289; Doly v. N. T. Co. of Ohio, 3d Dept., March, 1872; O. and L. C. R. R. v. V. and C. R. R., 6 S. C. R., 488, note; Merrick v. Yan Santvord, 34 N. Y., 208, 218, 220, 221.) The fact that a foreign insurance company appoints an agent in this State and does business here, does not affect its domicile or its right to be regarded as a citizen of another State. (Stevens v. Phoenix Ins. Co., 41 N. Y., 149, 154; Kransher v. N. H. Stbt. Co., 7 Robt., 356 ; Schwinger v. Hickok, 53 N. Y., 280.) The motion to set aside the service of summons and dismiss the case for want of jurisdiction of the person of defendant should have been granted. (Hulbert v. Hope Mut. Ins. Co., 4 How., 275,415; Brewster v. M. C. R. R. Co., 5 id., 183; Whitehead v. B. and L. H. R. R. Co., 18 id., 218, 232; Bates v. N. O., J. and G. H. R. R. Co., 13 id., 516, 519, 520; Howell v. C. and N. W. R. R. Co., 51 Barb., 378; Walbridge v. F. F. Ins. Co. of Phila., St. L. Special Term, Sept., 1874.) The appointment by a foreign corporation of an agent or attorney on whom process of law may be served does not affect the right of the corporation to be regarded as a citizen of another State. (Stevens v. Phoenix Ins. Co., 41 N. Y., 149, 154; Kransher v. N. H. Stbt. Co., 7 Robt., 356; Bates v. N. O., J. and G. N. R. R. Co., 13 How., 516; Schwinger v. Hickok, 53 N. Y., 280.)</p> <p>The service of the summons gave the court jurisdiction of defendant even under the Code. (24 S., 457, 157; Laws 1848, chap. 379, p. 497; Laws 1849, chap. 107, p. 142; id., chap. 438, p. 613; Whitehead v. B. and L. II. R. Co., 18 How., 218; McDonough v. Phelps, 15 How., 376; Cumberland Coal Co. v. Hoffman Coal Co., 30 Barb., 159 ; 4 How., 275; 5 id., 183; 13 id., 415; 10 id., 1; 7 id., 238; 43 id., 489.)</p>

This action was brought to cancel an alleged contract for the sale of certain premises in the city of Yonkers as a cloud upon plaintiff’s title thereto.

(Reported below, 2 Hun, 115 ; 4 T. & 0., 399.) This action was brought to recover damages for cutting and appropriating wood and timber alleged to have been taken and appropriated for Ocean avenue in the county of Kings. Plaintiffs were contractors for constructing Ocean avenue in the county of Kings under a contract with the commissioners. By the contract the timber and cord wood within the limits of the road were to belong to the contractors.

(Reported below, 5 Huu, 104.) Plaintiff in error and one Bishop Yader were indicted for the murder of Francis A. Colvin, charged to have been committed on the 19th December, 1873. Plaintiff in error was tried separately. A body, identified as that of the alleged murdered man, was discovered in the Seneca river June 22d, 1874. The skull was found fractured. One Dr. Kimball, who saw the body soon after its discovery, was called as a witness for the prosecution.

This action was upon a policy of life insurance issued on the 11th day of December, 1869, upon the life of John Roehner, husband of plaintiff, who, with the assent of defendant, assigned the same to plaintiff.

This action was brought to enforce by sale, as in case of foreclosure, an alleged equitable ■ lien for unpaid purchase money under a contract for a sale of land.

This action was brought upon a guarantee, executed by defendant, indorsed upon a bill of purchase rendered by plaintiff’s broker, dated December 24, 1866, for 3,000 shares of the Consolidated Gregory Gold Mining Company.

This was a motion to dismiss an appeal from a judgment of the General Term in the third department, affirming a judgment of Special Term in favor of plaintiffs, entered upon an order sustaining- defendant’s demurrer to the complaint, and also to dismiss an appeal from order of said General Term, affirming an order of Special Term granting an extra allowance of $4,000 to defendant Schrier.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of plaintiffs entered upon a verdict, and affirming an order denying a motion for a new trial. (Reported below, 2 Hun, 675; 5 T. & C., 699.)</p> <p>This action was brought to recover for an alleged unlawful seizure and conversion of plaintiffs’ property.</p> <p>It appeared that the property in question was seized by the United States marshal under and by virtue of a provisional warrant issued in proceedings in bankruptcy against Timothy Kinnen and George Welsh, composing the firm of Kinnen & Co., directing the seizure of their goods; that after an adjudication of bankruptcy the goods were turned over to the assignee and by him sold as the property of said Kinnen & Welsh. The evidence offered to connect defendants with the taking was, in substance, that they were the petitioning creditors in the bankruptcy proceedings, and the warrant was issued at their instance; that the marshal acted in making the seizure under the direction of the attorneys employed by defendants in the said proceedings, one of whom was present at the seizing, and also directions of a general agent of defendants ; that after the seizure defendants were notified that a seizure was made, and upon the instruction of said attorneys, that it was customary where goods were seized by a marshal to give a bond, they executed a bond. Such bond was not introduced in evidence, and its form or conditions were not proved. It did not appear that defendants were notified before giving the bond that the goods were claimed by plaintiffs. They were not present at and no direction from either of them in regard to the seizure of the goods in question was proved. Evidence was given tending to show that defendants received their distributive portion with other creditors of the avails of the sales by the assignee.</p> <p>The court charged, in substance, that defendants were liable for the acts of the marshal in seizing the goods, and refused to submit the question to the jury, to-which defendants’ counsel duly excepted.</p> <p>Further facts appear in the opinion.</p> <p>The liability of a suitor or petitioner for a trespass or tort committed by a marshal or other officer of the court depends upon whether the suitor did more than he was called upon to do in setting the officer in motion. (Cranshaw v. Chapman, 7 H & N., 911; S. C., 31 L. J. [Exch.], 277; Raney v. Weed, 3 Sandf., 577, 580, 584; Read v. Hurd, 7 Wend., 408; Day v. Gunn, 1 Den., 109; Thurman v. Wells, 18 Barb., 500; Borrodaile v. Leek, 9 id., 611; McMorris v. Simpson, 21 Wend., 610.) Defendants did not improperly interfere with the officer of the court. (Dumont v. Smith, 4 Den., 320, 321; Watson v. Bennett, 12 Barb., 196, 200; A. & A. on Corp., 297.) There being no technical trespass in the original taking, no action for detention can arise after the property came into the custody' of the bankrupt court. (Herrick v. Manly, 1 Cai. R., 258; Guille v. Swan, 19 J. R., 382.)</p> <p>Defendants, by giving the bond, ratified the seizure and removal of the goods. (Brainard v. Dunning, 30 N. Y., 211.) They are bound by the acts of their attorney. (Newberry v. Lee, 3 Hill, 523; Copley v. Rose, 2 N. Y., 115; Brown v. Felter, 7 Wend., 301.)</p>

(Reported below, 3 Hun, 551.) This action was brought upon a policy of life insurance issued to plaintiff'by defendant upon the life of William P. Swift, plaintiff’s husband. The defence, among other things, was put upon the ground of misrepresentations and concealment.

<p>In an action brought by the attorney-general in the name of The People under the act of 1875 (chap. 49, Laws of 1875) to recover moneys alleged to have been fraudulently obtained from a municipal corporation, the ordering of a hill of particulars is in the discretion of the court below, . and its decision is not reviewable here.</p> <p>So also a decision of the General Term refusing upon decision of the appeal from the order of Special Term to extend the time to demur to the complaint is a matter of discretion and not appealable.</p> <p>The complaint in such an action alleged, in substance, that defendant T., who was one of a board of audit, unlawfully conspired with others to procure false and fictitious claims, to be set up, allowed and paid; that in pursuance thereof such claims were certified to by the members of the board as audited and allowed, in apparent compliance with the statute, when in fact they were not examined or audited, and upon such certificates they were paid. Reid, that the complaint stated but one cause of action, i. «., the fraudulently obtaining the money, the allegations as to the neglect of duty being statements simply of a step in the conspiracy by means of which the fraud was accomplished.</p> <p>The complaint set forth in one count different acts of fraud in obtaining payment of many different fraudulent claims at different times. Reid, ■ that the complaint did not state separate and distinct causes of action, which, under section 167 of the Code, are required to be separately stated, but that the whole might be treated as a single cause of action. The municipal corporation having been made a party defendant, held, that it was not necessary to set forth in the complaint specifically its interest in the cause of action.</p> <p>It is within the discretion of the court below whether to compel an election between two causes of action stated in the same count of a complaint, also whether to require them to be separately stated and numbered, and its refusal so to do is not reviewable here.</p>

This action was brought under the act, chapter 49, Laws of 1875, to recover moneys alleged to have been fraudulently and unlawfully obtained from the corporation of the city of New York by defendant Tweed and others. The amount claimed was over §6,000,000. It appeared by the moving papers that defendant Tweed was held to bail in the sum of $3,000,000. A warrant of attachment was also issued but it' did not appear that any property was levied upon by virtue thereof.

(Reported below, 5 Hun, 359.) The evidence tended to show that the accused and the complainant had been playing cards together and got into a quarrel over the game, which resulted in a fight. The parties closed and during the struggle the accused bit off a piece of complainant’s ear.

The facts are set forth sufficiently in the opinion. To vitiate a will or an instrument, fraud or undue influence must be established by clear and substantial evidence; it cannot be inferred. (Sullivan v. Warren, 43 How. Pr., 188; Hildreth v. Sands, 2 J. Ch., 35; Jaclcson v. King, 4 Cow., 207; 1 Greenl. Ev., § 254; Redf. on Wills, pt. 1, pp. 509, 510 ; 3 Bradf., 320; 34 N. Y., 162; 35 How. Pr., 336 ; 1 Redf., 220.) The term will, as used in the statute, includes codicils.

These were cross appeals from judgment of the General Term of the Supreme Court in the third judicial department, affirming in part and reversing in part a judgment in favor of defendants entered upon a decision of the court at Special Term. This action was brought to obtain a judicial construction of the will or wills of John S. Chipman, deceased, and for an accounting and settlement of the estate.

(Reported below, 3 Hun, 685; 6 T. & C., 164.) This action was brought to recover a balance alleged to be due and unpaid upon a contract executed by and between plaintiff and the commissioners of public works in the city of New York. The nature of the contract and the facts pertinent to the questions discussed are sufficiently set forth in the opinion.» The contract was valid and binding on the defendants.

Court in the first judicial department, reversing an order granting a motion to dismiss the complaint on tidal. (Eeported. below, 4 Hun, 525.) This action was brought against defendant as executrix of the last will and testament of James Fisk, Jr., deceased, to-enforce an undertaking signed by him. Plaintiff recovered a judgment in the Supreme Court in November, 1867, against one William Belden.

<p>A judgment in an action for an accounting between partners, requiring the payment of a specified sum of money by one of the parties to a receiver, may be docketed in favor of the receiver and be enforced by execution.</p> <p>An action, based upon the judgment, brought to set aside conveyances of real estate made by the party so charged as in fraud of creditors, and to reach his real estate and equitable assets, cannot be maintained without first docketing such judgment and issuing execution thereon.</p> <p>There is no distinction in this respect between judgments for the payment of money in legal and in equitable actions. ' In either case a suit in equity to enforce the judgment cannot be maintained until the statutory remedy by execution is exhausted.</p>

(Reported below, 8 J. & S., 24.) This action was brought against defendant, as sheriff of the city and county of NTew York, to recover damages for not returning three executions issued to him upon judgments in favor of plaintiff.

(Reported below, 5 Daly, 361.) The nature of the action and the facts are sufficiently set forth in the opinion. Costs should be given to the defendants. (Code, § 385; Sturges v. Spofford, 58 N. Y., 103 ; Bredinbecker v. Mason, 16 How.

in the third judicial department, affirming an order directing Isaac B. Findull, a purchaser, to complete his purchase, (Reported below, 4 Hun, 800.) This was an action for the foreclosure of a mortgage. Judgment of foreclosure and sale was perfected.

<p>Error to the General Term, of the Supreme Court in the fourth judicial department, to review judgment affirming a judgment of the Court of Sessions in and for the county of Monroe, entered upon "a verdict convicting plaintiff in error of a misdemeanor.</p> <p>Plaintiff in error was indicted for a violation of the excise law (§ 21, chap. 628, Laws of 1857, as amended by § 5, chap. 549, Laws of 1873), in having sold “ intoxicating liquors and wines ” on Sunday.</p> <p>The facts appear sufficiently in the opinion.</p> <p>Whether lager beer was intoxicating was a question of fact. (21 N. Y., 173; 6 Park. Cr. R., 355.) Courts cannot take judicial notice that lager beer is intoxicating. (24 How., 289.)</p> <p>The question, whether lager beer was an intoxicating liquor, was fairly submitted to the jury. (3 Den., 437; 21 N. Y, 174; 3 Park. Cr. R., 174; 6 id., 355.)</p>

<p>An assignee or receiver in bankruptcy of an insolvent railroad corporation, who, as such assignee, is running and operating its road, in the absence of evidence that he assumed to act other than as assignee, or that he held himself out as a carrier of passengers other than as an officer of the court, is not liable iu an action for negligence causing the death of a passenger where no personal neglect is imputed to him either in the selection of agents or in the performance of any duty, but where the negligence charged was that of a subordinate whom he necessarily and properly employed in compliance with the order of the court. (Church, Oh. J., dissenting.)</p> <p>Rogers v. Wheeler (43 N. Y., 598); Sprague v. Smith (39 Vt, 431); Barter v. Wheeler (49 N. H., 9); Ferrin v. Myrick (41 N. Y., 315); Ballou v. Farnum (9 Allen, 47); La/mphearv. Buckingham (33 Conn., 337); Blumenthall v. Brainerd (38 Vt., 403); Paige v. Smith (99 Mass., 395) distinguished.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, vacating and setting aside an assessment for the expense of opening and extending an alley through a block in the city of Syracuse, the proceedings in reference whereto were brought up for review by certiorari. (Reported below, 2 Hun, 433.)</p> <p>Three commissioners were appointed to award damages and assess the expenses of the improvement, as prescribed by the city charter. A former assessment was set aside upon certiorari, and before the reassessment one of the commissioners died. The surviving commissioners went on and completed the assessment. No portion of the expense was assessed upon, the city. Due notice was published of a meeting of the commissioners to hear objections, at which time parties appeared and filed objections. These were overruled by the commissioners, who signed the assessments and filed the same with the clerk of the city. The relators appealed to the common council, who affirmed the assessment. On the hearing before the commissioners .it was admitted by them, and reduced to writing as a part of the proceedings, as follows :</p> <p>“ First. That said Harmon W. Van Burén (one of the commissioners), was, during all the time that proceedings were had relating to the opéning and extending of said alley, down to the time of said hearing, a trustee of the First Presbyterian church, in the city of Syracuse.</p> <p>“ Second. That said Presbyterian church holds it land in fee simple with the usual power of alienation.</p> <p>“ Third. That the 106 feet of land fronting on Salina street, belonging to said Presbyterian church and included in said assessment, is worth, exclusive of erections, as much or more by the front foot as an equal number of feet adjoining it on the south. '</p> <p>“ Fourth. That in making the assessment upon the property belonging to the said Presbyterian church at §600, and then upon the property of H. A. Dillaye, immediately south of the same, at $1,124, said Dillaye’s property being twenty-six feet front on Salina street, the assessors took into account the fact that the first was used for church purposes only, and the latter for commercial purposes only, as well as the fact that the said church had a frontage on Fayette street as well as on Salina street, and was thereby less benefited by said improvement, and that said alley was not needed for access to the church itself. That they also took into account in said assessment, that this improvement removed from said Dillaye’s property, and the property of others adjoining him on the south, an extensive barn building, and stable, which was in dangerous proximity to said property, and that said pieces of property were assessed by them as they deemed the same respectively benefited by said improvement.”</p> <p>It was for the commissioners to determine whether the city should be assessed. (Laws 1857, chap. 63, § 4, title 8.) When the principle upon which an assessment is made is correct, it will not be disturbed on account of the quantum, of the assessment. (Ex parte Mayor, etc., of Albany, 23 Wend., 277.) It was not error for the commissioners to consider, in making the assessment, that part of the property was used for the purpose of a church and not for business purposes. (In re Mayor of N. Y., 11 J. R., 77; 11 Wend., 149; Ex parte Mayor, etc., of Albany, 23 id., 277.) The fact that one of the commissioners was a trustee of a corporation liable to be assessed for benefits, did not disqualify him. (People v. Wheeler, 21 N. Y., 82; In re S. Seventh, St., 38 Barb., 15, 17.) One of the commissioners having died the survivors possessed all the powers of the three and had power to make the reassessment. (Laws 1857, chap. 63, §§ 2, 3, title 8 ; Downing v. Rugar, 21 Wend., 178 ; People v. Palmer, 52 N. Y., 84, 88 ; Cruger v. H. R. R. R. Co., 12 id., 197; Horton v. Garrison, 23 Barb., 176; 3 R. S., 27, § 133 ; Laws 1874, chap. 321.) .</p> <p>The proceedings should be set aside because no assessment was made on the city". (In re Turflee, 44 Barb., 46 ; Le Roy v. Mayor, 20 J. R., 430.) It was error for the commissioners to consider the use to which the houses and lots were devoted. (Canal Bk. v. Mayor of Albany, 9 Wend., 244, 257; In re Furman St., 17 id., 649; In re Albany St., 11 id., 153 ; In re William St., 19 id., 691; In re Mayor, etc., 11 J. R., 77.) It was error to consider, in estimating the assessment, the removal of the barn building and stable. (Alb. N. R. R. v. Lansing, 16 Barb., 68; W. and R. R. R. Co. v. Sanftee, 60 Penn. St., 374; Sedg. on Meas, of Dam., 718.) The reassessment is void because the vacancy occasioned by the death of one of the commissioners was not filled before making it. (3 R. S., § 27, title 17, chap. 8; People ex rel. Henry v. Nostrand, 46 N. Y., 375; People ex rel. Moran v. Mayor, etc., 5 Barb., 43; Lambeer v. City of N. Y., 4 Sandf., 109; Keeler v. Frost, 22 Barb., 400.) One of the commissioners being a trustee of a corporation assessed was disqualified. (Hopkins v. M., 42 How., 115; People v. Cline, 23 Barb., 197; Langley v. City of Hudson, 4 N. Y. S. C., 353.)</p>

This action was brought by plaintiffs, as executors of Jesse Thomson, deceased, to enforce an alleged lien for the purchase money under a contract for the sale of certain premises made between plaintiffs’ testator, as vendor, and defendants, as vendees.

(Reported below, 2 T. & 0., 360.) The highway in question terminated in another; from a point fourteen chains forty-seven links, it ran obliquely across the farm of the applicant for the alteration. The order appealed from changed the route from said point, so that the road would run on the line of lots, and enter the other road at right angles, thereby shortening the distance to thirteen chains.

Appeal of A. F. Smith, from order of the General Term of the Supreme Court, in the second judicial department, affirming an order of Special Term, overruling exceptions, and confirming the report of a referee. This action was brought to foreclose a mortgage executed by defendant, The Monticello and Port Jervis Railway Company, to plaintiff, as trustée, to secure the payment of 500 coupon bonds of $1,000 each, with interest. The facts sufficiently appear in the opinion.

” (Reported below, 4 Hun, 577.) The complaint contained three counts. The first was for moneys advanced and paid out for defendant’s benefit; the second for services from January 1 to August 15,1874, alleged to be reasonably worth $1,875; the third for moneys paid out and advanced by plaintiff, at defendant’s request, for the support and maintenance of defendant’s son. The answer denied the indebtedness.

These were motions to vacate orders entered under rule 7, dismissing the appeal. (Reported below, 8 J. & S., 541.) The facts appear sufficiently in the opinion.

<p>Appeal from a judgment of the General Term of the Supreme Court, in the first judicial department, affirming a judgment in favor of defendant, entered upon an order sustaining demurrer to plaintiffs’ complaint. (Reported below, 4 Hun, 627.)</p> <p>The complaint in the action alleged in substance, among other things, that an act was passed by the Legislature April 30, 1873, by its terms abolishing the board of assistant aider-men of the city of New York. (Chap. 335, Laws of 1873.) That an act amending said act was passed June 13, 1873, declaring that the aldermen in said city should be elected on the principle of minority representation, no elector being permitted to vote for the full number of aldermen, which acts were alleged to be unconstitutional and void. That plaintiffs (two in number), at the annual election in Hovember, 1874, offered themselves as candidates for the office of assistant aldermen in their respective districts, and received votes for such office, which were duly received, counted and returned, and that they received all the votes cast in their districts, and thereby were duly elected. That plaintiffs qualified and took and filed their oath of office. That on the 1st day of January, 1875, they went to the hall of the board of assistant aldermen in said city, for the purpose of organizing said board, and were informed and believed that the electors of the other nineteen districts had neglected to elect assistant aldermen, and by reason thereof there was no quorum, and plaintiffs were unable to organize the board, notice of which fact was served on defendant, the mayor of the city, with a demand that he call a special election to fill the vacancies, and refrain from recognizing the board of aldermen as the common council. That plaintiffs again met and were refused admission to said hall. That on the first Monday of January, 1875, twenty-two persons, claiming to have been elected aldermen, met in the hall of the board of aldermen, and organized as the common council, usurping the rights and franchises of the board of assistant aldermen. That defendant recognized said illegal body as the common council, and intends to recognize and give force to their acts and ordinances as such. Plaintiffs demanded judgment, that defendant as mayor, his successors, etc., be restrained from recognizing said illegally constituted board of aldermen as the common council. That said acts of 1873 be declared unconstitutional, and the election of aldermen thereunder illegal and void. That defendant notify the proper officer, so that a special election be called to elect aldermen and assistant aldermen to fill the vacancies, etc.</p> <p>Defendant demurred, on the ground that the complaint did not state facts sufficient to constitute a cause of action.</p> <p>The question as to the want of parties, the form of the action or the want of jurisdiction cannot be raised under this demurrer and was waived. (Loomis v. Tift, 16 Barb., 541; 53 id., 238; Blossom v. Barrett, 37 N. Y., 434; 12 How., 547; Wilson v. Mayor, 4 E. D. S., 706, n. ; 7 Abb., 134; Bk., etc., v. Mayor, 20 N. Y., 355; Mossleman v. Poleart, 34 Barb., 66; Fult. F. Ins. Co. v. Baldwin, 37 N. Y., 651; People v. Mayor, 8 Abb., 19; 28 Barb., 240; Gen. Mut. Ins. Co. v. Benson, 5 Duer, 168; Stuyvesant v. Mayor, 11 Paige, 415; Emery v. Pease, 20 N. Y., 62.) Plaintiffs are properly in court. (Ex parte Heath, 3 Hill, 42; Doolittle v. Suprs., etc., 18 N. Y., 162.) The equity remedy prayed for extends to all acts contrary to law and prejudicial to the community and destructive of the private rights of individuals and for which there is no adequate remedy at law. (Hartwell v. Armstrong, 19 Barb., 175; Kerr v. Trego, 47 Pa. St., 292; 30 id., 9 ; Brightley’s Election Cases, 573, 641; Benson v. Mayor, 10 Barb., 226; Elmendorf v. Mayor, 25 Wend., 693 ; Mott v. R. R. Co., 6 Casey, 9; People v. Suprs., 15 Wend., 198; Roosevelt v. Draper, 23 N. Y., 318; People v. Mayor, 32 Barb., 102 ; Stuyvesant v. Pearsall, 15 id., 244; Milhau v. Sharp, 17 id., 435; 28 id., 228; People v. Stevens, 5 Hill, 629; Dillon on Mun. Corp., § 213; Morgan v. Quackenbush, 22 Barb., 7, 280; Doolittle v. Suprs., 18 N. Y., 155 ; People ex rel. v. Albertson, 55 id., 56, 67; Warner v. People, 2 Den., 272; 1 Cow., 550.)</p> <p>The rights of plaintiffs to the offices claimed by them could not be determined in this action. (Mott v. Connolly, 50 Barb., 516; People ex rel. Dolan v. Lane, 55 N. Y., 217.)</p>

-railroad act, as amended in 1869. (Chap. 237, Laws of 1869.) (Reported below, 5 Hun, 201.) The purpose for which the land in question was required, as stated in the petition, was for the purposes of the petitioner’s incorporation, and for the purpose of running and operating its railroad, “for tracks, switches and sidings, whereby and whereon cars may be moved to the adjacent lands ” of the petitioner, “ and be loaded and unloaded and stored.” It appeared that the…

(Reported below, 3 Hun, 639.) This action was brought upon a contract between defendant and the Hanover Wood Preserving Pavement Company, plaintiff’s assignors, by which said company contracted to regulate and pave One Hundred and Twenty-eighth street in ' the city of New York.

- Appeal from order of the General Term of the Court of' Common Pleas for the city and county of New York, affirm-1 ing an order of Special Term 'granting a motion for leave to bring an action upon a bond.' The bond in question was executed by defendants’ testator,! together with a mortgage upon real estate in New York city,! to secure the same. An action was brought to foreclose the mortgage.

(Reported below, 4 Hun, 798.) The claim upon which the award was made was for damages alleged to have been done to claimant’s property prior to 1858 in the construction, alteration and repairing of the Oswego canal. It was presented under the act chapter 321, Laws of 1870, and within the time prescribed by said act. The objections to the payment of the award, and the facts pertinent thereto, are sufficiently stated in the opinion.

<p>By the amended charter of the city of New York of 1870 (§ 116, chap. 137, Laws of 1870), as amended in 1871 (§ 9, chap. 574, Laws of 1871), power to appoint appraisers'to appraise the value of the property of the city was conferred upon the commissioners of the sinking fund, and it was in their discretion to determine when an appraisal was necessary.</p> <p>The validity of the appointment of appraisers, or their right to compensation for services performed in good faith under the appointment, is not affected by the question as to whether an appraisal was proper or was directed from a proper motive.</p> <p>The expense of an appraisal directed by the commissioners is not within the prohibition of the act of 1871 (§ 101, chap. 137, Laws of 1871), forbidding the incurring of any expense by any of the departments or officers thereof without an appropriation previously made covering it.</p> <p>Where, therefore, appraisers were appointed by the commissioners under said charter to appraise the value of all the real estate of the city and county, held, that so far as they rendered services for which the commissioners within their apparent authority might have occasion, the city corporation was liable.</p> <p>The resolution adopted by the commissioners appointed plaintiff and others as appraisers and directed the clerk to notify them of their appointment, “the comptroller first making satisfactory arrangements with them as to their fees.” The appointees agreed not to claim the usual compensation and the comptroller promised that the compensation should be satisfactory and liberal, and thereupon the appraisers were permitted and directed to proceed. Held, that this was a sufficient compliance with the condition of the resolution; that the agreement was, in substance, to pay the appraisers what their services should be reasonably worth, to be ascertained in case of disagreement by the proper tribunal in the usual manner; that whether the just inference from the language of the agreement and the circumstances was that it was" intended to submit the whole subject of compensation to the comptroller was one of fact for the jury, and a refusal to submit it to them was error.</p> <p>Plaintiff wrote a letter conceding that he did agree to leave the question of compensation entirely with the comptroller, and offering to leave it to the deputy (then acting) comptroller. This offer was not acted upon. Held, that plaintiff was not estopped by the letter, which was simply evidence upon the question as to what was the agreement.</p>

This action was for fraud. The foreman of the jury announced as their verdict a general verdict in favor of plaintiff against both defendants, and it was so entered. Upon application, made upon the same day to the judge holding the Circuit, on behalf of defendant Williams, an order to show cause at a day specified, during the same Circuit, why the verdict should not be corrected was granted.

(Reported below, 4 Hun, 549.) This action was brought to recover damages alleged to have been sustained by plaintiff by reason of his having been prevented, from fully performing a contract made between him and the school officers of the eighth ward of the city of New York. Plaintiff contracted to do the carpenter work required for a public school building in said ward, the work to be completed on or before November 1, 1863.

(Reported below, 5 Daly, 327; • sub nomine Quincey v. Young et al.) This action was brought to recover balance alleged to be due upon an account of certain stock transactions conducted by plaintiff’s firm, William Heath & Co., on joint account of defendants. The facts sufficiently appear in the opinion. The finding of a fact essential to the maintenance of the judgment, without any evidence to support it, is an error of law.

This action was brought upon a bond which contained no recitals.

The facts appear sufficiently in the opinion. The relator, upon the hearing before the referees, had the right to show that the commissioners had no jurisdiction to lay out the highway.

<p>Appeal from an order of the General Term of the Supreme Court in the second judicial department, reversing a judgment in favor of defendant entered upon the report of a referee.</p> <p>This action was brought for an alleged breach of a covenant .against incumbrances contained in a deed from defendant to plaintiffs of certain premises situate in Westchester county.</p> <p>The facts sufficiently appear in the opinion. The referee decided that there was no breach of the covenant proved, and directed judgment dismissing the complaint. Judgment was entered accordingly.</p> <p>JN o tax or assessment becomes a lien or incumbrance upon real estate until the amount is ascertained and determined. (Dowdney v. Mayor, etc., 54 N. Y., 186; Kerr v. Tousley, 46 Barb., 150; Maurice v. Millen, 26 id., 41.)</p> <p>The assessment was an incumbrance upon the farm at the time of the conveyance. (Rundell v. Lakey, 40 N. Y., 513; Edwards v. Coggswell, 1 N. Y. S. C., 416.)</p>

(Reported below, á Hun, 783.) This action was brought by plaintiff, as administrator of one Birt Cushman, deceased, upon a policy of life insurance issued by the defendant on the life of said Birt Cushman.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming a judgment in favor of defendant entered upon a decision of the court dismissing plaintiff’s complaint, and affirming an order denying a motion for a new trial of certain issues submitted to a jm7-</p> <p>The action was brought by plaintiff!, as the heir at law and next of kin of John Banker, deceased, to annul a marriage between the deceased and defendant, on the ground that said John Banker was, at the time of the marriage, a lunatic; also to restrain defendant from taking out letters of administration.</p> <p>It appeared that defendant and said John Banker were married March 8'th, 1869. In February, 1869, proceedings under the statute, in the nature of a writ de lunático mquirendo, were instituted to inquire concerning the lunacy of said John Banker. By the inquisition therein taken on March 10th, 1869, it was found that said Banker was a “ lunatic and of unsound mind,” and had been for six months prior thereto. Evidence was given tending to show that defendant had notice of these proceedings at the time of the marriage.</p> <p>Certain questions of fact were submitted to the jury:</p> <p>“First. On the 8th of March, 1869, was John Banker a person of unsound mind ?</p> <p>“ Second. Did the said John Banker, at any time after his marriage; have a lucid interval; and in such lucid interval did he recognize and affirm, by cohabitation or otherwise, his said marriage with the defendant, he having been fully advised of the same?</p> <p>“Third. Was the said John Banker, at the time of his^ death, of unsound mind ?</p> <p>“ Fourth. Did the defendant, before her marriage, have actual notice of the lunacy proceedings? ”</p> <p>The court charged, among other things, that plaintiff “ must show undoubted unsoundness at the time of marriage, continuing, beyond question, down to death without lucid intervals.” To which plaintiff’s counsel duly excepted.</p> <p>Plaintiff’s counsel requested the court to charge, among other tilings, “ that in this case the jury start with the presumption that Mr. Banker was of unsound mind at the time of the marriage, and the burden of proof is on the defendant to show that he was of sound mind at that time.” The court declined so to charge, and plaintiff’s counsel duly excepted.</p> <p>The jury answered the first question “ no,” the second “yes,” the third “no ” and the fourth “yes.”</p> <p>The court adopted these findings, and thereupon directed a dismissal of the complaint. Judgment was entered accordingly. Further facts appear in the opinion.</p> <p>The court erred in refusing to charge that the inquisition changed the rule in respect to presumption of sanity, and that the jury started with the presumption that Mr. Banker was of unsound mind. (Demelt v. Leonard, 19 How, Pr., 141; Goodell v. Herrington, 3 N. Y. S. C., 345.) The petition having been filed, the commission issued, and defendant having had actual notice of the proceedings at and before her marriage, the court erred in dismissing the complaint. (2 R. S., 138, § 1; Clayton v. Wardell, 4 N. Y., 230; Bish. on Mar. and Div., §§ 178,179; Browning v. Rease, 2 Phil., 69; 2 Kent’s Com., 76, 77; Wadsworth v. Sharp, 8 N. Y., 388; Fitzhugh v. Wilcox, 12 Barb., 383; L'Amoreaux v. Crosby, 2 Paige, 427; 1 Story Eq. Jur., §§ 405-407; 1 J. Ch., 575; Murray v. Ballou, 2 id., 70; 1 id., 300; Griswold v. Miller, 15 Barb., 521; Lanc. Co. Bk v. Moore, 12 L. J., 182.)</p> <p>The inquisition was only presumptive evidence of the facts it contained in respect to the insanity of Mr. Banker. ( Van Deusen v. Sweet, 51 N. Y., 378, 386 ; Wadsworth v. Sharpstein, 8 id., 388; Lewis v. Jones, 50 Barb., 669; Fitshugh v. Wilcox, 12 id., 238; Wadsworth v. Sherman, 14 id., 171; Osterhout v. Shoemaker, 3 Hill, 516; L'Amoreux v. Crosby, 2 Paige, 426; Hoyt v. Adee, 3 Lans., 173; Jackson v. Gumaer, 2 Cow., 568; 2 Kent’s Com., 450; Wil. Eq. Jur., 200; 2 Phil. Ev., 266.) Defendant is not estopped or concluded by the inquisition by reason of her having had notice of the proceedings before her marriage. (Lewis v. Jones, 50 Barb., 645, 669; Wil. Eq. Jur., 200; Wadsworth v. Sharpstein, 8 N. Y., 393.)</p>

(Reported below, 4 Hun, 176 ; 6 T. & 0., 405.) This action was brought originally in the name of Henry Peck, plaintiff’s testator, to recover damages for injuries alleged to have been sustained by said Peck in consequence of being unlawfully ejected by the conductor from one of defendant’s cars, in which he was riding as a passenger.

<p>The provision of the general act providing for the incorporation of manufacturing and other corporations (§ 13, chap. 40, Laws of 1848), forbidding the declaring and paying a dividend by the trustees of a corporation organized under it which shall diminish its capital stock, and imposing a penalty for the violation of said provision, takes the cases of such corporations out of the rale of the Revised Statutes upon that subject (1 R., 601, § 2), and as to them prescribes the only penalty recoverable for such violation, and the only persons who may sue therefor.</p> <p>Accordingly, held, that an action could not be maintained under the statutes by the corporation against trustees for declaring such a dividend.</p> <p>An action at common law cannot be maintained by the corporation where the trustees acted in good faith, and no question of negligence is raised.</p> <p>The complaint in such an action alleged fraud and false representations oni the part of the trustees. Reld, that as a legal capacity to sue might thus have been made to appear on the face of the complaint, it was not necessary for defendants to demur in order to raise the question.</p> <p>Also, held, that defendants were not bound by the decision in another action brought by plaintiff against other trustees in which defendants did demur and the decision was against them.</p>

The nature of the action *and the material facts are stated in the opinion. The oral and written statements of the defendants were continuing representations to induce a series of acceptances on an open loan, and the renewals were given on the faith of their truth.

(Reported below, 1 Hun, 499; 3 T. & 0., 640.) This action was brought by plaintiff as judgment creditor of defendant Russell B. Mallory, to set aside a deed from the latter to his son, the defendant, Fred. E. Mallory, of certain premises in Schuyler county, as fraudulent against creditors of the grantor.

This action was brought against defendant as one of the heirs at law and next of kin of Ditmas Duryea, deceased, to recover the shares of the real and personal estate received by him to be applied upon an alleged claim of plaintiff against the estate.

This action was brought to recover the sum of $1,500 alleged to have been earned as commissions agreed upon between the parties in effecting a sale of certain patent interests owned by defendant.

(Reported below, 5 Hun, 3.) This action was brought to recover damages for the alleged negligent killing of Willis Parker, plaintiff’s intestate. The deceased, at the time of the accident, was a freight conductor in defendant’s employ, and was in charge of a freight train going east from Buffalo. Arriving at Attica, the train stopped at the west end of the station, and Parker left the train and went into the depot. The train started up.

This action was brought to recover back money alleged to have been paid to defendant by mistake. Plaintiff was the owner of lot No. 28, in block 98, fronting on Fifty-first street, in the city of New York. Said lot was assessed for the expense of paving said street. An assessment was also made at the same time'upon the adjoining lot, No. 27, which was owned by another person.

This action was brought to recover a deoosit made in defendant’s bank by James Devine, plaintiff’s intestate. The facts sufficiently appear in the opinion of Earl, J. The administratrix was authorized to demand the deposit of defendant, and her receipt was a valid discharge.

This action was brought to foreclose a mechanic’s lien upon certain premises in the city of Brooklyn. Defendant Badeau being the owner of certain lots in the city of Brooklyn contracted to sell the same to William H. Duryea, the latter agreeing forthwith to commence the erection of a block of stores and of dwelling-houses thereon.

<p>Where an agent, pursuant to instructions of Ms principal, delivers to a common carrier moneys of the principal consigned to and to be transported to him, the consignor, from the time of the delivery, ceases to have any title to or interest therein, and cannot maintain an action against the carrier therefor.</p> <p>It is immaterial whether the moneys so delivered were the identical moneys of the principal, or whether other moneys were substituted; by the delivery they became the property of the consignee.</p> <p>The fact that the moneys were the fruits of a fraud perpetrated by the ■ principal through the instrumentality of the agent, although the latter was innocent of the fraud, gives him no title to the moneys which will authorize him to maintain the action.</p>

<p>Plaintiff purchased of the executors of L. and of one B., who were ten ants in common, certain lands through which ran a stream known as Otter creek. The grantors also owned a lot called “the tannery lot” upon the stream below the lands conveyed, and the executors alone owned a tract below this, which was thereafter conveyed to defendant, and still below plaintiff owned a saw-mill. The deed to plaintiff contained a clause giving plaintiff “the right to use the stream called Otter creek that runs through the tannery lot for the purpose of floating logs, timbers, * * * and to improve and deepen the said stream, and also to make a canal through said lot.” Plaintiff, after the conveyance to him, expended considerable sums in improvements upon the stream, mostly upon that portion passing through the tract conveyed to defendant, a portion of the imnrovements being made before the latter took title. Plaintiff claimed under his deed an exclusive right to the use of the stream through defendant’s tract. Held, that the deed conveyed only the lands and rights owned by all the grantors as tenants in common; and that the clause giving the right to the use of the stream did not apply to premises owned by the executors alone, hut was limited to “the tannery lot.” Also, held, that in the absence of proof that plaintiff claimed the exclusive right to the use of the stream, defendant was not estopped from denying it on account of permitting the improvements.</p> <p>Plaintiff offered to prove a license signed by one of the executors of L., allowing him to cut timber on the tract below the tannery lot to improve the stream, which was rejected. Held, no error; that it would not have strengthened plaintiff’s title, as it did not purport to convey any exclusive right to the use of the stream, and was not inconsistent with the absence of such right; also, as it was only executed by one of the executors.</p> <p>By an act of the legislature (chap. 273, Laws of 1872) the creek was made a public highway, and provision was'made for assessing and paying the damages of “ the riparian owners.” Held, that even if plaintiff’s deed gave Mm the exclusive right claimed, he was entitled to compensation therefor under the provisions of the act, and his right was superseded thereby.</p>

The complaint in this action alleged, in substance, that plaintiff was the owner of certain premises in the village of Yonkers. That defendant, by its board of trustees, caused an assessment to be levied thereon for improving a street, and have caused the property to be sold for the assessment.

The said James Murdock, who was a citizen and domiciled in the city of New York, died in that city June 10, 1869, seized of personal property in that city and certain real estate in Charleston, S. C., and irul-reland, and leaving a last will and testament executed in Ireland July 7,1868, of which the material portion is as follows: “I, James Murdock, at present of Ballyclare, county Antrim, Ireland, being about to travel, do hereby make this, my last will and testament, as…

(Reported below, 3 Hun, 121; 5 T. & 0., 425.) The facts sufficiently appear in the opinion. The testator sufficiently signified to the witnesses the character of the instruments, and his purpose to execute them as his will. (Beldiny v. Leichardt, 56 N. Y., 680; In re Kelum, 52 id., 577.) The testator was mentally qualified to execute a will. (Delafield v. Parish, 25 N. Y., 9, 69, 97.) There was no evidence that the testator was unduly influenced.

On the 13th day of March, 1871, defendant was running a train on a track belonging to the Rensselaer and Saratoga Railroad Company in the city of Albany. Plaintiff was driving a pair of horses attached to a lumber wagon upon Colonie street in said city, which is crossed by said track. As he was crossing the track the wagon was struck by said train and plaintiff was injured.

This action was upon a policy of insurance issued by the defendant for $2,500 upon the plaintiff’s stock of goods, consisting of hardware, cutlery, crockery, etc. There was other insurance upon the property to the amount of $7,000 in four other companies. The fire took place on the 24th of November, 1870. Part of the stock was saved in a damaged condition.

(Reported below, 5 Hun, 190.) The nature of the action and the material facts are set forth sufficiently in the opinion. It was not necessary to the validity of the contract that it should be authorized by an ordinance of the common council. (1 Laws 1870, 384; 2 Laws 1866, 1193, chap. 551; Laws 1865, 717; Green v. Mayor, Ct. Apps., March, 1875 ;* People v. Van Nort, 64 Barb., 205; In re Eager, 12 Abb.

Appeals by both parties from a judgment of tho General Term of the Superior Court of the cLy of ¡New York, affirming a judgment entered upon a decision of the court at Special Term.

<p>: Appeal from judgment of the General Term of the Supreme Court in the third judicial; department in favor of plaintiff, entered upon an order denying a motion for a new trial, and directing judgment upon a verdict.</p> <p>; This aption was brought to recover damages for injuries alleged to have been sustained by plaintiff while attempting to alight from a train upon defendant’s road at the depot at Deposit. According to plaintiff’s evidence, the train stopped a moment at the station, but before plaintiff could get out to the platform of the car it started. Plaintiff had a band-box and satchel in her hands; she requested a Mr. Bowen to assist her to alight; he attempted to do so, but both fell to the ground and she was injured. There was a notice posted in the car “ that passengers must not get on or off the cars while in motion.” - This she read a few minutes before she attempted to alight. At the close of plaintiff’s evidence, and at the close of all the evidence, defendant’s counsel moved for a nonsuit on the grounds, among others, that plaintiff was chargeable with contributory negligence, and that as Mr. Bowen was acting for plaintiff at her request, his negligence or carelessness contributing to the injury was her negligence. The motion was denied, and defendant’s counsel duly excepted.</p> <p>Plaintiff was guilty of contributory negligence. (Gavett v. M. and L. R. Co., 16 Gray, 501; Morrison v. Erie R. Co., 56 N. Y., 302 ; Lucas v. T. and N. B. R. Co., 6 Gray, 64, 71; Hickey v. B. and L. R. Co., 14 Al, 432, 433.) Plaintiff, in order to recover, was bound to establish affirmatively that she was guilty of no negligence that contributed to the injury. (Wilds v. H. R. R. R. Co., 24 N. Y., 430, 432; Deyo v. N. Y. C. R. R. Co., 34 id., 9 ; 91 C. L. .R., 146; 7 Robt., 116 ; Damont v. N. O. R. R. Co., La. Ann., 441; R. R. Co. v. Aspell, 23 Penn., 147, 149, 151, 152 ; Guinon v. N. Y. and H. R. R. Co., 3 Robt., 25, 31, 32; Nichols v. Sixth Ave. R. R. Co., 38 N. Y., 133-135.)</p> <p>A carrier of passengers is bound to observe its established and advertised regulations for stopping, and the passenger is supposed to take passage with an understanding from which the law implies an agreement entitling him to the accommodations offered. (2 R. S., 687, § 42; Edw. on Bailments, 600; Ang. on Carrs., § 533 ; Story on Bailments, 796; T. W. and W. R. R. Co. v. Bradley, 5 Am. R., 71; 54 Ill., 19.) There was no contributory negligence on the part of plaintiff. (Johnson v. H. R. R. R. Co., 20 N. Y., 65 ; Newson v. N. Y. C. R. R. Co., 29 id., 383 ; Filer v. N. Y. C. R. R. Co., 49 id., 47; Ernst v. H. R. R. R. Co., 35 id., 27; Nichols v. Sixth Ave. R. R. Co., 38 id., 131; Wylde v. No. R. R. Co. of N. J., 53 id., 161; Clark v. Kernan, 4 E. D. S., 21; Hulbert v. N. Y. C. R. R. Co., 40 N. Y., 146 ; 36 id., 39 ; Ill. C. R. R. Co. v. Abell, 5 Alb. L. J., 267; C. and Ad. R. R. Co. v. Randolph, 5 Am. R., 60; 53 Ill., 510.). The question of negligence was properly submitted to the jury. ( Wolfkiel v. Sixth Ave. R. R. Co., 38 N. Y., 49; Nichols v. Sixth Ave. R. R. Co., id., 131; Ernst v. II. R. R. R. Co., 35 id., 10; 39 id., 68; 6 Alb. L. J., 210 ; Filer v. N. Y. C. R. R. Co., 49 N. Y., 50 ; Wylde .v. No. R. R. Co. of N. J., 53 id., 160 ; Barton v. R. R. Co., 3 Am. Railway R., 482; Eaton v. R. R. Co., 51 N. Y., 544; 58 id., 455 ; Dickens v. N. Y. C. R. R. Co., 1 Keyes, 23.)</p>

<p>.Plaintiff leased of defendant a hotel in the city of Hew York and certain adjoining premises, defendant covenanting to tear down the old building and to erect a new building on the adjoining premises to be used in connection with the hotel, the new building to be completed and plaintiff put in possession by a specified time. Plaintiff was then occupying the hotel and a building upon a portion of the adjoining premises under a former lease. He removed the furniture from the rooms in said building and stored it while the new building was being erected. Defendant failed to complete said new building within the time specified. In an action to recover damages for breach of the covenant, held, that plaintiff was entitled to recover the rental value of the use, for hotel purposes, of the rooms in the new building during the time he was deprived of the use thereof by defendant’s default, and as to such of the rooms for which plaintiff had the furniture, he was entitled to the value of their use as furnished rooms.</p> <p>Where a landlord covenants in his lease to make certain repairs, in case of a breach of the covenant the tenant may make the repairs and charge the expense to the landlord, but he is not boun1 so to do, and may recover as damages for the breach the value of the use of any portion of the premises during the time it is rendered untenantable because of failure to make the repairs.</p>

The action was brought to recover damages resulting from an alleged nuisance, and to restrain the continuance thereof.

(Reported below, 7 J. & S., 159.) This was an action to recover the purchase-price of a wagon alleged to have been sold and delivered by plaintiffs to defendant. . The only witness sworn upon the trial, was plaintiffs’ salesman, who testified, in substance, that defendant called at plaintiffs’ warerooms in New York, selected a wagon, and agreed to pay therefor the sum of $475, and that the wagon ' was delivered at a stable where defendant directed it to be delivered.

<p>Error to the General Term of the Supreme Court in the second judicial department, affirming a judgment of the Court of Oyer and Terminer in and for the county of Rockland, entered upen a verdict convicting the plaintiff in error of the crime of murder in the first degree. (Reported below, 4 Hun, 102.)</p> <p>The facts appear sufficiently in the opinion.</p> <p>Parol evidence of the contents of the written complaint in the three suits against the prisoner was improperly received. (Greenl. on Ev., § 88, 82; Passon v. Brown, 11 J. R., 166; Grimm v. Hammell, 2 Hilt., 434; Rex v. Doran, 1 Esp., 127; Rex v. Gibson, R. & R. Cr. Cas., 138, 139; Monthly Law Mag., 71-76; 23 L. Obs., 20; Hart v. Yunt, 1 Watts, 253; Sebreer v. Dorn, 9 Wheat., 558; Berrian v. Sanford, 4 N. Y. S. C. R., 688.) The admission of evidence as to the statement made by the prisoner was error. (People v. McMahon, 15 N. Y., 384.) The prosecution was bound to present evidence so convincing as to exclude the possibility that another had committed the crime. (F. and M. Bk. v. Winfield, 24 Wend., 426 ; Myers v. Malcolm, 6 Hill, 296; Dresser v. Ainsworth, 9 Barb., 619; Anthoine v. Coit, 2 Hall, 40.)</p>

This action was brought to recover the proceeds of sales of goods alleged to have been shipped by plaintiff at Savannah to defendants, commission merchants in New York, to be sold by them on plaintiff’s account.

This action was brought to foreclose a mortgage held by plaintiffs as trustees for certain bondholders, upon lands of defendant, “The East Side Association of the CityofRew York,” a corporation chartered by chapter 762, Laws of 1868. The complaint alleged that defendant Kilpatrick held a lien upon the premises which was subject to the lien of plaintiffs’ mortgage. It appeared he held $3,000 of the building stock of the association.

This was an action for fraud. The decision upon a former appeal is reported in 45 N. Y., 1J5. tlpon the last trial, the referee found that the alleged fraudulent statements were made in good faith; defendant believing them to be true. The General Term reversed the decision. (See 4 Hun, 665.) A majority of the court, while agreeing in result, did not concur in the reasons stated in opinion for reversal of order of General Term. It is, therefore, not reported.

This action was brought upon two promissory notes executed by defendant, a married woman, as maker, made payable to the order of her… Held: error; that the presumption was that the notes were nullities, and no implication, presumption or impression that she was to be benefited by them in her business or estate could be drawn from their form, and from the fact that she had given them to her husband for the purpose of having them discounted, but that, in order to charge…

This action was brought, among other things, to recover damages for the alleged breach of a contract to transport a load of lumber to… Held: error; that defendants were not entitled to the damages; that under the contract, as claimed and proved by defendants, they were not bound to convey the lumber to Morris’ dock, and if they ‘ undertook to do so and met with an injury, plaintiff was not liable; that, if it was assumed that the prior, agreement made with defendants was…

This was an action in the nature of a bill of interpleader. Plaintiff is the surviving executor of Chandler Root, deceased. Held: that the decision of the referee was erroneous, the court stating the rule, or rather the exception to the general rule, as above, citing Ayliffe v. Murray (2 Atk., 58); Morse v. Royal (12 Yesey, Jr., 355); jDavouev. Fanning (2 J. Oh., 252,258); Hunter v. Atkins (3 M. & K., 113, 135).