Volume 64 — Barbour's New York Supreme Court Reports

APPEÁL by the plaintiff from a judgment entered upon the report of a referee, dismissing the oomplaint. The action was brought to recover the balance of the price of 500 shares of the stock of the Anthracite Gras Lighting and Heating Company of Hew York, sold and delivered to the defendant on April 14, 1864, at seventy-five dollars per share. The defendant had paid ten per cent of the price in cash, and had promised to pay the remainder in six months from the sale.

APPEAL, by the defendant, from a judgment entered upon the report of a referee. On the 6th day of April, 1859, one Isaac Peck, being at that time the owner of certain real estate situated in the village of Flushing, county of Queens, mortgaged the same to the defendant to secure the sum of $20,000. The defendant was then, and still is an incorporated company, engaged in the business of insuring lives, and. clothed with the usual corporate powers.

APPEAL by the defendant from a judgment entered upon the report of a referee. Held: the vessel not arriving within the time, that the provision in respect to arrival was not a condition, but only a designation of a time, before which the defendant could not be called on to deliver; and that the vessel having arrived after the 1st of August, the contract was binding on the seller.

“The New-York Gas Light Company” was incorporated by an act of the legislature, passed March 26, 1823. Held: that to the extent the dam was maintained by the State, or by its authority, it could not be a nuisance, but so far as it was repaired or maintained by the plaintiffs for their own private use or benefit, these additions, provided the dam would have been a nuisance if not built by the State, were unauthorized and might be a nuisance,…

Bloodgood, administrator of John M. Blood-good, deceased. The said administrator having filed his account with the surrogate, and it appearing that William S. Sears, a creditor, had a claim against the said estate, which claim was disputed by the administrator, it was ordered that said claim be referred to David R. Jaques, Esq., as referee, to take testimony as to the facts in relation to said claim, and to hear and determine the same, and to make report thereon, subject to…

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

APPEAL, by the defendant, from a judgment entered on a verdict of a jury. The action was brought by the plaintiffs as executors of John Wahl, deceased, upon a policy of insurance issued by the defendant upon the life of the testator.

APPEAL, by the defendant, from a judgment entered upon the report of a referee. Held: on the appeal, unammously, per Lyndhurst, J., that there was no objection to the evidence. * * “It was to explain the contract by showing what had been the meaning of the parties. It was said that the evidence is of individual contracts.

THIS action was brought to recover damages for the alleged conversion of 400 shares of the capital stock of the Atlantic Mail Steamship Company. At the several times in question the defendant was a broker, doing business as such in the city of New York, and the stock in question was pledged by the plaintiff to him as security against loss for conducting certain transactions in the purchase and sale of gold coin.

APPEAL, by the defendants, from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the judge’s minutes. The action was founded on the statute of April 13, 1855, by which compensation was given to parties whose property should be destroyed by mobs or riots, by action against the city or county in which the property was situated.

The appellants are as follows: John Crolius, executor of the deceased, appointed by her will, and also by the second codicil, of which probate was refused by the surrogate; and William Crolius, one of her heirs and next of kin.

APPEAL by the defendant from a judgment entered in favor of the plaintiff on the verdict of a jury for $533.20, the value of a cask of wine. Held: that conditions contained in the bill of lading, not delivered until after the shipment and loss of goods, though before the loss was known, did not control the. rights of the shipper. (See Bostwiek v. Balt, and Ohio R. R. Co., 45 N. Y. 716.) IY.

<p>ERROR to the ]STew-York Court of General Sessions. The prisoner was indicted for forging a bank check of which the following is a copy:</p> <p>“No. 4971. New York, March 13th, 1872.</p> <p>Chemical National Bank:</p> <p>Pay to the order of Robert Cottier and Sons, two hundred and thirty-seven dollars.</p> <p>$237.00. J. Edwin Conant & Co.”</p> <p>The second count charged the prisoner with uttering and publishing a false and forged check on the same bank, purporting to have been issued by J. Edwin Conant & Co., with intent to injure Robert Cottier, senior, Robert Cottier, junior, Charles S. Cottier and other persons. The cause was tried before Recorder Hackett and a jury.</p> <p>The check was produced at the trial, and proven to be a forgery.- Robert Cottier, a manufacturer of gold leaf, testified that on the 13th of March he received the check from the hands of William Watson, an expressman. The check, when so received, was in an envelope with a letter. The envelope, letter and check were identified by this witness. A box was delivered by Cottier to the ex-pressman, as requested in the letter. Edward Keating, an employee of William Watson, testified that on the 13th of March, when his employer was out of his office, “the prisoner at the bar” came in-and left a letter in an envelope, and a business card, which witness delivered to his employer, as requested by the prisoner, who said there was a box to be taken to the St. Denis hotel. William Watson, expressman, testified that on the 13th of March, on his return to his store, the salesman in the store delivered to him. an envelope, which he then took to Mr. Robert Cottier, to whom it was addressed. A box with some gold leaf in it was then delivered by Cot-tier to Watson, who took it to the St. Denis hotel, where the defendant was waiting for it, and claimed it, paying at the same time the express charge.</p> <p>The jury rendered a general verdict of guilty.</p> <p>I. The court erred in allowing the district attorney to ask the witness, Jacob 0. Parsons, teller in the Chemical National Bank, the following question, viz : “ Q. At that date, was there any account in that bank of J. Edwin Conant & Co. ?” It in no way tended to prove the check to be a forgery or false check. The check might have been genuine, and yet the drawer have no account with the bank. It is not a necessary element, that the drawer of a check or bilí of exchange shall, at the time of drawing the check or bill, have funds with the drawee. The check or draft is not void because the drawer has no funds with the drawee. Bank checks are, in substance, bills of exchange, payable on demand. If payable at a future day, it is not properly a check, but a biE of exchange entitled to days of grace. The fact that it is drawn on a bank does not determine its character. (Edwards on Bills and Prom. Notes, p. 57, 2d ed., and cases there cited.) It tended to prove a different crime from that charged in the indictment. It had no relevancy to the crime charged in either count in the indictment, It was calculated to prove the crime of false pretences, in obtaining property by the issuing a check upon a bank where the drawer and purchaser had no funds or account, in order to obtain from the person to whom it was deHvered the possession of the property. (2 P. S. 677, § 55, False Tokens and Pretences.) Obtaining goods by giving in payment a check upon a banker with whom the party keeps no account, and which he knows wiH not be paid, was held within the 30 Geo'. 2, chap. 24. (Rex v. Jackson, 3 Campb. 370. Amer. Crim, Law, [Wharton,] § 2107, 4th ed.) The 30 Geo. 2, chap, 24, enacts “That aE persons who shall obtain money from others by false pretences, with intent to cheat or defraud such persons, shall be deemed offenders against the pubEc peace. ’ ’ 2 Russ, on Crimes, 288.) This statute was against “obtaining money” only, whEe our statute is against “ obtaining the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing.” It has been repeatedly held in this State, that drawing a check upon a bank, where the drawer did not keep an account, and had no reason to suppose the check would be paid, in payment for property delivered, was within this statute. This evidence was competent to prove that, and nothing more; it had no relevancy to the question upon trial—whether the check was forged, or whether it was uttered, knowing it to be forged. This proof in no possible way tended to prove either charge. The rules of evidence are the same in criminal as civil cases. (2 Russ. on Crimes, 725.) If one offence only be charged, and the proof be given of the commission of one such offence, proof of another distinct offence of the same kind cannot be given. (The People v. Hop-son, 1 Denio, 574.) If this will not be allowed, how much more reason is there for not allowing evidence of another offence of a different kind. In the cáse of The People v, Thoms, (3 Park. Crim. Rep. 256,) the Court of Appeals held that it was error in the court to allow proof that on searching the prisoner’s wife, immediately after his arrest, parts of bills were found in her pockets, apparently cut for the purpose of making similar alterations, the charge against the defendant being, having in possession an altered and forged bank bill, with intent to pass the same as true. In the case of The People v. Dibble, (5 id. 28,) the same court also held, that it was error, on the trial of an indictment for passing a counterfeit bank note, for the prosecution to prove that, two or three days after the transaction in question, the prisoner passed two other counterfeit bank notes to other persons— the said notes not purporting to have been issued by the same bank as the one for passing which this indictment was found, and the uttering of them being in no way connected with that act. The court, in its opinion, says : “We think, therefore, that these transactions were merely calculated to excite suspicion and prejudice against the prisoner, and had no legal bearing upon the issue which was on trial.” In a bill of exceptions, if an exception is well taken, the verdict must be set aside, and a new trial granted, unless the appellate court can see that the error was such that no injury could arise from it to the excepting party. The People v. Brown, 6 id. 666-670.) The foregoing observations apply to the following question put to the same witness: “Did you ever see that check before? Was it ever presented to you at the bank to your knowledge?” Also to the question put to the same witness: “Was there any such firm as that (Robert Cottier & Sons) having an account in your bank at that date?”</p> <p>II. The court erred in refusing to discharge the prisoner at the close of the evidence of the prosecution. The prosecution did not show the forged check in the prisoner’s possession—that is, such a possession as that contemplated by the law. It was not shown to have been in his possession in any other way than enclosed in a sealed envelope in a letter, purporting to have been written by J. F. Connor. This was the proof made by the prosecution. The evidence aE went to show that another party had made the contract for the goods, had enclosed the check to the party with whom that contract had been entered into, and that the defendant was but the messenger. There was not one word of evidence on the part of the prosecution in any way going to show any connection between the purchaser, the writer of the letter and the defendant. There was no evidence offered to show that the purchaser of the goods and the defendant were acting or confederating together to carry out any fraud, and the suggestion by the recorder, that such might have been the fact, was whoEy unfounded, and was an error to the prejudice of the defendant. Every intendment is to be taken in favor of innocence, and there being no evidence going to show that the order or letter of J. F. Connor was a forgery, it was the duty of the court to assume that whoever may have been the actual forger, the evidence pointed to Connor and not to the defendant, and that, in the absence of any proof to the contrary, the court was bound to assume that the prisoner was but the messenger of Connor. The evidence of the prosecution is, that it was not the prisoner who made the contract.</p> <p>III. The court erred in the charge to the jury, in those parts which are expressly excepted to. That part of the charge where the recorder said, “How, gentlemen, I ask you what would be your feeling and action if you were arrested upon a charge upon which you knew yourself to be entirely free from guilt % If his story was true, he was at that restaurant where that man was ; I ask you if you Were arrested under suspicion of crime, if you believe for a moment that the police officer, who has sworn to do his duty, or the sergeant to whom this matter is communicated, would refuse to have that man sent for,” was erroneous. What was the idea the jury had a right to get from those remarks ? Had they not the right to suppose that the law required every police officer to be sworn to go after and assist every prisoner to get his witnesses; that it is to be presumed that every sworn officer will discharge his duty; that the police officer, having been so sworn, as the law required, it was not to be believed by the jury that he had neglected to discharge that sworn duty ? There is no law imposing-such a duty Upon the police officer, and it was error for the court to instruct the jury that there was. It was held in a civil case, (Green v. White, 37 N. Y. 405,) that “when an erroneous charge is made by the judge, the verdict for the plaintiff must be set aside, unless it is shown that the error did not and could not have affected the verdict—it is not for the defendant to show how he was injured by it—it is for the plaintiff to show that no injury could possibly havé arisen from the error. ’ ’ The court remarked: '“Ho one can certainly say how the minds of individual jurors are affected, or how an united result was reached.” This being the rule in civil cases, how much more reason and justice is there that the rule should prevail in criminal cases involving the personal liberty of the prisoner. In the case of The People v. Quin, (1 Park. Crim. Rep. 340,) it was held to be error for the judge to say to the jury in his charge, “Under the circumstances as given you by the witnesses for the prosecution, I see no ground to warrant you in finding the defendant guilty of manslaughter.” The court remark that, “Upon such a charge, the jury may well have supposed that a verdict of manslaughter would have been in violation of law; if the charge was such that it might be so understood, I think it was erroneous.” Had hot the jury in this case the right to suppose that if there was any person at the hotel, who had employed the prisoner to perform this service, the police officers, acting under their oath, would have secured and produced such person by force; and that they, the officers, not having done so, that was conclusive upon the jury that no such fact existed, and therefore the prisoner must have been the principal. The whole charge, in its entire scope, was calculated'to, and probably did, cause injustice to be done the prisoner ; it was a substantial direction to the jury to convict. (See Bulkeley v. Keteltas, 4 Sandf. 454.) If the charge, in this case, does not come within the rule laid down in the case last cited, when'the court is called upon to interfere, then it is difficult to conceive of one in which the court would be able to see cause to interpose. It cannot be, that because a judge now and then, between each substantial direction to convict, interpolates the words, “but, gentlemen, you are to judge yourselves, irrespective of any impressions that may be on the mind of the court,” or “these are matters for grave consideration,” he is at liberty to say, just put yourselves down, gentlemen, as incompetent jurors, unless you convict. It cannot be possible that a charge, snch as the one in this case, has a tendency to promote justice; to leave the questions of fact—the question of the prisoner’s guilt or innocence, to the jury, uninfluenced by the direction of the court.</p> <p>The whole case shows a fraudulent plot to obtain from Cottier a quantity of gold leaf, by the imposture of a forged check—-the defendant being the active party in the transaction. The plot was detected, and the defendant arrested, in the act of receiving the gold leaf, as disclosed in the testimony of officer Keating. The nature of the objections to the record of conviction renders it necessary to set forth, as above, a view of the merits of the case. The first objection to the proceedings at the trial is, that the testimony of Jacob C. Parsons, teller of the Chemical national Bank, was admitted. His testimony was, that at the date of the check alleged to have been forged, the firm in whose name it was drawn had no account in said bank. The testimony was admissible to show the intent of the party accused, i. e., that there was fraud throughout the transaction. The second objection is, that the recorder, in his charge to the jury, said: “ To my mind, undisturbed by any considerations growing out of the evidence offered by the accused in his own behalf, the evidence taken on the part of the prosecution leads irresistibly to the conclusion that the prisoner is guilty of the specific offence charged.”</p> <p>The reply to this objection is:</p> <p>First. The learned recorder united with the foregoing expression of opinion an equally positive charge, viz., that “the opinion of the court as to the guilt or innocence of the accused has nothing to do with your (the jury’s) deliberations; you are to judge yourselves, irrespective of any impressions that maybe on the mind of the court.” Thus, the defendant had all his rights secured to him by explicit instructions.</p> <p>Second. In no case would a mere expression of opinion by the court, as to the guilt of the accused, constitute error, unless it was also charged that the jury should adopt that opinion; or unless, upon a full review of the case, on its merits, it were reasonably apparent that the rights of the defendant were prejudiced. In the record now under review the conviction was fully sustained by the facts. In such cases the liberal discretion of courts, in their charges to juries, has never been restricted. The principle is too familiar to require support by citing authority.</p>

<p>APPEAL, by the plaintiffs, from a judgment entered upon the report of a referee, dismissing the complaint.</p> <p>The action was brought to recover the balance of an account, amounting to $2,588. The answer was a general denial, and setup a counter-claim, amounting to $1,714.52.</p> <p>It appeared, from the referee’s finding of facts, that the plaintiffs were bankers in Paris, and the defendants bankers and commission merchants, in New York. That the plaintiffs filled orders, given by the defendants, for merchandise, and sent to the defendants merchandise for sale, and mercantile papers for collection; and that the parties kept running accounts together arising out of those mutual transactions. The whole dispute between the parties arose upon two accounts made by the defendants, one dated May 22, 1867, and the other dated July 5, 1867, called the Dreux accounts. It was found by the referee that, independently of these two accounts, the defendants all the transactions were indebted to the plaintiffs in the sumof $909.70. If all the items in these two accounts are rightfully charged against the plaintiffs, the plaintiffs are indebted to the defendants thereon in the sum of $926.95; which counterbalances the indebtedness of $909.70, from the defendants to the plaintiffs, and authorized a judgment for the defendants.</p> <p>The referee found, as a conclusion of law, that by the accounts of May 22 and July 5, 1867, the plaintiffs were indebted to the defendants in the sum of $936.35, and that thus the other indebtedness of $909.70 was counterbalanced, and that the defendants were entitled to judgment.</p>

Cullen, Jr., and John T. McGowan, Esqs., copartners composing the law firm of Cullen & McGowan, attorneys for the plaintiff in the above entitled action, pay over to Shepherd F. Knapp, receiver of said plaintiff, the sum of $1,118.08, with interest and costs of motion, within ten days from the service of the order, or that a non-bailable attachment issue against them.

THIS is an appeal by the contestants from a decree of the surrogate of Hew York, admitting to probate the will of Martha P. Wurts, deceased. The testatrix was the widow of John Wurts, deceased, and died without children. Her next of kin were nephews and nieces—fourteen in number—ten of whom •had legacies under the will, but she gave the bulk of the estate to Charles Pemberton Wurts, the nephew of her deceased husband, under ivhose will she had acquired it.

<p>The auditing of a claim against the county of Hew York, by the board of supervisors, is an allowance of the claim, and when funds are provided for its payment, no further auditing is required. Such auditing is conclusive upon the board and their successors; and no subsequent board of supervisors will be authorized to require the same to be audited a second time.</p> <p>The act" of the legislature of 1872, creating the board of audit, &c,, (Laws of 1872, ch. 9,) authorized the comptroller of the city of Hew York .to make payment of the claims remaining unpaid for 1871, for supplies and materials furnished during that year, for the purposes of the various departments of the city, and for that purpose to issue bonds, on which money was to be raised. But it did not provide means for the payment of any claims audited by the board of supervisors of 1871, and remaining unpaid, for the wait of funds, but only authorized the comptroller to pay claims which should have been audited and allowed by the board of audit. If a claimant, whose claim was 'udited by the board of supervisors, in 1871, wishes such claim to be paid oV- of the fund arising from the sale of bonds under that act, he is required to ubmit it for auditing, as well as allowance, by the board of audit.</p> <p>Such claimant is not obliged to submit his claim to that board; but if he d, es not, no provision is made by that act, for its payment. And until such clair, is audited by the new board, its payment by the comptroller is unauthorized.</p> <p>The board of audit, &c., is not bound to pass and allow such a claim at the rate adopted by the board of supervisors. The board is to audit; and this duty they must perform. They cannot omit it, and allow the plqim without auditing.</p> <p>Where any body of men is directed by lavy to audit a claim, it seems that an order of the court directing the amount at which such claim shall be allowed would be improper'; except in cases of salaries and claims where the amount to be recovered is fixed by statute. In other cases, the board which is to audit must settle the amount to be allowed.</p> <p>It is a rule, applicable to the writ of mandamus, that if the rehjtor asks for more than he is entitled to, the application should be denied. *</p>

APPEAL, by the defendants, from a judgment entered upon the report of a referee. The action was brought to foreclose a mortgage executed by' the defendants, to secure the payment of promissory notes made by the defendant George M. Rea and others, and discounted by the plaintiff, in the city of Yew York; which mortgage was given to Aaron Woodman, the endorser of the notes, and had been assigned to the plaintiff.

<p>APPEAL by the defendant from a judgment entered at a Special Term on a trial before the court without a jury.</p> <p>The issues, as presented by the pleadings, were simply these: 1. The complaint alleges a cause of action against the defendant as common carrier, for the. loss of two trunks, delivered to the defendant by the plaintiff, at New York, in December, 1867, to be transported to Cambridge; the non-delivery of the trunks at Cambridge, although sufficient time for their transportation had elapsed; and that the contents of' said trunks were of the value of $238.47.</p> <p>2, The answer substantially denies the fact that the trunks were delivered to and received by the defendant, in his capacity of common carrier, and avers that on the delivery of the said trunks to the defendant the plaintiff and defendant entered into a special contract, with reference to the transportation of the said trunks, by the defendant issuing to, and the plaintiff receiving and accepting, a certain domestic bill of lading, containing the terms on which the said trunks should be transported; and that such bill of lading constituted the only contract, with reference to the transportation of said trunks, entered into between the plaintiff and defendant. A copy of the said bill of lading was attached to the answer. At the head of said bill of lading the following is printed:</p> <p>“Notice,—Shippers must have the value of their packages inserted in this receipt, otherwise the company will not be responsible for an amount over $50.”</p> <p>In the body of the bill of lading it is provided, inter alia, as follows: “It is a part of the consideration of this contract, and it is agreed that * * * * nor in any event shall the holder hereof demand beyond the sum of $50, at which the article forwarded is hereby valued, unless otherwise herein expressed, or unless specially insured by them, and so specified in this receipt.”</p> <p>On the issues so framed, the cause came on for trial at a circuit court held by Justice Ingraham. A jury was waived. The defendant having admitted that the value of the contents of the trunks, alleged to have been lost, had been correctly stated at $238.47, the plaintiff thereupon admitted that, at the time of the delivery of the said trunks by the plaintiff to the defendant’s company, there was issued by the said company to the said plaintiff, and accepted by him, a bill of lading, of which a copy was set forth in foil. It is similar in aE respects to that referred to in the answer, and annexed thereto, with the difference, merely, of the proper filling up of the blanks. The actual value of the trunks is not stated in the biE of lading. The plaintiff then testified on the direct examination (not through an interpreter, but in Engfish,) that he was a German; that.he saw the biE of lading when it was given; that he could not read or write English, and that he had not read the biE of lading. On cross-examination he testified, inter alia, as foEows:</p> <p>“Q. That was given you at the time you made the shipment? (Showing witness receipt.) A. That was given to me; I took it and put it into my pocket-book; I kept it there until I had an answer from the country that they did not get the goods, so I took the receipt and sent it down to the Company.</p> <p>Q. As a voucher for the trunks ?</p> <p>A. Tes, sir.”</p> <p>The plaintiff, then rested, and thereupon the defendant’s counsel requested the court to decide, that by the terms of the said biE of lading, the recovery of the plaintiff in this action, if any, should be $50, and interest from its date.</p> <p>The court refused so to rule; to which refusal the defendant’ s counsel duly excepted. Thereupon the court ordered judgment for the plaintiff for the sum of $256.71, and costs.</p> <p>The learned justice, in his finding of facts, found, inter alia:</p> <p>“6. That the parties to this suit did not contract as alleged in the answer; nor did the plaintiff enter into the agreement specified therein; nor was the liability of the defendant limited by any alleged contract to the sum of $50, and interest thereon from the date of the receipt.” And as conclusions of law held: 1. That the defendant was liable for the trunks and contents so lost, in his capacity of common carrier.</p> <p>2. That the plaintiff was entitled to recover the sum of $238.47, the value of said trunks and contents, and $19.18 interest thereon, from the time of the receipt of said trunks and contents by said company, with the costs of this suit. Wherefore judgment was accordingly directed in favor of the plaintiff and against the defendant, in the sum of $257.62, with costs.</p> <p>The defendant duly filed and served his exceptions to the findings of fact and conclusions of law of the learned justice.</p> <p>Judgment having been entered in favor of the plaintiff, for the sum therein directed, with costs, the defendant duly appealed from said judgment.</p> <p>I. The right of a common carrier to limit, by special contract, his common law liability, is no longer a subject of discussion.</p> <p>II. The bill of lading, executed by the defendant, and received by the plaintiff, without objection, when he delivered the trunks into the custody of the defendant, was evidence of the contract entered into between them; and the defendant must be regarded as undertaking, and the plaintiff as agreeing, that the trunks were to be carried upon the conditions therein expressed. (Wolfe v. Myers, 3 Sandf. 7. Newstadt v. Adams, 5 Duer, 43. Moriarty v. Harnden Exp., 1 Daly, 227. Hoffman v. Dinsmore, MS. opinion of New York Common Pleas, General Term, 1867; opinion by Daly, J. Dorr v. N. J. Steam Nav. Co., 1 Kern. 485. French v. B. N. Y. and E. R. R. Co., 4 Keyes, 108. Guillaume v. Hamb. and Am. P. Co., 42 N. Y. 212. Steinweg v. Erie R. R. Co., 43 id. 123. Maghee v. C. and Amboy R. R. Co., 45 id. 514. Belger v. Dinsmore, Court of Ap., Sept. Term, 1872, unreported. N. Y. Manuf. Co. v. Ill. Cent. R. R. Co., 3 Wall. 107. Kalman v. U. S. & Exp. Co., 3 Kans. 205. Grace v. Adams Exp. Co., 100 Mass. 505. Pendergast v. Adams Exp. Co., 101 id. 120. Lawrence v. Prov. and B. R. R. Co., 36 Conn. 63.)</p> <p>III. The court below erred in declining to rule that the plaintiff was only to recover the sum of $50 (the stipulated value in said bill of lading,) with interest; and in ruling that the plaintiff was entitled to recover the actual value of the lost trunks, contrary to the stipulation in said bill of lading contained. This very stipulation, (commonly known as the $50 clause,) and others, differing in amount only, have frequently been the subject of judicial sanction. (See Newstadt v. Adams Express Co., 5 Duer, 43; Moriarty v. Harnden Express Co., 1 Daly, 227; Dorr v. N. J. Steam Nav. Co., 1 Kern. 485; Hoffman v. Adams Exp. Co., supra; Kalman v. U. S. Exp. Co., 3 Kans. 205; Van Toll v. S. E. R. R. Co., 12 C. B., N. S., [104 Eng. Com. L.,] 75; Marsh v. Horn, 5 B. & C. 322; Baxendale v. Great E. R. Co., 4 Q. B. 244; Brehme v. Adams Exp. Co., 25 Md. 328; Boorman v. Am. Exp. Co., 21 Wis. 152; Belger v. Dinsmore, supra.)</p> <p>IY. On the trial, the plaintiff, who was a German, testified that he could neither read nor write English. This fact, it is conjectured, was the ground on which the court below based its decision as to the non-existence, under the circumstances, of. any special contract of carriage between the parties. If this conjecture be correct, (and in view of the foregoing well settled principles of law, it is the only one which can arise,) then it is respectfully submitted that the decision of the court below cannot be sustained, even in such a view of the case, because, 1. The defendant was willing to receive and transport the trunks on the stipulated freight, as bailees for hire alone, and not as common carriers; and the plaintiff, by receiving and accepting the bill of lading issued by the defendant, without dissent from its terms, thereby signified his assent to the defendant’s assuming such limited liability. From the act of the plaintiff the defendant was therefore authorized to infer the plaintiff’s assent to the only contract the defendant was willing to make, and had a right to suppose, by such assent, so expressed, that he had made. 2. The plaintiff spoke English perfectly, and the fact that he could not read or write it, appeared for the first time on the trial. The defendant, had, therefore, the right to the presumptions: (a.) That the plaintiff could read English, because he spoke it fluently. In this English speaking, and generally educated country, inability to read such language cannot be presumed. The plaintiff, by not informing the defendant of this inability to read the shipping contract when handed him, confirmed such presumptions. (b.) That he knew the law; that acceptance by him of the bill of lading constituted the contract between him and the defendant for the transportation of the trunks. His ignorance of the law cannot avail him. (Ignorantia legis neminem excusat.) 3. The defendant having acted under the bill of lading as delivered to the plaintiff, and accepted by him, the plaintiff is equally bound by it, in the absence of fraud or imposition, (a.) Whether he read or did not read its terms and conditions. In Rice v. Dwight Manufacturing Co., (2 Cush. 87,) which was an action indebitatus assumpsit, to recover for work done, the defence was that the work was performed under a special contract; and a paper of printed regulations was shown to have been given to and accepted by the plaintiff, as containing the terms of the contract, but which was not signed by either party. The plaintiff denied knowledge of its contents; but the court held that where a party enters into a written contract, in the absence of fraud, he is conclusively presumed to understand its terms and legal effect, and to consent to them. J udgment was therefore given for the defendant. In Grace v. The Adams Express Company, (100 Mass. 505,) which was an action against the express company as common carriers, for the loss of certain goods delivered at Wilmington, to be carried to Taunton, Massachusetts, the bill of lading issued by the defendant and accepted by the plaintiff, contained a clause exempting the defendant from loss arising from accidental fire, the dangers of the sea, &c. The goods were lost at sea by the accidental burning of the steamer transporting said goods. Justice Colt, in delivering the opinion of the court, said: “ The receipt was delivered to the plaintiff as the contract of the defendants. It is in proper form. The terms and conditions are expressed in the body of it, in a way not calculated to escape attention; and the acceptance of it by the plaintiff, at the time of the delivery of his package, without notice of his dissent from its terms, authorized the defendants to infer assent by the plaintiff. It was his only voucher and evidence against the defendants. It is not claimed that he did not know when he took it, that it was a shipping contract, or bill of lading. It was his duty to read it; and the law presumes, in the absence of fraud or imposition, that he did read it, or was otherwise informed of its contents, or was willing to assent to its terms without reading it.” Again, in Hopkins v. Westcott's Express Co., (6 Blatch. 64,) Justice Shipman, in delivering the opinion of the Circuit Court of the United States for the Southern District of Hew York, said: “It can make no difference that the plaintiff did not choose to read it” (the bill of lading) “until after he had notice that his trunk was lost. He received it at' the time he parted with the trunk; it was legibly printed; and he must be charged with actual notice of its contents.” And to the same effect are Lewis v. Great Western Co., (5 H. & N. 867;) Van Toll v. South Eastern R. R. Co., (12 C. B., N. S., [104 Eng. Com. L.,] 75; Squire v. N. Y. Cent. R. R. Co., (98 Mass. 239; Perry v. Thompson, (Id. 249.) The same doctrine, too, has been applied, 1. To the conditions printed at the head of a telegraphic blank. Breese v. U. S. Tel. Co., (45 Barb.. 274,) affirmed by the Commission of Appeals, (6 Alb. L. Jour. 273,) which held, that if a party omits to read or to become informed of the terms and conditions’ contained in a telegraphic blank, it is his own fault. A contract voluntarily signed _ and executed by the party, in the absence of misrepresentation or fraud, with full knowledge or information as to its contents, cannot be voided on the ground of Ms negligence or omission to read or avail himself of such information. (2 Am. Law Rev. 615, where the authorities are collected.) 2. To the conditions printed on a railway ticket. (McAndrew v. Electric Tel. Co., 17 Com. B. 3. Perkins v. N. Y. Cent. R. R., 24 N. Y. 215. Smith v. The same, Id. 223. Bissell v. The same, 25 id. 445.) 3. To the conditions of a policy of insurance. Pindar v. Resolute Fire Ins. Co., (47 N. Y. 114,) in which the Court of Appeals held that the failure of the insured to read the policy, could not enlarge the liability wMch it imposed upon the defendant. (6.) Neither could the inability of the plaintiff to read the terms and conditions of the receipt enlarge the defendant’s liability. Suppose a person speaking English, but not able to read or write it, goes to an insurance company in the city of New York, and causes Ms store to be insured, paying the proper premium for the risk assumed by the company, and receives a policy. Attached to the policy are certain essential conditions, the violation of any one of which vitiates the policy. Shortly thereafter the assured violates one or more of said conditions, and the property is then destroyed by fire. Could the assured nevertheless recover by merely proving at the trial that he was unable to read or write English ? Such a proposition cannot be seriously advanced. But this question was authoritatively settled by the Court of Appeals, in Warhus, adm'r &c., v. The Bowery Savings Bank, (21 N. Y. 543.) In that case the intestate, who was a German, “understanding but a few of the most familiar words of our language,” signed the rules and regulations of the bank, and received a pass-book, in which the deposit was entered, and which had pasted in the front part thereof the said rules and regulations. These rules were in the English language, and were also posted in such language on the walls of the banking room. The court held that the intestate was bound by such rules and regulations, and that his administrator could not recover the intestate’s deposits without first complying with such rules and regulations.</p> <p>V. It is fairly inferable from the plaintiff’s evidence, that he knew full well the purport and effect of his accepting, without dissent, the bill of lading. He testified that he took the goods down to the defendant’s office, accepted the bill of lading for the same, put it in his pocket and kept it until, hearing that the trunks had not arrived at their place of destination, he sent it down to the defendant’s company as his voucher for the trunks.</p> <p>VI. The judgment should be reversed, with costs; or so modified that judgment should be for the plaintiff for the sum of $50, with interest up to the 24th day of February, 1868, the date of the offer of judgment; and for the defendant for all costs subsequent to said date, including the costs of this appeal.</p>

APPEAL by the defendants from an order made at a Special Term, denying a motion for a new trial, made upon the judge’s minutes.

APPEAL by the defendant from a judgment rendered in favor of the plaintiff. The action was brought to recover the amount of a check drawn upon the defendant, which proved to be a forgery; and which the defendant had certified to be good, before it came into the plaintiff’s hands.

(See S. C., 56 Barbour, 284, where the facts are stated.) The feigned issue was to try the question whether a paper claimed to be the-last will and testament of John McKinley, deceased, was duly executed and published as such, by him. The issue was tried at the New York circuit, in June, 1871, before Justice Van Brunt and a jury, and a verdict rendered therein upon the several issues, as follows: “The jury find upon the several issues as follows: First issue.

The relator had, by the order and direction of the respondent as commissioner of public works, in the city of New York, furnished a quantity of water meters, for tke use of the city, to be placed in stores, hotels and other places, where water was furnished for business consumption.

The agent of the defendant shipped, upon a vessel belonging to the company of which the plaintiff was president, a package of nitro-glycerine, consigned to a person in California, without notifying the carriers of the nature of the contents. On the arrival of the vessel at San Francisco, the package was found to be leaking.

APPEAL, by the defendant, from a judgment entered at the circuit. The action was brought to recover an alleged balance of an account for goods sold and delivered. The answer set up a defence, in substance, of an accord and satisfaction. The trial commenced with a jury; but, at the close of the evidence, it being agreed that there was no question for the jury, the jury was waived, and the case submitted to the judge, for his decision.

APPEAL by the plaintiffs, from an order made at a Special Term, denying a motion for a peremptory mandamus.

APPEAL, by the plaintiff, from a judgment entered upon the report of a referee. The action was brought to recover the price of a quantity of lumber, to wit, 71,043 feet, sold and delivered to the defendant, by the plaintiff, at $4.50 per thousand feet. The plaintiff demanded judgment for $315.18, besides interest and costs.

THIS action was commenced in a justice’s court of the county of Onondaga, to recover damages for a breach of contract for not finishing a house according to contract, and for nse of a house and shed. The defence was a general denial. A judgment was rendered in favor of the plaintiff for $15.60, damages and costs.

APPEAL, after judgment, from an order of the county court of Madison county denying a motion for a new trial, upon a case and exceptions. The action was originally tried in a justice’s court, and resulted in a judgment for the plaintiffs ; which, on appeal to the county court was affirmed; the plaintiffs there recovering a judgment for §74.04.

The action was brought for a divorce, and was tried at the Onondaga Circuit, in September, 1868. The principal question litigated upon the trial, was, whether the defendant had been guilty of adultery, with one Charles J. Clarke. The plaintiff’s evidence tended to show the fact of such adultery, which was contradicted by the testimony of Clarke.

The plaintiff was nonsuited upon the ground that there was no valid promise proved to pay the demand. The demand set forth in the complaint was, that the plaintiff, being the owner of the canal boat Geo.

APPEAL, by the defendant, from a judgment entered upon the verdict of a jury. The action was brought to- recover damages alleged to have been sustained by the plaintiff, by a train of cars being thrown from the defendant’s road on the 14th of April, 1863, between Schenectady and Albany. The action was tried at the Oneida county circuit, in February, 1864, held by Justice Foster. A verdict was rendered in favor of the plaintiff for $5,000 damages.

APPEAL by the plaintiff from a judgment in favor of the defendants, entered upon the report of Isaac Lawson, Esq., referee. The action was brought for a specific performance of an alleged contract by or on the part of the defendants to convey to the plaintiff certain real estate called the Haymarket lot. The defendants, on the 23d of October, 1868, were a municipal corporation, owning the lands in question.

HIS is an appeal from an order of the court made at the circuit, denying a motion for a new trial upon the judge’s minutes. There is also a motion for a new trial, upon exceptions ordered to be heard in the first instance at the General Term. The plaintiff recovered a verdict of $1,369. There were five counts in the plaintiff’s complaint, but they present but two causes of action.

THIS action was brought to recover damages for tearing down and removing the plaintiff’s fence in front of his lot, formerly owned by Judge Jewett, situated on the North side of Genesee, street, in the village of Skaneateles.

The action was brought to recover for the conversion of a canal boat and other property, of the value of some $3,000. The answer was a general denial. The action was referred to a referee, who found the following facts: First. That on the 30th day of May, 1870, the plaintiffs sold and delivered to one John H. Cook the canal boat called the Gol.

On the 8th of December, 1866, the First National Bank of Palmyra recovered a judgment against Powers & Allen for $2,423.04. On the 24th of the same month Powers & Allen made a general assignment of their property to T. Scott Ledyard, in trust for creditors. On the 6th of February, 1867, the bank assigned the judgment to the plaintiff in this action.

<p>A contract for the shipment of goods upon the defendant’s railroad was made by the plaintiffs, orally, with the agent of the defendant, at Clyde, H. Y., on the 24th of January, 1865, and the goods were delivered to, and received by the defendant’s agent, on that day, and the freight to Albany or Hew York then paid. The goods were forwarded east, on the same day, but did not arrive in Albany until the 27th day of February, thereafter. It appeared / that from the 24th day'of January to February 10th or 15th, freight cars were running over the defendants road with ordinary regularity, and that the usual time required by the defendant, to transport freight from Clyde to Albany, over its road, was forty-eight hours, and to Hew York city about three days. Held that the evidence fully warranted the finding of the referee that the failure of the defendant to deliver the freight within a reasonable time after its receipt, was the result of the negligence of the defendant and its agents.</p> <p>On the third day after the shipment of such goods, as one of the shippers was about starting for Albany, to look after the same, he received from the defendant’s agent, at Clyde, shipping bills of the property. Meld that the receipt of the bills of lading by him, at that time and under the circumstances, could not be considered as implying any change or modification of the contract for transportation, originally made, three days previously; unless it distinctly appeared that the contents of such bills were fully known, and were assented to by the shippers.</p> <p>And, the referee having expressly found that neither of tire plaintiffs knew or were informed of the printed part of said bills, at the time of their receipt, it was further held that the defendant must be deemed to have received the property for transportation subject to its common law liability as a common carrier; and was liable for negligence, for its failure to deliver the property within a reasonable time after its receipt; notwithstanding a provision in the printed part of the bills of lading that the defendant would not be responsible fcr damages occasioned by delays from storms, or by the decay or injury to fruit, &c.; or liable for the non-delivery of the property in any certain time.</p>

<p>APPEAL by the defendant from a judgment of the county court of Ontario county, and from an order denying a motion for a new trial.</p> <p>The action originated in a justice’s court, where the plaintiff, in his complaint, alleged that on or about the 31st day of October, 1869, at Farmington, Ontario county, the plaintiff, and the defendant, by his agent, made an agreement, by which the plaintiff sold to the defendant, and the defendant purchased of the plaintiff, a quantity of apples and his crop of two-rowed barley, supposed to be about two hundred bushels, at the price of $1 a bushel. That by the terms of said contract of sale, the said apples and barley were to be delivered by the plaintiff, to the defendant, at Shortsville, which said apples and barley were to be paid for by the defendant on the delivery thereof, as aforesaid; that the apples were to be delivered immediately, and the said barley as soon as the defendant could get a car to ship said barley; that afterward the plaintiff delivered the said apples to the defendant, at Shortsville, and tendered the barley to the defendant, and was ready and willing to deliver the same, as by the terms of said contract he was required to do; that the plaintiff then and there requested the defendant to accept the said barley and pay for the same as he had agreed, but the defendant refused to accept or receive the same or pay for it, and that he has always refused and still refuses to do so; that by such refusal the plaintiff had been put to great loss, by reason of the decline in the price of barley, since the making of said contract, as aforesaid ; and the plaintiff claimed damages in the sum of $100.</p> <p>The answer of the defendant was a general denial.</p> <p>The plaintiff introduced evidence upon the claim made by him. The defendant offered no evidence, but made a motion for a nonsuit on the ground that the proof did not show any cause of action, and that the contract sought to be established was void by the statute of frauds. The motion was denied by the court, and judgment rendered in favor of the plaintiff, and- against the defendant, for $64.95 damages and $4 costs.</p> <p>On appeal to the county court, a new trial was had, in that court, upon which it appeared that, at the time of the transaction in question, the plaintiff was a farmer, residing in Farmington, Ontario county, and on the 21st of October, 1869, owned and had in his possession, at Ms residence aforesaid, Ms crop of apples for that season, which was then picked, and also 288 bushels of barley, then tM’eshed and in his barn, and a portion of it then cleaned for market. The defendant was a merchant residing and doing business at Newark, in the county of Wayne. One Holmes, at tMs time residing on the farm adjoining the plaintiff, was, prior to October 21, 1869, authorized by the defendant to purchase for him apples and potatoes, and receive the delivery of them at Shortsville in said county, and on the said 21st day of October the defendant also authorized Holmes to buy for him some barley, with authority to pay therefor $1 per bushel; this authority to buy barley was revoked on the following day. But while tMs authority continued, and on the 21st day of October, Holmes called at the defendant’s residence, and then had a verbal negotiation with him on the subject of the purchase of his apples and also his barley, which negotiations are detailed by the plaintiff as a witness, in these words: “Mr. Holmes came along past my house in the after part of the day, and I think he called me to the road, where he was in a wagon, and spoke to me with regard to my apples and barley, and asked if I had sold them; I told him no ; I told him I had talked of selling my barley to a man by the name of Bippey, but had not sold it to Mm; he said he was buying barley and apples for the defendant; I tMnk he said that; he said he was buying barley and apples, however, and he would give me a dollar a bushel for my barley and twenty shillings a barrel for my apples, delivered at Shortsville. My apples were then picked, and my barley in the barn. A portion of it was then cleaned up, I think, and I told him he could have the barley and apples at that price. He was to furnish the barrels at Shortsville, and I was to get them there; he said I would find the barrels at Shortville and I could get the barrels and draw the apples immediately, and they would take the barley as soon as they could get a car.” “I think, at first conversation, Holmes told me he would pay me for the stuff: on delivery.” Within a few days after this talk the plaintiff drew ten barrels of apples to Shortsville, and they were inspected by one Eippey, who was an agent of Holmes, and paid for by Eippey at twenty shillings per barrel. Two or three weeks after the delivery of the apples, Holmes and the plaintiff had another conversation, in which Holmes refused to take the barley, on the ground, as he stated, that the defendant would not take it. The plaintiff then sold the barley for seventy-seven cents per bushel; and the verdict was for the difference in price between what it actually brought on the sale, and the price which it was claimed the defendant, through Holmes, agreed to pay for it. At the close of the plaintiff’s proof, a motion was made for a nonsuit, on the ground that the contract which the evidence tended to establish, was. void by the statute of frauds. The court held otherwise, and denied the motion, and at the close of the whole evidence the same motion was renewed and denied. The defendant then asked the court to submit the question to the jury, as to what in fact the negotiations between the plaintiff and Holmes were on the subject of the barley and apples, under the instruction of the court as to what the statute of frauds required, to constitute a valid contract of sale. This request was denied and an exception taken. The court directed a verdict for the plaintiff for $68.52, and the jury found accordingly.</p>

<p>In an action of ejectment, the plaintiff claimed to recover an undivided half of the premises in question as one of the heirs at law of L. 0., deceased, the mother of the plaintiff and of one of the defendants, who died intestate, seised of the premises. The defendants, by their answer, set up as an equitable defence that L. C. had, prior to her death, executed to the plaintiff, by way of advancement, a deed of about 100 acres of land, which was of greater value than all of the residue of L. O.’s property, and worth more than the plaintiff’s share of her estate. Held, that the answer was available only by way of an equitable defence; and that, to make out a complete equitable defence, under the statute, (1 B. 8. 784, §§ 23, 24, 28,) the defendants were bound to prove not only the making by the intestate of the conveyance by way of advancement, but also that such advancement was equal or superior to the amount of the share which each child would be entitled to receive of the real and personal estate of the deceased.</p> <p>Held, also, that the answer would have been clearly bad, upon demurrer, if it had not contained the averment that the advancement was equal, or superior, to the plaintiff’s share of the personal and real estate of the deceased; and that the burden of proving that part of the answer was upon the defendant. That it was part of a material affirmative averment.</p> <p>Held, further, that the plaintiff’s right of recovery could not be defeated except by clear, distinct proof, satisfactory to the jury, establishing the equitable defence that the plaintiff, in the lifetime of the deceased, had received, by way of advancement, her full and equal share of the estate of the deceased.</p>

On the 20th day of November, 1869, the plaintiff recovered judgment for $534.50 against Gfeorge Draper, as surviving partner of the late firm of Cole & Draper, Lewis K. Cole, one of said firm, having died. Execution was issued upon said judgment, and returned unsatisfied. Lewis K. Cole died in the spring of 1869, leaving a will, in and by which the defendant was created sole executrix.

THIS is an appeal by the plaintiff from a judgment in favor of the defendants, for costs. The action was for libel, and was tried by Hon. D. Boardmaet, justice, and a jury, at the Erie circuit, October 20, 1870. The answer denies the allegations of the complaint, except the publishing of the article alleged to be libelous, which publication is admitted.

HIS is an appeal by the plaintiff from a taxation of costs in favor of the defendant, and a motion to strike the defendant’s costs from the record. The recovery was for injuries received from the dog of the defendant. The action was tried before Justice Hardin and a jury, May, 1872, at the circuit, and resulted in a verdict for the plaintiff of $47.66.

<p>HIS was an action brought by a wife against her husband, to obtain a separation. In August, 1872, the plaintiff obtained an order for publication of the summons. An affidavit of the plaintiff was produced, with the certificate of the sheriff of Montgomery county. The defendant now moves to set aside the order for publication ; and his attorney appears specially for the purposes of the motion, only.</p>

MOTION to change the place of trial from Madison county to Broome. After service of the complaint, a demand for the change was made. The defendant is a resident of the county of Broome. The plaintiff is a corporation created by the laws of the State of Massachusetts, and has a principal place of business in the city of New York.

On February 8, 1872, the prisoner was, jointly with one Libby Dorris, indicted .for grand larceny. The prisoner visited the store of Charles Y. Peckham, 687 Broadway, and selected some hair goods worth $81, which she requested to be sent, with the bill, to 327 East Ninth street, where the bill would be paid.

The action was for a quarter’s rent of a store at No. 13 Dey street. The plaintiff, by George Middleton as his agent, leased the premises for three years and two months from the 18th of February, 1871, to the defendant Lester. The defendant Holbrook was surety in the lease, for the payment of the rent. Lester assigned the lease, February 27, to the National Refrigerating Company.

THE action was to recover on nine promissory notes made by the defendants. The defence was, that the defendants had, on their own application, been declared bankrupts, and that the plaintiffs had proved their claims in the proceeding and received a dividend, and were thereby prevented by the bankrupt act from bringing any actions for the claims so proved. The action was tried before Justice Barrett and a jury.

THIS action w^s brought to recover for an injury alleged to have been sustained by the plaintiff, May 24, 1865, by striking his foot against a piece of iron, partially detached from a broken or worn out rail in the track of the defendant’s road, which it was alleged the defendant, from negligence or want of skill, permitted or allowed to be there. The answer put in issue all of the allegations of the complaint, except that it admitted the defendant was a corporation.

APPEAL by the plaintiff from a judgment entered upon the report of a referee. The action was brought by the plaintiff, as endorsee, against the defendant, as maker, of three promissory notes. Van Saun & Company, brokers, were dealers, and kept an account with the plaintiff. On or about April 28, 1870, the bank made Van Saun & Co. a call loan of $30,000, on collaterals.

An action having been commenced by James E. Miller against Catharine Loeb and Dell P. Peters, all of whom were the members comprising the firm of J. E. Miller & Co., a receiver was appointed in the action, of their effects, contained in the Gflenham Hotel, in Hew York City. On the 20th of December, 1869, D. P. Ingraham, Jr., was appointed such receiver.

APPEAL by the plaintiff from a judgment entered upon the report of a referee. The action was brought to recover damages for the breach of a written contract for the collection of charges upon property which the defendant had received for transportation. The action was referred to a referee, who found the following facts, viz: “ First.

APPEALS from orders made in each of the above actions, striking out the answers as sham. The actions were brought upon promissory notes. The facts are stated in the opinion of the court.

<p>APPEAL, by the defendant Claflin, from a judgment ordered at a Special Term in favor of the plaintiff.</p>

PPEAL from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial. On the 3d of November, 1863, William Van Hook gave to the plaintiffs his note for $1,836.47, payable in five years from date to the order of the defendant, and endorsed by him. The complaint states three grounds on which it is claimed that the defendant is liable as such endorser: First.

<p>Notice to Quit.</p> <p>. A renting by the month, or from month to month, is not such a letting as to require a month’s notice to terminate.</p> <p>Such a contract in this city cannot be construed as a tenancy at will, and does not extend the tenancy to the first of the following May.</p>

THIS is an appeal from an order made at Special Term, denying a motion to vacate an order directing the payment of $802.07 paid into court, being the value of the contingent inchoate right of dower of Rachel Ann Pitts, one of the defendants, and the wife of John Pitts, another defendant in tMs action, wMch was commenced in January, 1870, for the partition of certain real estate in Hew York City.

PPEAL, by the defendants, from an order made at a Special Term, directing that a peremptory writ of mandamus issue against them… Held: “The bill of the relator having been audited and allowed by the board of supervisors, and approved by the mayor, and audited and pronounced correct by the auditor, and paid in part by the comptroller, I do not think the relator was called upon or bound to present it or the balance due on it to the commissioners, for a re-auditing by…

<p>It was the design of the codifiers, by section 121 of the Code, to do away with the practice which had previously prevailed in regard to mere bills of revivor, and substitute in its place the practice of equity in reference to supplemental bills.</p> <p>The Code has placed supplemental complaints, complaints for revivor and supplement, and for mere revivor, all upon the same footing, as to the practice. To file a supplemental complaint, in either case, leave of the court is necessary.</p> <p>The difference between the present and the former practice is, that now, the objections to the filing of the complaint in cases of mere revivor, as well as in cases where the complaint contains other supplemental matter, are to be heard on a preliminary motion, instead of by the interposition of formal demurrers or pleas.</p> <p>The court has the power to deny the revivor and continuation of a suit, on an application to continue the same by supplemental complaint under section 121 of the Code.</p> <p>The provisions of sections 121 and iVl of the Code, in respect to the power of the court, are substantially the same. The word “may,” in each, is permissive, and not mandatory. The right to set up new matter, by supplemental complaint, is not absolute, but is within the discretion of the court.</p> <p>The decisions in Bornsdorff v. Lord, (41 Barb. 211,) and Roach v. La Barge, (43 icl. 616,) held to be erroneous, and declared to have been in effect overruled by the Court of Appeals, in Medbwry v. Swan, (46 N. Y. 200.)</p> <p>Under the present practice, the same objections may be urged, in opposition to a petition to revive, which could formerly be raised to a formal bill of revivor, by demurrer or plea.</p> <p>Great laches, in reviving a suit which has abated, is a good objection to an application for leave to file a supplemental complaint to revive it.</p> <p>The alleged fact that the defendants were, or were supposed to be, insolvent, during the greater portion of the time during which the delay occurred, is not of itself a valid excuse for a long delay. The statutes of limitations, in analogy to which courts of equity act, contain no exception by which their operation is suspended in cases of insolvency.</p> <p>Circumstances which were held to render this case one in which, even if there were no statute of limitations directly binding upon courts of equity, the application to revive and continue the suit should be refused, on the ground of unreasonable delay.</p> <p>Where, in an action for relief, in equity, falling within section 97 of the Code, which took effect in July, 1848, it appeared that more than twenty years had elapsed, not only since the cause of action arose, but since the time when it became necessary to revive the action, although the proper parties to revive it were in existence and in a condition to proceed; it was held that the statute of limitations was a flat bar to the right to revive; and this notwithstanding the defendants might, if they were unwilling to wait for the expiration of the statutory time, have compelled a revivor, or a dismissal,. within a shorter time,; and without regard to the question of the solvency of the defendants.</p> <p>The statute of limitations having commenced to run, is suspended by death only in the cases, and to the extent, expressly provided by the same or some other statute. Disabilities cannot be tacked to disabilities.</p> <p>There seems to be no reason why the statute of limitations should not be applicable to an attempt to revive and continue a suit which has abated.</p> <p>The same policy upon which statutes of limitations are based as applicable to other cases, seems to apply with at least equal force to a suit which, though in a situation to be revived, has lain unrevived and abandoned through the period which would have barred its commencement. And the settled law is that the statute of limitations always was a good plea to a bill of revivor.</p>

MOTION by the plaintiff íor a new trial, on exceptions taken at the Wayne circuit, and ordered to be heard at the General Term in the first instance.

Tracy, successor to said Hiram Osborn, as trustee for the creditors of .Harris Thomas & Sons, be brought in and substituted in the above entitled proceeding, in place of the said Hiram Osborn, deceased, under and in pursuance of the provisions of chapter 838 of the laws of 1872.

The action was brought on two policies of insurance, issued by the defendant to S. B. Lake, to recover a loss by fire. ■ The complaint contains two counts. The first count is on a policy dated 8th October, 1866, and both the complaint and the policy describe the property insured, as follows: “On his barouche in shop north side of Rock street,” &c. * * “ This barouche is painted black, with red stripe—on storage.

<p>When the propriety of a nonsuit is in controversy, the plaintiff is entitled to the benefit of all the conclusions the jury would have been warranted in drawing from the facts proven in the case. Per Daniels, J.</p> <p>Where, on the trial, evidence in support of the plaintiff’s case was rejected, and a nonsuit ordered, not because the evidence offered was defective in any material respect, but because, in the judgment of the court, the plaintiff’s right of action was barred and extinguished by a previous submission to arbitration, and an award made thereon; held that all just inferences supported by the evidence offered should be drawn in favor of the plaintiff.</p> <p>Where the terms of a submission are sufficiently broad to render a particular claim, the proper subject of trial, before the arbitrator, but the award, upon its face, does not appear to include any adjudication thereon, evidence showing that proof of such claim was not heard, but on the contrary, was excluded by the arbitrator, is not in conflict with the terms of the award, but isiadmissible for the purpose of showing what was the fact.</p> <p>Evidence to show that the plaintiff, on a former trial before an arbitrator, endeavored to bring before him the cause of action in suit, but was prevented from so doing by the objection of the defendant and the refusal of the arbitrator, should be received by the court; inasmuch as it would not only show that the cause of action sued on was not included in the award, but that it could not have been, on account of the misconduct of the defendant himself. And the defendant should be concluded, by the decision he then procured to be made in his favor, from affirming that the demand in suit either was, or could have been, then made the subject of examination and decision.</p>

Lewis J. Phillips brought this action in . the supreme court against Samuel Shiffer, to compel specific performance of a contract for the purchase of real property in the city of New York. The defendant, the purchaser, declined to perform on the ground that plaintiff’s title was defeetive. The plaintiff’s title was derived from one Harriet M. Wiswall, who took title by a sheriff’s deed made in 1835. , ' The defendant refused to accept the conveyance on the grounds : 1.

<p>Although, by the Revised Statutes, the doctrine of implied covenants was abrogated, as to conveyances, it has been held that this statute does not apply to leases for years. Covenants, therefore, are still implied in leases of that character.</p> <p>It seem» the rule at present is, that words of proviso and condition will be construed into words of covenant when such is the apparent intention and meaning of the parties.</p> <p>An express covenant qualifies and restrains the implied covenant, within the import and effect of the express covenant, so that the former is not to be held broader than the latter.</p> <p>All rules for the construction of deeds are founded upon the idea of arriving at the intention of the parties; and when they have made an express agree-* ment touching the same subject, it is to be presumed that they have expressed all that was agreed upon.</p> <p>A lease of a salt block to the defendant, for a term of years, contained an express covenant by the lessee, pledging the net earnings of the salt company, in any one year, to the payment of the rents accruing upon that, and all other leases of salt works during the same year. Held that this provision was inconsistent with the idea that it was understood that the company was to be liable to pay the rent in any event, whether any profits . were made or not.</p> <p>In addition to this pledge of the net earnings, the lease contained the following clause: “ It being, however, further understood that the said party of the second part enters into no other, or different, covenant or agreement respecting such rents.” Held that in view of this provision, there was no room for doubt that the lessee did not intend to, and did not, covenant, or agree, to pay the rent otherwise than by an appropriation to and among the different lessors, of the net earnings of the company during the year in which the rent accrued.</p>

MOTION, by the plaintiff, for a new trial, after a nonsuit at the Allegany circuit, and exception ordered to be heard at General Term in the first instance.

PPEAL ñ-om an order of the connty court of Oneida, setting aside a judgment for the defendant, and directing a judgment for the .plaintiff, with costs.

<p>As to the judgment creditor, a sheriff is bound to see to it that a debtor imprisoned on execution does not escape from the limits; and if he does escape, without á lawful discharge, the allegation in the complaint, that the sheriff suffered and permitted the escape, is sustained, when it appears that he did not prevent it.</p> <p>A charge, in the complaint in an action for an escape, that the sheriff, against the will of the plaintiff, illegally suffered and permitted the judgment debtor to escape and go at large, out of his custody, merely means that he did not prevent Mm from doing so. It does not necessarily import, or involve the allegation, that he in fact actively consented to the escape, or had any actual knowledge of it.</p> <p>The answer, in such an action, after setting forth proceedings before the county court for the discharge of the judgment debtor from 'imprisonment, and the granting of an order for his discharge, alleged that the defendant "in obedience to the requirements of said court, and not otherwise, permitted said B. to go at large, as he lawfully might, and as he was,by law required to do; which is the same escape,” &e. Held that the answer was in the ordinary form, and the words used were to be understood according to the subject matter*. That the answer conceded only such a pei'mission as the complaint imported, viz., an omission to prevent the escape; and did not necessarily furnish a contradiction to statements made by the sheriff and under sheriff, in a subsequent action upon the bail-bonds, that they had no actual knowledge of, and did not consent to, the departure of the debtor from the limits, and did not hear of it till the sheriff was sued for the escape.</p> <p>A judgment in favor of the plaintiff, in an action against the sheriff for an escape, conclusively establishes, in a subsequent action by the shei’iff, upon the bail-bond, that the judgment debtor has escaped from the limits without having been discharged by due course of law.</p> <p>Besides the general rale that where a pai’ty who is bound to indemnify the defendant in an action, and who receives notice of and has an opportunity to defend, the action, is bound by the judgment therein, the statute provides that where a sheriff, on being sued for an escape, gives notice of the suit to the bail, the judgment recovered therein against the sheriff shall be conclusive upon the bail, as to any defence which might have been made by the sheriff, in such suit.</p> <p>A recovery against the sheriff in an action for an escape, is evidence of the damages sustained by him, in the same manner as though the judgment had been collected.</p>

<p>The complaint, in an action upon an account, alleged that between the 28th of May and the 23d of July, 1870, “ the plaintiff, at the request of the defendant, furnished him with board and lodging for himself, his servants and employees, and furnished the defendant, at like request, with divers large quantities of divers liquors, ales and cigars, by the glass, bottle and box, and loaned and advanced to him divers sums of money, amounting in the aggregate, for said wines, liquors, board, lodging and money advanced, to the sum of §1,015.” * * * “That the defendant has paid, on said account, by notes and checks, §851.66, leaving due and unpaid, thereon, the sum of §103.45, with interest,” &c. Held that here was a distinct admission on the record that the payments were made on the general account, including the liquor, and an attempted application thereof by the plaintiff to the whole account, and the balance claimed to be due was the balance of the whole account. And that the attempt of the referee, by finding in the plaintiff’s favor, to separate the legal from the illegal items of the account and apply the payments wholly to the illegal items, was erroneous, and wholly at variance with the plaintiff’s claim as made by himself.</p> <p>Held, also, that the evidence, irrespective of the pleading, did not justify any such finding, although the plaintiff testified, in a general way, that the note and checks were given in settlement of the liquor account; and that the facts and circumstances attending the transaction did not import a separation of the items of the account and the giving of the note to apply on so much as was for liquor alone, but a payment on general account.</p> <p>Held, further., that it was too late, on the trial, and especially after the deliberate admissions and allegations on the record, for the plaintiff to undertake to withdraw these payments from the general account, and credit them solely against so much of it as was for liquor sold in violation of law.</p> <p>Held that the payments credited r-hould be applied, in the first instance, to the valid indebtedness; and as the payments largely overpaid any such indebtedness, the plaintiff was not entitled to a report in his favor.</p> <p>It is well settled that where an account or claim consists of items, or where there are several debts claimed, some of which are legal charges and others illegal, a general payment must be imputed and applied to the legal, to the exclusion of the illegal charges—to debts lawfully due, and not to unlawful claims.</p>

BILL of exceptions taken on a nonsuit at the Lewis county circuit, and ordered to the General Term in the first instance. ' I. The general railroad act (Laws of 1850, ch. 140, § 16; amended Laws of 1854, ch. 282, § 3; amended Laws of 1864, ch. 582, § 4) defined the duties of the commissioners: “They shall view the premises described in the petition, and hear the proof and allegations of the parties,” * * * and “ascertain and determine the compensation which ought justly to…

APPEAL Tby the defendant from a judgment entered at a Special Term, on a trial before Justice Hardin, without a jury.

THIS action was brought upon an order in favor of the plaintiffs, drawn by one Starring upon the defendant, for $100, as foEows: “Illicit, H. Y., June 14,1871. George Berry, pay to Lewis & Pelton one hundred doEars and charge to my account.

APPEAL, by the plaintiff, from a judgment entered upon the report of a referee. Held: “That a receipt may be explained or even contradicted by any evidence competent to establish a fact, is a proposition settled by judicial decisions, which are too numerous and too uniform to justify a re-examination of the principles on which it is founded, or a reference to the authorities in its support.

PPBAL by the defendant from a judgment directed at a Special Term, on a trial before the court, without a jury.

aAHIS is an action to recover damages for an injury - to the plaintiff’s canal boat, caused by a collision with the defendants’ boat, in the Erie canal. The action was commenced in a justice’s court, where the plaintiff recovered a verdict for $52.80. The case was then. appealed to the county court of Herkimer county, where a new trial was had, and the plaintiff nonsuited.

<p>APPEAL by the defendant from a judgment entered upon the report of a referee.</p>

<p>APPEALS from judgments entered upon the reports of a referee, in the above cases, respectively.</p>

<p>G. and the plaintiff were indebted to W, upon a judgment for $461.13, recovered upon a promissory note of which G. was the maker and the plaintiff an accommodation endorser. The judgment had been entered up against the maker alone, upon the promise of the plaintiff that he would see that an execution issued upon it was collected. The plaintiff and defendant thereupon, on the 12th of September, 1870, entered into an agreement that the former should pay said debt in full, and the latter would pay the plaintiff the amount advanced by him, in groceries out of his (the defendant’s) store, as the plaintiff might want the same. Pursuant to said agreement, the plaintiff paid $61.13, on the judgment, and a note for the balance, $400, was made by G. and endorsed by the plaintiff and the defendant, which the plaintiff subsequently paid. The defendant paid him, in groceries, towards such advance, the sum of $300.67, leaving still due to the plaintiff $187.71. Held that the plaintiff was entitled to recover that sum of the defendant.</p> <p>Held, also, that the plaintiff and defendant being both endorsers on the $400 note, the agreement was one between them in respect to their relative liabilities on such note; and was an original and independent agreement between them, entirely outside of the statute of frauds. .</p> <p>That the promise of the defendant was not collateral to the original indebtedness of G., and did not propose to pay his debt, upon his default, to his creditor; but the agreement was that if the plaintiff would pay the note endorsed by both the plaintiff and defendant, the defendant would repay him the amount so advanced.</p> <p>Held, further, that the plaintiff’s agreement absolutely to take up the $400 note, at maturity was, under the circumstances, a sufficient consideration for the defendant’s promise to reimburse him for such payment.</p>

APPEAL by the plaintiff from a judgment, dismissing the complaint, entered on the decision of the court, at the circuit, on a- trial before the court without a jury. The action is to recover the sum of $5,000, upon a written instrument, signed by the defendant, with other persons, of which the following is a copy, namely: “Buffalo Fruit House Association.

<p>To an action upon a bond given by the defendant to the plaintiffs as security that F., whom the plaintiffs had appointed their agent to sell sewing machines, should account for, and pay over, to them, the proceeds of all sales, it is no defence that F. had partner’s and others interested with him in selling the machines.</p> <p>■ The fact that F. had partners, will not affect his personal liability (or that of the surety) for machines personally ordered by him; where it appears that the plaintiffs, although they knew that F.. had partners, never recognized the latter as their agents, or delivered machines to any one but F., or upon his order; and his written power of attorney was never revoked or discharged.</p>