Volume 64 — New York Reports

<p>An assignee for the benefit of creditors of an insolvent copartnership, the representatives of a deceased partner, and the surviving partners may properly be joined as parties defendant, and an action may properly be brought against them by a creditor of the firm, to compel the assignee to account and pay over to plaintiff his share of the proceeds of the partnership property, and (it being alleged in the complaint that the surviving partners are insolvent) to recover of the representatives the balance of plaintiff’s claim. (Allen and Eabl, JJ., dissenting.)</p> <p>Grant v. Shuster (1 Wend., 152) distinguished.</p> <p>It seems, it is not necessary in such an action that the other creditors should be made parties, or that the action should be brought in their behalf.</p> <p>Even if it were necessary, when it does not appear upon the face of the complaint that there are other creditors, this is not a good ground for demurrer.</p>

This action was brought against defendant as surviving partner of the firm of Bevier & Co., for the alleged negligence of defendant’s firm causing the death of Thomas Malone, plaintiff’s intestate. Said firm were carrying on a brewery in the city of Boch ester and Malone was employed therein as a laborer. The partners themselves personally superintended and managed the business.

This action was brought to recover damages for injuries alleged to have been caused by the negligence of defendant.. The plaintiff, a child a little over five years of age, resided with his parents in a tenement-house on First avenue in the city of New York. They occupied rooms on the first floor above the street, and nearly on a level with the back yard, with which they communicated. A flight of stairs led to the street.

The complaint alleged in substance that the board of county canvassers for the city and county of New York, by a resolution of said board, passed May 30, 1870, designated the New York Official Railway News, a newspaper of which plaintiff was the proprietor, as a paper in which the results of an election held in said city and county May 17, 1870, should be published, and authorized the publication.

(Reported below, 2 Hun, 55 ; 4 T.'fe C., 282.) This action was brought by plaintiff as assignee of the lessee under one of the Van Rensselaer “ manor leases,” so called. The court found in substance as follows : Defendant Van Rens~ selaer obtained judgment against plaintiff in July, 1863, in an action of ejectment for the non-payment of rent, reserved in the lease.

(Reported below, 7 Lans., 322.) This action was brought to restrain defendants from building upon a strip of land lying along the southerly… Held: as conclusion of law, that the corner lot was not included in or controlled by the provisions of the agreement, but that the lot leased to Purssell between the corner lot, as laid out ■ on the map, and plaintiff’s, was, and directed judgment restraining defendants, their agents, etc., from building on that portion thereof lying…

(Reported below, 3 Hun, 720; 6 T. & C., 183.) This action was brought by plaintiffs as holders of three promissory notes made by the firm of Randall & Williams, upon a promise made by defendant to said firm, upon assignment to her of the property and assets of the firm, and as part consideration for the assignment to pay the debts of the firm. The three promissory notes, at the time of the sale and agreement, were held by ¡Nathan Randall, and were not then due.

(Reported below, 7 J. & S., 167.) The facts as stated, were, in substance, these. In October, 1872, the parties entered into a contract by which plaintiff agreed to sell certain premises in Hew York city to defendant, and to convey, in October, 1874, by warranty deed with full covenants, conveying and assuring to defendant the fee simple, free of all incumbrances. Defendant upon delivery of said deed agreed to pay the purchase-price.

(Reported below, 6 Hun, 299.) On the 24th September, 1874, in pursuance of section one, of chapter 855, Laws of 1869, as amended by chapter 260, Laws of 1874, the town officers of said town of Cornwall met to determine the amount of money necessary for highway purposes; at-which meeting a certificate in writing was executed by the commissioners of highways, the town clerk and three of the four justices of the peace, to the effect that they deemed it necessary to raise the…

This was a motion to dismiss an appeal from a judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment in favor of defendants. (Reported below, 5 Hun, 516.) The action was brought to restrain defendants from using a floating elevator for the purpose of transferring cargoes of grain from one vessel to another in the waters of Buffalo harbor.

(Reported below, 5 Hun, 105.) The affidavits upon which the motion was made tended to show irregularity upon the part of the commissioners amounting to misconduct, gross inadequacy of the compensation allowed by them, and. ignorance on the part of the owners of the application to confirm the report on account of neglect or misconduct of their attorneys.

These are cross appeals from a judgment of the General Terra of the Supreme Court in the fourth judicial department, modifying, and affirming as modified, a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury. This was an action of ejectment. In the year 183é George E. Babcock and Heman B. Potter were the owners of block number thirty-one, in the city of Buffalo.

This action was brought for the foreclosure of a mortgage given by Decker to.plaintiff upon a house and lot in the city of Hew York. The answer of defendant Yolkening, who alone defended, alleged, among other things, that at the time plaintiff’s mortgage was executed he was the equitable owner of the premises, and that before the commencement of this action the same were conveyed to him by Decker.

(Reported below, 3 Hun, 591; 5 T. & 0., 300.) This action was upon a policy of fire insurance.

(Reported below, 6 T. & C., 514; 4 Hun, 201.) This action was brought to recover the interest due upon certain bonds issued by defendant under the act (chap. 577, Laws of 1868), authorizing defendant to take stock, not exceeding $10,000, in the Long Eddy Hydraulic and Manufacturing Company, upon certain conditions therein specified, and to issue bonds to raise the money to pay for such subscription, and to levy and collect taxes for the payment of the principal and interest…

<p>The State cannot be compelled to proceed with the erection of a public building or the prosecution of a public work at the instance of a contractor therefor.</p> <p>A law of the State suspending or discontinuing a public work under contract, or providing for its performance by different agencies, is not subject to any constitutional objection because the change authorized involves a breach of the contract; the obligation of the contract is not impaired by the refusal of the State to perform it; the contractor, if not in default, has a just claim against the State for damages resulting from the breach and a remedy by appeal to the legislature.</p> <p>Accordingly held, that the act of 1874 (chap. 323, Laws of 1874), suspending the commissioners appointed under the act of 1870 (chap. 427, Laws of 1870) to construct a State reformatory at Elmira, and providing for the appointment of a superintending builder with power to contract for a completion of a certain portion of the work upon a changed plan, etc., although in effect, a refusal to proceed under the plans and contracts then existing for the work, and a violation of such a contract, was not unconstitutional, and that an action could not be maintained at the suit of a contractor to restrain the superintending builder, appointed under said act of 1874, from entering into a new contract under the authority of and in the manner prescribed by said act.</p>

(Reported below, 1 Hun, 554; 4 T. & 0., 116.) This action was brought upon three bonds issued by defendant under and in pursuance of chapter 590, Laws of 1869. The act legalizes the proceedings of a town meeting held by defendant’s electors, at which it was voted to raise money by tax to pay to each one furnishing substitutes under the call of the president of July, 1864, the sum of $200.

This action was brought against the defendants as members of the firm of J. W. Bowen & Co. to recover an indebtedness of said Bowen to plaintiff’s testator, which, as alleged in the complaint, the said firm had assumed and agreed to pay in consideration of the transfer to the firm by said Bowen of the property and assets of his business. The facts are set forth sufficiently in the opinion, Plaintiffs had a right of action.

Plaintiff’s affidavits, upon which the order for examination was granted, after stating the commencement of the action and generally the nature thereof, the relief sought, stated that plaintiff was not able to frame his complaint and does not know the names of the necessary defendants; and that it is necessary for him, in order to obtain knowledge of said names and of the facts necessary to frame his complaint, that he should have an order to examine said defendants, so that…

(Reported below, 3 Hun, 329 ; 5 T. & C., 475.) This action was brought to recover damages for injuries sustained by plaintiff in consequence of being kicked off of one of defendant’s baggage cars by the baggageman. The transaction resulting in the injury occurred at Norwich, May 3, 1872. The defendant operated a broad-gauge railroad from Binghamton to Norwich and a narrow-gauge road from Norwich to Utica.

<p>A contractor for the erection of a building who subcontracts a portion of the work and reserves no control or authority over or right to direct as to the manner of performance, save generally to insist that the work be done according to the terms of the subcontract, is not liable to a third person for an injury caused by the negligent act of the subcontractor.</p> <p>Where separate and independent acts of negligence of two parties are the direct causes of a single injury to a third person and it is impossible to determine in what proportion each contributed to the injury, either is responsible for the whole injury; and this, although his act alone might not have caused the entire injury, and although, without fault on his part, the same damage would have resulted from the act of the other. Defendant contracted to erect a building on land of A. & Co., the work to be done under the direction of an architect named. Defendant subcontracted the mason work to B. & M., who contracted to cut, when directed, a recess in the wall to receive a waste pipe to convey water from the roof to a sewer. B. & M. not having received directions did not cut the recess after the roof was on, and in consequence the water from the roof, during a rain storm, ran into the cellar where it was joined by water from the street, let in through the negligence of B. & M. in constructing an area in front of the building. The water found its way through the walls into plaintiffs’ building adjoining, injuring their goods. In an action to recover damages for the injury, held, that the power given to the architect for the protection of the owner to direct was simply as to the fitness of the materials and the manner the work was done, not as to the time; that it was defendant’s duty to direct the necessary work to be done to convey off the water from the roof, and it was negligence on his part in failing to do so in proper time; that he was not liable for the negligence of B. & M. in constructing the area, but as their acts of negligence and his own united to cause the injury he was properly held liable for the whole.</p>

(¡Reported below 4 Hun, 1.) The plaintiff in error was indicted for perjury alleged to have been committed by him upon an investigation before the fire marshal of the city of Hew York as to the origin of a fire which had occurred in the said city. The indictment contained two counts, one charging perjury in the oral testimony given by plaintiff in error, the other perjury in an affidavit sworn to by him.

The complaint in this action alleged, in substance, that plaintiff’s assignor, William Feist, delivered to defendant certain money to the amount of $2,496 to be repaid on demand, with interest, defendant delivering a receipt or certificate of deposit therefor; that defendant refused to pay-on demand. The instrument delivered by defendant was as follows: “ New Yoke, February 4, 1871.

(Beported below 5 T. & O, 605 ; 3 Hun, 473.) This action was brought by plaintiff as trustee claiming under a deed in trust executed by one Joseph Fellows of his property, real and personal, to recover a balance of account for moneys loaned by said Fellows to defendant. The defence was payment, and defendant proved payment to Fellows after the execution of the trust deed. Prior to the payment an action was brought by Fellows against plaintiff to revoke the trust deed.

<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 on verdict.</p> <p>This action was upon a policy of fire insurance.</p> <p>The policy contained a clause requiring the assured in case of loss or damage by fire to deliver to defendant’s secretary, within thirty days after such loss, a particular account thereof under oath. The building insured was destroyed by fire on the 29th November, 1870. No proofs of the loss-were furnished until March 29, 1871; these were sent by plaintiff’s .attorney; defendant sent a letter in reply containing the following : “ The proof of loss is too late. It should have been made within thirty days after loss; besides, after a careful investigation of the matter, we have become satisfied that it is a clear case of fraud. The company have, therefore, rejected the claim.” Plaintiff gave evidence upon the trial to the effect that one Krouse, an adjuster for defendant, having learned of the fire and being near the premises, went to and examined them, and made inquiries as to the fire. He had received no instructions from the defendant to adjust the loss, and what he did was without plaintiff’s knowledge; that he reported his action to the company, but no action was taken by it until receipt of proofs of loss. At the close of the evidence defendant’s counsel moved for a nonsuit on the ground, among others, that proofs of the loss were not furnished within thirty days thereafter, as required by the policy, and that there liad been no waiver shown. The court denied the motion, holding that the question as to waiver was one of fact for the jury; to which ruling defendant’s counsel duly excepted.</p> <p>Exceptions were ordered to be heard at first instance at General Term.</p> <p>The full performance by plaintiff of the provision of the policy as to furnishing proofs of loss was a condition precedent to his right to recover. (Inman v. West. Ins. Co., 18 Wis., 387; Flanders on F. Ins. [2d ed.], 565, 578; Owen v. Farmers' J. S. Ins. Co., 57 Barb., 518 ; 3 Rob., 325 ; 57 N. Y., 500.) This provision was not waived. (St. L. Ins. Co. v. Kyle, 11 Mo., 278; Patrick v. Ins. Co., 43 N. H., 621; Cornell v. Mil. M. F. Ins. Co., 18 Wis., 387; Ripley v. Ætna Ins. Co., 30 N. Y., 168; Underwood v. Farmers' J. S. Ins. Co., 57 id., 500; Lyc. Ins. Co. v. Beaty, 66 Penn., 9; Busch v. Ins. Co., 6 Phila. Rep., 252.) The letter of Krouse did not create a waiver. (47 N. Y., 114; 57 id., 500; 31 How., 508; 17 N. Y., 428; Kimball v. Ham. F. Ins. Co., 8 Bosw., 495; Citizens' F. Ins. S. and L. Co. v. Doll, 6 Am. R., 360; 32 Md., 89; Edwards v. Balt. F. Ins. Co., 3 Gill [Md.], 176.)</p> <p>There was sufficient evidence to justify the court in refusing to nonsuit plaintiff. (Herron v. Peoria, etc., Ins. Co., 28 Ill., 235; Cornell v. Leroy, 9 Wend., 163; Inman v. West. F. Ins. Co., 12 id., 452; Bumpsted v. Div. M. Ins. Co., 2 Kern., 81, 92; N. Y. C. Ins. Co. v. Nat. Pro. Ins. Co., 20 Barb., 468, 475; Kendall v. Hol. P. Ins. Co., 2 T. & C., 395; Edwards v. Balt. F. Ins. Co., 3 Gill [Md.], 176.) A waiver was clearly established. (Flanders on F. Ins., 520, § 10; 541, 542, § 22; 545, 546, §§ 26, 27; Lyc. Ins. Co. v. Schreffer, 6 Wright [Penn.], 188, 191; Post v. Ætna Ins. Co., 43 Barb., 351, 365; Owen v. F. J. S. Ins. Co., 57 id., 518, 521, 522; Dohn v. F. J. S. Ins. Co., 5 Lans., 275, 277.) The question of waiver was one of fact. (Flanders on F. Ins., 531, § 10; Fireman's Ins. Co. v. Walden, 12 J. R., 514; Sheldon v. At. F. and M. Ins. Co., 26 N. Y., 460; Ripley v. Astor Ins. Co., 17 How. Pr., 444.)</p>

This action was brought to set aside an award made by the canal appraisers in favor of defendant Voorhees, on the ground of fraud and collusion, and also that as to some of the items the appraisers had no jurisdiction.

This action was brought by plaintiff as trustee of the estate of Joseph Fellows to set aside a satisfaction and discharge of a bond and mortgage, and to foreclose said mortgage. The bond and mortgage in question were executed by defendants Clarkson and wife to said Joseph Fellows, who thereafter by trust deed conveyed his property, real and personal, to plaintiff, including said bond and mortgage.

(Reported below, 8 Hun, 604; 6 T. & C., 292.) The complaint in this action alleged, in substance, the incorporation of the “ Imperishable Stone Block Pavement Company,” under the general manufacturing act (chap. 40, Laws of 1848); that said corporation became indebted to plaintiffs for work, labor and materials, and that judgments were obtained1 against it in actions upon such indebtedness, upon which judgments executions were issued and returned unsatisfied; that defendant,…

(Reported below, 3 Hun, 351; 5 T. & 0., 490.) This action was ejectment, brought originally by David H. Jones, to recover a strip of land claimed by each party (they being adjoining owners) to belong to his farm. The question was simply as to the location of the boundary line. The original plaintiff having died after judgment, the present plaintiffs, his heirs at law and administrators, were substituted. The facts sufficiently appear in the opinion.

The nature of the action and the facts are set forth sufficiently in the opinion. Ho recovery can be had because the preliminary articles filed were not in compliance with the statute. (32 Ind., 169, 194; 43 id., 265; People v. Van Valkenburgh, 63 Barb., 105-109; 58 N. Y., 400; 20 id., 159; 24 Barb., 395; 32 id., 625; 16 Wend., 605; 1 Sandf. Ch., 179; 1 Cai. Cas., 94; 31 Barb., 258; 25 N. Y., 208; Grand Trunk v. Cook, 29 Ill., 237; Ind.

This was an action of ejectment, brought to recover possession of certain premises situate in the town of Deer Park, Orange county. The plaintiff claimed title by virtue of a sale under two executions, issued upon judgments against one Samuel Fowler. After the rendering of the judgments, and before the executions were issued, Fowler died, in 1861, seized of the lands in question.

(Reported below, 3 Hun, 724; 6 T. & C., 108.) This action was upon a policy of life insurance issued by defendant upon the life of plaintiff’s wife for $3,000, payable to plaintiff. The policy contained a clause forfeiting it in case of nonpayment of premiums at or before the time specified therein. The amount insured was to be paid in sixty days after proof of death. The premiums were to be paid quarterly.

<p>Appeal from order of the General Term of the Supreme Court, in the first judicial department, reversing a judgment in favor of plaintiff, entered upon a verdict and granting a new trial. (Reported below, 1 Hun, 310.)</p> <p>The nature of the action and the facts are set forth sufficiently in the opinion.</p> <p>The court properly refused to charge as requested. (10 N. Y., 489, 499; 11 id., 679 ; 43 id., 216; 2 Abb. Ct. App. Dec., 480.) In finding the verdict for plaintiff, the jury necessarily found that the carriage and horses belonged to him, and so necessarily found defendant guilty of willful falsehood, and the maxim “ falsus in uno, falsus in omnibus ” applies. (29 N. Y., 471, 492 ; id., 523, 528-531; 40 id., 1, 2-44; id., 172; 1 Hun, 307; 4 Barb, 571, 587; 55 id, 293, 296-297.) No error was committed which called for a reversal of the judgment. (14 Barb, 259, 303, 310, 376; 6 id, 436; 3 Hill, 287-288; 7 Wend., 160; 35 Barb, 651-652; 15 N. Y., 409, 413; 16 id, 407, 412, 413; 47 id, 286; 13 Barb., 510, 521; 34 id., 358, 360-361.) The General Term erred in granting a new trial. (13 Barb., 520; 2 id., 216; 16 id., 386, 391 ; 2 Comst., 193.)</p> <p>It was not error for the General Term to grant a new trial. (Quarman v. Burnet, 6 M. & W., 449, 509, 510; Hughs v. Boyer, 9 Watts, 556 ; Weyiant v. N. Y. and H. R. R. Co., 3 Duer, 360; Story on Agency [7th ed.], §§ 453 a, 453 b.)</p>

(Reported below, 2 Hun, 31.) This action was brought upon a promissory note made by the firm of Morss, Reed & Co., of which firm defendants were the partners. The note was dated January 2, 1865. On the 25th January, 1867, defendant Gleason (who alone appeared and answered), with the assent of his copartners, sold and assigned his interest in the firm to one Baker, who assumed his liabilities and was received into the firm in the place of Gleason.

(Reported below, 3 Hun, 575.) This action was brought upon a promissory note made by defendant, payable to the order of Frederick Lambert, who was at the time one of the firm of Lambert & Lincoln. The note was made for the accommodation of said firm and was discounted by the Uorth River Bank and the proceeds passed to the credit of the firm. Soon after the firm was dissolved, Lincoln agreeing to settle up the firm business.

<p>Appeal from order of the General Term of the Supreme Court in the third judicial department reversing a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term and granting a new trial. (Reported below 3 Hun, 345; 5 T. & C., 484.)</p> <p>This action was brought under the thirtieth section of the national banking act (H. S. R. S., § 5198) to recover twice the amount of interest paid upon three notes, which were renewals of a former note, and for twice the amount of excess paid upon a fourth renewal. The notes were all made payable with interest. The court found that upon each renewal defendant charged and received twenty dollars in addition to the interest secured by the notes.</p> <p>The court directed judgment for twice the amount of the entire interest paid upon the three renewal notes and twice the twenty dollars paid in excess upon the last renewal.</p> <p>Plaintiff was entitled to recover hack twice the amount of the interest paid. (Nat. Curr. Act, § 30; § 5198 R. S. of U. S ; 3 R. S. [5th ed.], 72, § 1; Barker v. White, 3 Keyes, 495 ; Macoss v. Liverpool, etc., Ins. Co., 35 N. Y., 326; Loeshich v. Baldwin, 38 id., 326.) Section 30 of the national currency act (§ 5198 of the R. S. of the U. S.) is in full force in this State. (F. and M. Nat. Bk. of Buffalo v. Deering, U. S. Sup. Ct.; Tiffany v. Nat. Bk. State of Missouri, 18 Wall., 409.)</p> <p>This action cannot be maintained. (Brown v. Second Nat. Bk. of Buffalo, 72 Penn. St., 209.) Plaintiff could recover only one penalty for all acts committed. (Sturgess v. Spofford, 45 N. Y., 446; Fisher v. N. Y. C. and H. R. R. R. Co., 46 id., 644; Foote v. N. Y. C. and H. R. R. R. Co., 50 id., 693.)</p>

This action was for work and labor. The defence was coverture. Defendant was a married woman, but lived separate and apart from her husband. She had a separate estate and supported herself and her children with the rents and profits. Her husband did nothing for her support. Plaintiff was a seamstress and was employed by defendant to make dresses for her and her children.

(Reported below, 4 Hun, 703.) The referee found the following facts among others : That on the 16th day of May, 1872, the defendants Henry Deal and Mary C. Greene conveyed by warranty deeds, bearing date on said day, the premises mentioned and described in the complaint, to Amos S. Brown, subject to certain liens, among them plaintiff’s mortgage; and said Brown, to secure the payment of a portion of the purchase-price thereof, made and executed two mortgages bearing even…

This was an action of trespass. The complaint alleged that defendants with force and arms broke and entered plaintiff’s dwelling-house, disturbing him and his family, breaking the hinges and locks of the doors and assaulting plaintiff’s wife and children and otherwise injuring him.

entered upon the report of a referee. This action was upon a joint and several promissory note made by defendant and one Mott, payable to William S. Wright (plaintiff’s intestate) or bearer. Defendant signed as surety in fact for Mott, of which the payee had knowledge.

(Reported below, 4 Hun, 133.) This was an action upon a policy of life insurance, issued by defendant in March, 1870, on the life of Valentine Boos, plaintiff’s assignor, and also to recover a payment of premium made after the death of the insured. Boos died abroad. Plaintiff paid the last premium after his death, the company promising to pay it back if he was dead. The defence was breaches of warranty.

This action was brought by plaintiff as assignee in bankruptcy of the firm of Tremain & Bro., to recover moneys alleged to have been paid by his assignors to defendant in excess of legal interest on various loans; to have a promissory note made by the bankrupt firm and delivered to defendant upon an alleged usurious loan, surrendered up and canceled, and to compel defendant to deliver up certain promissory notes, alleged to have been transferred to him by said firm as…

¡Reported helow, 7 J. & S., 307.) This action was brought to recover a sum fixed, as liquidated damages for breach of a covenant. The defendant, George Hoffman, had, prior to ¡M¡ay 1,1871, been engaged in a retail business in the city of New York, as a dealer in meat, fish, vegetables and provisions.

<p>It is the duty of a common carrier, not only to transport, but to deliver or offer to deliver, goods to the consignee within a reasonable time. Where the consignee is unknown, a reasonable and diligent effort to find and notify him of the arrival is a condition precedent to a right to warehouse the goods. If such effort be not made the carrier is liable for the damages resulting from the neglect.</p> <p>The measure of damages is the difference in the value of the goods at the time and place they ought to have been delivered and the time of their actual delivery; in fixing the time when delivery should have been made, where there is no charge of negligence in transportation, a reasonable time after arrival should be allowed for delivery.</p> <p>In the case of the transportation of property over several railroads constituting a connecting line, neither company is agent of the owner; each exercises an independent employment as a contractor with the owner and is responsible for its own negligence, and it cannot make the owner responsible for the negligence of a connecting road.</p> <p>It seems, that if, in an action for negligence, tried by a referee, an express finding of fact that defendant was guilty of negligence is necessary to uphold a judgment, a finding to that effect, although included in the conclusions of law, is sufficient.</p> <p>Certain bales of cotton owned by plaintiffs were shipped at C., consigned to “Byron Sherman,” Hew York. They were delivered to defendant at A., by a connecting line, with a freight bill in which was stated the number of and the marks upon the bales, but the consignee’s name was given as “ Ryan Sherman.” The cotton was transported by the defendant to New York; the name of the consignee was changed by it in its entries and bills to “Ryan <& Sherman.” Not finding such a firm defendant warehoused the cotton. Byron Sherman called at defendant’s freight office in New York, about the time of the arrival of the cotton, and several times thereafter, with the bill of lading containing the number of bales and marks thereon which he exhibited, and inquired for the cotton, but could obtain no information. .In an action for negligence, held, that plaintiff was entitled to recover; that the evidence was sufficient to justify a finding that the delay and consequent injury was caused solely by defendant’s mistake; that while defendant was only chargeable with its own negligence plaintiff could not be made responsible for the negligence of the connecting line.</p>

(Reported below 2 Hun, 475; 5 T. & G, 427.) This was an action of ejectment to recover possession of 100 acres of land in Livingston county, part of the “ Pulteney estate ” so called. (For the general history of the title under which plaintiff claimed, see 3 Seld., 305; 41 If.

(Reported below, 4 Hun, 427.) This action was brought to recover damages for an alleged breach of contract made by defendant with plaintiffs, by which defendant agreed to pay plaintiff (James Wolstenholme) a certain salary and certain dividends of stock as compensation for his services as superintendent of defendant.

This action was brought by plaintiff to establish an alleged trust in its behalf in certain real estate, and to restrain defendant from the use and occupancy, and from interfering with plaintiff’s use and occupancy.

(Reported below, 3 Hun, 450; 5 T. & C., 664.) This action was brought for the conversion of certain United States bonds.

This action was brought to compel a specific performance of an alleged parol contract for the sale of land.

(Reported below, 6 Hun., 632.) This action was brought to enforce an alleged right of plaintiff, as junior mortgagee, to be subrogated to the rights of a prior mortgagee, under a mortgage executed by defendants.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department affirming a judgment in favor of plaintiffs, entered upon the report of a referee.</p> <p>This action was brought by plaintiffs as forwarders to recover charges and advances on a quantity of marble received and shipped by them for defendant.</p> <p>Plaintiffs were engaged in business as forwarders at Troy, H. Y. In the fall of 1865 they received by railroad a quantity of marble consigned to them, belonging to and to be forwarded to defendant at Philadelphia, and they paid the charges, procured a canal boat to transport the same, on which the marble was shipped, and advanced to the captain seventy-five dollars on the freight. The boat proceeded to Albany to be there taken in tow. One of the plaintiffs learning that it was there delayed, went to Albany to ascertain the cause. He found that the proprietors of the only tow-boat company who would tow the boat had refused so to do unless the captain would pay an old bill of seventy-five dollars and would advance the charge ($100) for towing the boat. The captain not being able to pay, had gone home to procure the money, and as he had not returned, the tow was about to proceed without his boat. Plaintiffs thereupon advanced the sum claimed. The boat was then put in the tow and other boats lashed to her stem, but so improperly fastened that in swinging around, her stem was torn off and she sank. This was the last tow of the season.</p> <p>In a letter written by plaintiffs giving an account of the loss, it was stated that one of them had determined to go to Hew York, overtake the boat, and see her through, paying her bills if necessary. Defendant had written prior to the shipment, urging haste. One letter contained the following: “ I do not mean to limit you in the freight so as to prevent shipping in good season. * * * Am anxious to get my marble through before ice makes, and will expect you to do the very best you can for me in. the way of freights, dispatch, etc.”</p> <p>Further facts appear in the opinion.</p>

(Reported below, 3 Hun, 587; 6 T. & C., 331.) This action was upon a policy of' life insurance issued by defendant upon the life of one Charles A. Starr to one Samuel W. Leddell, a creditor of Starr’s, and plaintiff’s assignor. The policy was dated October 28, 1869, premiums payable annually.

(Reported below, 4 Hun, 495.) The objections were that the two sewers, entirely disconnected, were embraced in one contract, and a single assessment made. Also, that the corporation had acquired no title to Ninety-first street, and had no authority to build a sewer there. The facts sufficiently appear in the opinion. There never has been a dedication of the land of the street to the city.

This action was brought to recover back money paid by plaintiffs to defendant, upon an altered sight draft drawn upon plaintiffs by their correspondent in Buffalo. — The draft was drawn for the sum of twenty-seven dollars. After its delivery to the payee, and before presentation and acceptance, it was altered so as to change the amount to $2,750. It was sent by one Horton, of Baltimore, to Austin Baldwin & Co., New York, and,,received by them August 16, 1869.

(Reported below, 5 Hun, 157.) This action was brought to recover damages for trespass upon lands claimed by plaintiff, being the shore in front of Beach avenue, on Long Island Sound, and to restrain defendant from removing sand from said premises. A temporary injunction was granted restraining such removal and restraining any interference with or disturbance of the same.

This was an action of ejectment, to recover possession of certain premises situate in Steuben county.

(Reported below, 7 J. & S., 339.) This action was brought to recover the purchase-money unpaid under a contract for the purchase and sale of lands.

This action was brought to recover a balance alleged to be due of the price agreed to be paid upon the transfer from plaintiffs to defendants of the capital stock of a corporation. The question .was as to whether the sale was made to the defendants jointly or to the defendant Bramhall, the other defendants, composing the firm of Clews, Livermore & Co., claiming to have acted simply as agents for Bramhall.

(Reported below, 2 Hun, 521; 4 T. & 0., 597.) This action was brought against defendant, an innkeeper, to recover for the loss of plaintiff’s horses, carriage, harness, etc., which were burned up in defendant’s barn, plaintiff being at the time his guest. The defence attempted to be established was that the fire was the work of an incendiary, and that it occurred without defendant’s negligence.

• (Reported below, 7 J. & S., 40.) This action was upon a joint and several bond executed by defendants to the plaintiff upon the employment by the latter of defendant William E. Barnes.

<p>Appeal from judgment of the General Term of the Superior Court of the city of New York affirming a judgment in favor of plaintiffs, entered upon a verdict. (Reported below, 6 J. & S., 431.)</p> <p>This action was brought upon the following contract, signed by defendant:</p> <p>“New Yobk, August 28, 1872.</p> <p>“ $20,000.</p> <p>“ I have bought of Levy & Borg twenty thousand dollars of Alabama and Chattanooga railroad first mortgage eight per cent bonds, indorsed by the State of Alabama, numbers-to run below four thousand, July, 1872, coupons on, at eighty and one-half cents on the dollar, payable and deliverable in thirty days from date, fixed 1 flat,’ with interest at the rate of per cent per annum, either party having the right to call for deposits of ten per cent during the pendency of this contract.</p> <p>“O. A. BURGESS.”</p> <p>The parties agreed upon the time and place of performance, to wit, 12 o’clock, at noon, at plaintiffs’ office. Defendant’s evidence was to the effect that upon the day when the contract matured, at the hour fixed, he called at plaintiffs’ office to receive and pay for the bonds; he was informed by one of the defendants that they had not got the bonds; that the person from whom they bought had tendered bonds which they had refused to accept, because they were not properly indorsed by the State of Alabama, the governor of that State not having signed the indorsement as governor, but only in his own name. Defendant called again at one o’clock and was informed the plaintiffs had not the bonds. He then told them that they might, up to quarter past two, deliver the bonds to Meserole & Trumbull, defendant’s brokers, if they were signed by the governor as governor. Said firm were authorized by defendant to accept and pay for the bonds if so signed, but not otherwise. Plaintiffs had contracted with one Hoenig for the bonds. The indorsements upon a portion were as follows":</p> <p>“ In pursuance of certain acts of the general assembly of the State of Alabama, namely, an act approved February 19, 1867, entitled ‘An act to establish a system of internal improvements in the State of Alabama,’ and an act approved September 22, 1868, entitled ‘ An act to amend the law to establish a system of internal improvements in the State of Alabama,’ and an act approved November 17, 1868, entitled ‘An act relating to the Willis Valley Bailroad Company, and the North-east and South-west Alabama Bailroad Company.’</p> <p>“ The State of Alabama hereby indorses this bond, and becomes liable for the payment of the principal and interest thereof, the Alabama and Chattanooga Bailroad Company having complied with the conditions upon which the undersigned, governor of the State of Alabama, is required, on the part of the State, to give such indorsement.</p> <p>“In witness whereof, the undersigned, governor of the State of Alabama, has hereto set his hand, and caused [l. s.] to be affixed hereto the seal of the State of Alabama, this first day of January, a. d. 1869.</p> <p>“ W. H. SMITH.”</p> <p>Plaintiffs agreed to accept them if accepted by Meserole & Trumbull, and Hoenig, upon this agreement, authorized a tender of them, and went with one of plaintiffs, about two o’clock, to the office of said brokers for that purpose, where a tender was made, but they refused to accept because not signed as required by defendant’s instructions to them, which they stated as the reason for refusal. The bonds were handed back to Hoenig, who retained them until October seventh, when they were taken by plaintiffs. The bonds were subsequently sold at a price below the conti'act-price, and this action was brought to recover the deficiency.</p> <p>At the close of the evidence, defendant’s counsel moved to dismiss the complaint, on the ground that no tender had been proved, which motion was denied, and said counsel duly excepted. Said counsel requested the court to submit to the jury the question, among others, whether a tender had in fact been made. This request was denied, and the court directed a verdict for plaintiffs for the amount of the deficiency, to which defendant’s counsel duly excepted.</p> <p>A tender of bonds by plaintiffs on September 27, 1872, was necessary to establish a cause of action. (Nelson v. Plimp. F. P. E. Co., 55 N. Y., 480; Williams v. Healy, 3 Den., 363; Baker v. Higgins, 21 N. Y., 397; 2 Smith’s L. C., 8 ; Glazebrook v. Woodrow, 6 T. R., 366.) The tender made was not good because plaintiffs did not own or have possession of any bonds to tender. (Champion v. Joslyn, 44 N. Y., 653; Kortright v. Cady, 21 id., 343, 354; Hume v. People, 8 East, 168; Bklyn. Bk. v. Degraw, 23 Wend., 342; Wilder v. Seelye, 8 Barb., 408; Knight v. Beach, 7 Abb. Pr. [N. S.], 241.) The court erred in excluding evidence to show that the contract was made with reference to bonds signed by “ W. H. Smith, governor,” and no others. (Freeland v. Burt, 1 T. R., 201; Greenl. on Ev., § 286; Cary v. Thompson, 1. Daly, 35; French v. Carhart, 1 N. Y., 96, 102; Moore v. Meacham, 10 id., 207, 211; Chester v. Bk. of Kingston, 16 id., 336; Hinneman v. Roserback, 39 id., 98; Field v. Munson, 47 id., 221.)</p> <p>The proceedings for the sale of the bonds and the sale were regular. Plaintiffs were not obliged to give defendant notice. (Dustan v. McAndrew, 44 N. Y., 72; 10 Bosw., 130; Hayden v. Demets, 53 N. Y., 426; Pollen v. Le Roy, 30 id., 549; Lewis v. Greider, 49 Barb., 606.) The tender of the bonds was sufficient. (Champion v. Joslyn, 44 N. Y., 653.) Defendant, having declined the tender and stated the ground of his refusal, is bound thereby, and cannot now claim an advantage from any other alleged informality. (Benj. on Sales [1st Am. ed.], § 716; Carman v. Pultz, 21 N. Y., 547, 561; Gould v. Banks, 8 Wend., 562.)</p>

This action was brought to restrain the sale upon execution of certain premises in the city of New York owned by plaintiff Henry M. Barnes, and to have the lien of the judgment upon said premises discharged; also to restore the lien of a mortgage upon said premises alleged to have been satisfied by mistake.

<p>The board of public works of the city of E. passed an ordinance providing for the deepening and enlarging of a sewer, by enlarging a portion, constructing a tunnel under a race and deepening another portion. Bids were advertised for and received which were so much per foot f or “ open cut” and so much for tunneling. The contract was awarded to S., a portion to be “open cut” and the portion under the race tunneled. The board subsequently resolved that the work should be entirely tunneled, and a contract was entered into with S., without a readvertisement, at the figures in his bid, which were five dollars per foot more for tunneling than for “ open out.” In an action brought by persons assessed for the sewer, wherein judgment was obtained restraining the payment of any money for tunneling, save for the portion under the race; held, that the contract entered into was authorized by the ordinance, as the provision for deepening included any mode by which the work could be accomplished which the board, in the exercise of a reasonable discretion, should deem proper; that as the petition presented did not designate any particular mode of doing the work, there was no violation of the provision of the act of 1872 amending the city charter (§ 7, chap. 771, Laws of 1872), conferring upon the owners the right to designate the kind of improvement; that having complied with the provision of said act (§ 8), requiring advertisements for proposals, the board was not required to advertise again, but had the authority to make the change before a contract in writing was entered into, and to adopt the proposal for tunneling in the accepted bid.</p> <p>Also, held, that the action could not be maintained by the plaintiffs, as by the provision of the charter of 1861 (§ 207, chap. 108, Laws of 1861), in ease a greater amount was assessed and collected than was required for the improvement it was to be apportioned by the council and paid to the owners of property assessed, the remedy of plaintiffs was complete against the common council, not against the commissioners; that the case was not brought within the provision of the act of 1872 (chap. 161, Laws of 1872), providing for the prosecution of municipal officers at the suit of a resident tax-payer to prevent waste, etc., as there was no claim that the commissioners were liable to waste the fund, and as that act was intended to provide for cases where the remedy was doubtful, not to a case where the statute directly points out a mode of relief.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department in favor of plaintiff, entered upon an order denying motion for a new trial and directing judgment upon a verdict. (Reported below, 6 T. & G, 653.)</p> <p>This action was upon a promissory note made by defendants, to the order of the plaintiff, payable at four months at the Genesee Valley National Bank.</p> <p>The defence was that the note was given for ten tons of “XX pipe iron,” which defendants bought of plaintiff, to be used in making castings for agricultural implements, in the manufacture of which defendants were engaged at Fowler-ville, in this State. The iron was shipped to, and received by the defendants, and, without making any test or examination of it, it was mixed with other varieties of pig-iron and converted into such castings. The iron so purchased of plaintiff was so rotten and worthless that the castings made from it were valueless, and the defendants were put to great expense in the effort to use said iron, and to great loss in utter worthlessness of the machinery made therefrom. This loss and expense they set up as a counter-claim to the note.</p> <p>It appeared upon the trial that the plaintiff was a dealer in pig metals, at Elmira, and the defendants were, and had for a number of years been, manufacturers of castings for agricultural implements at Fowlerville. Prior to the 21th of January, 1869, several letters had passed between the parties as to pig-iron of various sorts, in one of which letters defendants ask plaintiff the price for “XX pipe iron.” On the twenty-eighth of January plaintiff wrote to defendants a letter, in which he acknowledged the receipt of a letter from them, and told them he could supply them XX pipe through the season, but would not fix any certain price for the same. He said he could sell XX pipe then at forty-two dollars and fifty cents, and would sell all the season that brand at the lowest figure he could. He also gave the time and manner in which he required payment. On the twenty-ninth of January defendants wrote to the plaintiff to enter their order for ten tons of XX pipe iron, and send to them at Caledonia as soon as received. On the 12th of February, 1869, plaintiff shipped to defendants, as directed, ten tons branded and billed as XX pipe, addressed to them at Fowlerville. On or about the fifteenth of February, and before the iron was received, defendants sent to plaintiff their note for the amount of the bill. It did not conform entirely to the terms of sale, and plaintiff returned it to defendants, who corrected the error and returned the same to plaintiff. A few days thereafter the iron was received by defendants. When they came to use the castings made, they were found to be brittle and worthless, and, on examination, the XX pipe iron was found to be brittle, rotten and worthless.</p> <p>Five tons of the XX iron were used before its worthlessness was discovered, and then defendants wrote to plaintiff complaining of the injury done to them by reason of the bad quality of the iron sold to them, refusing to use any more of it and offering to return what remained unused. The iron in question was manufactured at a furnace in Pennsylvania, and purchased by plaintiff to be sold by him. He had none on hand when he received defendants’ order, but ordered it from the manufactory, received and shipped it as “XX pipe iron.” The quality of pig iron cannot be ascertained by merely examining it externally. There are two tests by which to determine the quality. One is melting it; the other, breaking the pig so that the internal surface may be examined, and from the appearance of that surface a person acquainted with pig-iron could determine its quality quite accurately without using it. The iron sent to defendants was not broken and examined, and the effect of it upon the castings was not ascertained for several weeks, as defendants cast a large quantity before they prepared them for use.</p> <p>There was some conflict in the evidence as to whether the iron was, in fact, “ XX pipe.”</p> <p>Counsel for the defendants asked permission to go to the jury upon the questions of the market value of the' iron in question1; as to whether the iron was worth any thing for the purposes of the defendants’ business, and as to whether there was not a warranty on the part of the plaintiff, express or implied, that the iron shipped upon the order of defendants was fit and suitable for use in the manufacturing business of the defendants. The court declined to grant the requests; to which ruling and(ffecisioip counsel for the defendants duly excepted.</p> <p>, The court directed a verdict for plaintiff for the amount of the note. Exceptions were ordered to be heard at first instance at General Term.</p> <p>Plaintiff was liable the same as if he were a manufacturer of the iron to a warranty, not only that it was XX pipe iron, but that it was suitable for manufacturing defendants’ castings. (Beals v. Olmstead, 24 Vt., 114; Story on Con. [2d ed.], § 836; Sedg. on Dam. [4th ed.], 333, note; 2 Kent’s Com. [10th ed.], 660; Hawkins v. Pemberton, 51 N. Y., 198; Hoe v. Sanborn, 21 id., 552; Gurney v. A. and G. W. R. Co., 58 id., 358; Jones v. Bright, 5 Bing., 533; Brown v. Edgington, 5 M. & G., 371; Muller v. Eno, 14. N. Y., 597; Day v. Pool, 52 id., 416 ; Bradford v. Marley, 13 Mass., 144.) Evidence of defendants’ damages by reason of the breach of plaintiff’s warranty was competent. (Parks v. Morris Ax and Tool Co., 54 N. Y., 586; Passinger v. Thorburn, 34 id., 634.) Defendants are not chargeable with contributory negligence in using the iron without testing it. (Bk. of Kingston v. Eltinge, 40 N. Y., 391; Dounce v. Bow, 57 id., 16.)</p> <p>The contract was executory, and it was defendants’ duty to test and examine the iron as soon as received. (Hargous v. Stone, 5 N. Y., 86; Beck v. Sheldon, 48 id., 365; Dutchess Co. v. Harding, 49 id., 323; Reed v. Randall, 29 id., 362; Gaylord Mfg. Co. v. Allen, 53 id., 515; Gurney v. A. and G. W. R. Co, 58 id., 364.) Xo warranty can be implied from the fact that plaintiff knew defendants’ business and that they wanted the iron to use in it. (Bartlett v. Hopkins, 34 N. Y., 118, 122, 125 ; Beck v. Sheldon, 48 id., 365; 5 id., 86; 29 id., 362; Hoe v. Sanborn, 21 id., 557.) Defendants were not entitled to be compensated for the damages of which they complain. (Passinger v. Thorburn, 34 N. Y., 634; Milton v. H. R. Stbt. Co., 37 id., 210.)</p>

<p>In an action of ejectment, plaintiffs gave in evidence a judgment roll in a former action of ejectment brought by the grantor of plaintiffs’ ancestor against defendant to recover the same lands wherein it was adjudged that said grantor was entitled to possession—hM, that said roll was conclusive proof of the right of possession in said grantor; that the statutory right of redemption for six months after execution of writ of possession (2 B. S., 506, §§ 33, 34), did not vary its effect as evidence in subsequent suits between the parties, or their privies, of what was adjudicated; and in the absence of proof, that the right so adjudicated did' not still exist, plaintiffs, on proof that they had succeeded to that right, were entitled to a judgment for the recovery of possession.</p> <p>The complaint in the former action claimed a title in fee, alleging a grant in fee of the lands in question to defendant’s grantor, with a charge upon them of a yearly rent in perpetuity to the grantor in said grant, his heirs and assigns, with clauses, that, in case of non-payment, the grantor might re-enter, have, repossess and enjoy the former estate and expel the grantee, and that the indenture should become void; it alleged nonpayment, and notice to defendant of the intention of plaintiff to re-enter, in pursuance of the act of 1846 (chap. 274, Laws of 1846). The answer of defendant took issue upon these averments, and the referee found in favor of plaintiffs. The referee did not find specifically what title plaintiffs had in the premises, and in the judgment entered upon the report no mention was made of plaintiff’s title, but simply an adjudication that plaintiff recover and have possession. Upon the evidence furnished by the judgment roll the court, in the second action, directed the jury to find a title in fee in the plaintiffs. Held, no error, that the interest in the rent, owned by the grantor, was an estate therein in fee simple; that, by the right of re-entry and avoidance of the lease or grant upon nonperformance of the condition to pay rent, a conditional estate was constituted in the grantor, and a right to enforce it by action of ejectment; and that upon breach of the condition, the whole estate was at law cast upon the grantor, and he became revested with an estate in fee simple in the lands; also, that it was immaterial that the referee did not in terms express a conclusion of law to that effect, as it resultsnecessarily from the facts found, and the judgment was conclusive as to plaintiffs’ title.</p> <p>Havingill v. Hare (Oro. J., 516), J&moi v. Oooly (Sir T. Kaym., 185, 158) distinguished.</p> <p>The action of ejectment now tests not only the right to the possession but the title under which the right exists, whether in fee, for life, or for years.</p> <p>Some of the plaintiffs were infants; their father died intestate. Held, that their rights were enforceable by their mother as guardian in socage.</p> <p>Also, held, that plaintiffs being the holders of the legal title, were the proper parties to enforce it; and that the fact that they held it as security for a debt, the equitable title being in another, could not be interposed to defeat a recovery.</p> <p>One count of the complaint set forth the value of the use and occupation and claimed the same as damages. Upon the trial, evidence was given, without objection and uncontradicted, as to the value of the use and occupation. The court directed the jury to find the amount so proved for plaintiffs, “for withholding the possession of the premises.” This ivas excepted to generally. It was urged upon appeal that testimony of the value of the use and occupation was not competent upon an issue as to the damages for withholding possession. Held, that the allegation in the complaint was a sufficient claim for mesne profits; and that no exception was taken below sufficient to present the objection.</p> <p>Larned v. Hudson (57 N. Y., 151) distinguished.</p> <p>In the judgment the sum recovered was stated to be as damages for withholding possession. Held, that this was not an error reviewable upon exception, but an irregularity to be corrected on motion.</p>

' (Reported below, 7 J. & S., 421.) This action was brought to restrain defendants from building upon a yard in the rear of plaintiffs’ store, in the city of New York. The facts are set forth sufficiently in the opinion. Plaintiffs were entitled to use the yard in common with the other tenants. (Whitney v. Olney, 3 Mason, 280, 284; Sheets v. Selden’s Lessee, 2 Wall., 177, 187; Shep.

This action was for assault and battery and false imprisonment. The defendant was a dealer in malt, residing and doing business in the city of Buffalo, and during the years 1872 and 1873 maintained an office at Do. 17 Moore street, in the city of Dew York.

affirming a judgment in favor of plaintiff entered upon a verdict. This originally was' an equitable action brought againt The Florida Railroad Company, defendant Yulee and others, founded upon certain promissory notes made by said company and a portion of which were indorsed by defendant Yulee, which notes were secured by internal improvement bonds of the State of Florida, which were a first mortgage upon said company’s road.

This action was brought to reform a policy of fire insurance issued by defendant through its agent, one Dales, to Thomas Foley, loss, if any, payable to plaintiffs, and to recover upon the policy thus reformed.

This action was brought upon a promissory note, of which the following is a copy : “ One day from date, for value received, I promise to pay Samuel Hubbard, or bearer, one thousand dollars with use. “ Dated April 1st, 1872. “S. H. GURNEY. “ JESSE GURNEY.” The answer alleged that defendant signed as surety; that plaintiff by agreement of the principal debtor, without defendant’s knowledge or consent, extended the time of payment. It also alleged payment.

(Reported below, 4 Hun, 413.) This action was upon a policy of fire insurance.

(Reported below, 5 Hun, 407.) The nature of the action and the facts are sufficiently stated in the opinion. It was error to receive.in evidence the compendium of entries in the books of Fairchild, Walker & Co., which it was claimed related' to the property in question, and to receive evidence to explain the same.

<p>An order quashing a writ of habeas corpus can only he reviewed upon appeal. A writ of error will not lie in such case.</p>

Before the grand jury, by whom the plaintiff was indicted, were impanneled and sworn, his counsel interposed a challenge to the array of grand'jurors which alleged substantially that Douglas Taylor was duly and legally elected and qualified as commissioner of jurors of the city and county of New York, but was illegally-removed from office by the mayor of the city; that the jurors were not selected by him, nor by any person authorized by him, and that no person on his behalf…

(Reported below, 6 Iiuu, 232.) The- indictment contained four counts. The first count alleged, in substance, that the accused burglariously broke and entered the store of one James H. Noe, in the city of New York, with intent, feloniously and burglariously, to steal, take and carry away the goods of said Noe therein.

<p>These were appeals from orders of the General Term of the Supreme Court in the first judicial department. (Eeported below, 6 Hun, 11.)</p> <p>The order in the case first entitled reversed an order of Special Term quashing defendant’s return to an alternative writ of mandamus, and directing a peremptory writ to issue.</p> <p>In the case secondly entitled the order reversed an order of Special Term sustaining a demurrer to defendant’s return to an alternative writ, and directing a peremptory writ to issue.</p> <p>The writ in each case required the comptroller, on behalf of the city, to lease certain premises therein described upon the terms and conditions and for the term specified in certain resolutions of the common council of the city, duly adopted and approved, which authorized and directed such leasing.</p> <p>The return in each case alleged, in substance, that the appropriation for the payment of rents for the year was insufficient after the payment of rents upon leases already taken to pay the rent of the property in question.</p> <p>The common council had power to devolve upon the comptroller the duty of taking' leases. (People v. Wood, 4 Park., 147; People v. Connolly, 2 Abb. [N. S.], 321; In re Lowber, 7 Abb., 158.)</p> <p>The common council could not devolve on the comptroller or confer on him the power to execute such leases. (Laws 1873, chap. 335, pp. 486, 492-495, §§ 2-18, 29-35.) The common council had no power to accept or execute, or to authorize the acceptance or execution by the city as lessee of a lease for a longer term than the current financial year. (Laws 1873, chap. 335, pp. 517, 518, 486, 487, 491, 508; Laws 1873, chap. 757, § 20, p. 1126.)</p>

<p>Appeal from j udgment of the General Term of the Supreme Court in the first judicial department affirming a judgment in favor of plaintiff, entered upon decision of the court at Special Term. (Reported below, 6 Hun, 203.)</p> <p>This action was brought for the cancellation of a contract of sale of certain premises in the county of Westchester, wherein defendants as trustees, under the will of John L. Palmer, deceased, were vendors, and plaintiff was vendee, and to recover back a payment of purchase-money made under said contract.</p> <p>Said Palmer died in February, 1858, leaving a will executed July 1, 1847, and leaving a large real and personal estate. At the time of the execution of the will the testator’s wife and seven children were living.</p> <p>The first clause of the will provided for the payment of debts and funeral expenses. The second clause is as follows:</p> <p>“ Second. I give, devise and bequeath all the rest, residue and remainder of my estate, real and personal, effects, prop-, erty and rights of property, whatsoever and wheresoever, which I may have, own or be entitled to at the time of my decease, to my beloved wife, Margaret Palmer, my son-in-law Edwin A. Oelrichs, my son Henry Palmer, and my friend Henry Meigs, Jr., of said city of Hew York, the survivors and last survivor of them; to have and to hold the same unto them, the survivors and last survivor of them, as joint tenants, and not as tenants in common, their successors and successor, heirs and assigns forever; upon trust nevertheless, and to and for the uses and purposes following, that is to say: In trust, to take, receive and hold all the said rest, residue and remainder of my estate, effects, property and rights of property, during the life of my said wife, Margaret Palmer, to lease or let the real estate so to them devised, and to invest the personal estate and property, and the proceeds thereof, upon bond and mortgage on improved and productive real estate, in fee simple, situated in the said city of Hew York, or in public stocks of the Hnited States, or of the State of Hew York, or of the city of Hew York, and to keep the same so invested; and to collect, get in and receive the rents, interests, income, dividends and profits thereof, and pay and apply such rents, interest, income, dividends and profits, from time to time, as realized and received, after paying with and out of the same and deducting therefrom all taxes, assessments, expenses of insurance and repairs, and other necessary and proper charges upon my said residuary estate, to the use of my said wife, Margaret Palmer, during her natural life, and her receipts shall be sufficient evidences of such payment and application, and good and sufficient acquittances and discharges therefor. And upon this further trust, and I do hereby devise, order and direct, that, immediately after the death of my said wife, all the said rest, residue and remainder of my estate, effects, property and rights of property, and the proceeds thereof, including all the rents, interest, income, dividends and profits thereof, or arising therefrom, not previously paid and applied in pursuance of the provisions hereinbefore contained, be, by the said Edwin A. Oelrichs, Henry Palmer and Henry Meigs, Jr, the survivors or survivor of them, their successors or successor, divided into seven equal parts or shares, and that in their ascertaining the amount of my said residuary estate for the purpose of such division into seven parts, they include in such estate, and compute as part thereof, all and every the sum and sums of money by me at any time advanced, or paid to or for, or on account of my seven children hereinafter named, each, any, or either of them; and charged to or against them, my said children, respectively, in my own handwriting, in a boob of accounts kept by me at my dwelling-house, and marked on the inside of the cover thereof in my handwriting, 6 John J. Palmer, number three,’ but no interest shall be computed or charged upon any or either of said sums of money so paid or advanced. And that the said Edwin A. Oelrichs, Henry Palmer and Henry Meigs, Jr., the survivors or survivor of them, their successors or successor, thereupon take, receive, have, hold, use and dispose of the said seven equal parts or shares of my said residuary estate, and each of such parts or shares, severally and separately, and the income thereof, and I give, devise, and bequeath the same, and each of them, severally and separately, and the income thereof, to, for and upon the trusts, uses and purposes following, that is to say : ”</p> <p>The seven succeeding clauses disposed each of one-seventh part for the use and benefit of a child of the testator, therein named, during life. These clauses were similar, varying only in accordance with the sex of the beneficiary, for life. Of one of these clauses, the following is a copy:</p> <p>“ Sixth. That they, the said Edwin A. Oehlrichs, Henry Palmer and Henry Meigs, Jr., the survivors or survivor of them, their successors or successor, upon and immediately after the death of my said wife, take, receive and hold one other equal one-seventh part or share of my said residuary estate, to be ascertained in the manner above provided, less the amount of the several sums of money by me advanced, or paid to, for or on account of my son Henry Palmer, and charged to or against him in the said book of accounts above mentioned, during the natural life of my said son Henry. That they lease or let the real estate belonging thereto, and invest the personal estate and property upon bond and mortgage on improved and productive real" estate, in fee simple, situated in the city of Hew York, or in public stocks of the United States or of the State of Hew York, or of the city of Hew York, and keep the same so invested. That they collect, get in and receive the rents, interest, income, dividends and profits thereof, and pay and apply such rents, interest, income, dividends and profits from time to time, as realized and received (after paying with and out of the same all taxes, assessments, expenses of insurance and repairs, and other necessary and proper charges upon the said last-mentioned one-seventh part), to the use of my said son Henry, during his natural life, and his receipts shall be sufficient evidence of such payment and application, and good and sufficient acquittances and discharges therefor;, and that they, upon and immediately after the decease of my said son Henry (after the death of my said wife) leaving lawful issue him surviving, or, in case of his decease before the death of my said wife, leaving lawful issue surviving at the time of her decease, then upon and immediately after the death of my said wife, convey, assign, transfer, make over, pay and deliver all the said last-mentioned one-seventh part of my residuary estate (less the deduction last aforesaid), and the proceeds thereof then remaining, and all the property and rights of property in which the same or any part thereof shall then be invested, and all interests, income, dividends and profits thereof, or arising therefrom, not previously paid and applied in pursuance of the provisions hereinbefore contained, to the then surviving child or children of my said son Henry, and the then surviving lawful issue of any his child or children deceased, in equal portions (if more than one), share and share alike ; such issue of any his child or children deceased, to have, receive and take the same share and portion to which his, her, or their parent would have been entitled if living. But if it shall happen that my said son Henry shall depart this life after the decease of my said wife, without leaving lawful issue him surviving, or in case of his death before the decease of my said wife, without leaving lawful issue surviving at the time of her decease, then that they, said Edwin A. Oelriehs, Henry Palmer and Henry Meigs, Jr., the survivors or survivor of them, their successors or successor, in the former case, upon and immediately after the death of my said son Henry, and in the latter case upon and immediately after the death of my said wife, convey, assign, transfer, make over, pay and deliver all such last mentioned one-seventh part of my residuary estate (less the deduction last aforesaid), and the proceeds thereof then remaining, and all the property and rights of property in which the same or any part thereof shall then be invested, and all interest, income, dividend and profits thereof not previously paid and applied in pursuance of the provisions hereinbefore contained, to the wife of. my said son Henry at the time of his decease, if such wife there shall be then surviving, and if there shall be no such wife surviving, then to my own right heirs and legal representatives then surviving, in the same manner, shares and proportions in which they would have inherited and been entitled to the same if I had survived my said wife and son Henry, had owned and held said last mentioned one-seventh part in my own name and right at the time of my decease, and had died intestate.”</p> <p>The tenth and eleventh clauses of the will were as follows:</p> <p>“ Tenth. If it shall happen that at the time of the division of my residuary estate into seven shares or parts, as above provided, the sum and sums of money by me advanced or paid to, for or on account of any one or more of my said children respectively, and charged to or against him or them severally in said book of accounts above mentioned, shall exceed the one-seventh share or part of my said estate, to which such child or children respectively will then be severally entitled, then, and in that case, it is my will, and I do devise, order and direct that the excess of money so advanced, paid and charged to either of my said children, over and beyond said one-seventh share or part of my said estate, shall not be required of or collected from the child or children respectively to or against whom the same shall be so charged, but I do hereby give and bequeath such excess to such child or children respectively, and each of them.</p> <p>“Eleventh. The better to enable the said Margaret Palmer, Edwin A. Oelrichs, Henry Palmer and Henry Meigs, Jr., the survivor and survivors of them, and their successors or successor, to carry into effect the devises, bequests and directions hereinbefore contained, I do hereby give and grant to them, and such of them as shall at any time be authorized to execute the several trusts hereby created, or any or either of such trusts, full power and authority, at any and all times during the continuance of such trusts respectively, in their discretion, to change the investments of the estate and property by them held in trust, or any part thereof, and for such purpose or otherwise to grant, bargain, sell, convey, mortgage, lease, transfer and make over, as they may deem advisable, all or any parts or part of the real estate or personal property which shall be by them so held in trust, and to make, sign, seal, execute, acknowledge and deliver all and every such deeds, conveyances, mortgages, leases, transfers, agreements, and other instruments in writing as may be necessary or proper therefor.”</p> <p>The trustees named were appointed executrix and executors of the will.</p> <p>The wife of the testator died before him, and two of the children named in the will, also died before his decease, unmarried and without issue. No division of the estate into shares was made as directed by the will, but the executors and trustees held the same as one body, dividing the income. In November, 1872, Henry Palmer, the child named in the sixth clause above set forth, died leaving a wife and several children. The contract in question was entered into July 1, 1873, upon an auction sale of a portion of the real estate, of which the testator died seized. Plaintiff paid down, upon entering into the contract, ten per cent of the purchase-price and the auctioneer’s fees. The Special Term held that the defendants had no power to convey a full title, such as plaintiff was entitled to, and directed judgment according to the prayer of the complaint. Judgment was entered accordingly.</p> <p>The whole estate vested in the trustees, subject to the execution of the trusts. (1 R. S., 729, §§ 55, 60.) The devise embraced the rents and profits from the testator’s death to the time of the division. (Rogers v. Ross, 4 J. Ch., 388.) The trustees were vested • with a conditional fee, with a limitation over by way of contingent remainder or executory devise, to such child or children as, upon a division, it would be ascertained were entitled to any interest in the estate. (Fearne on Con. Rem., 17, 19; 1 R. S., 725, § 27; id., 733, § 82; Vedder v. Evertson, 3 Paige, 287; Willington v. Willington, 1 Bla., 645; 4 Ben., 2165; 1 Greenl. Cruise, 65; 1 Washb., R. P., 63; Duffield v. Duffield, 3 Bligh., 340-344.) The interests of the devisees were not vested interests. (1 R. S., 728, § 13; Elwin v. Elwin, 8 Ves., 553; Curtis v. Lukin, 5 Beav., 147; Manice v. Manice, 43 N. Y., 303; Roper on Leg., 560; Bernard v. Montague, 1 Meriv., 522; De Kay v. Irving, 9 Paige, 521; 5 Den., 649; Moore v. Littel, 41 N. Y., 72, 80 ; 2 Powell on Dev., 251-360; 1 Jarm. on Wills, 797-809 ; Phipps v. Williams, 3 Sim., 44; Ackerly v. Vernon, Willes, 153; Atkins v. Hiccock, 1 Atk., 500; Howes v. Herring, 1 McC. & Y., 292; Leake v. Robinson, 2 Meriv., 363, 385; Ford v. Rawlins, 1 Sim. & Stu., 328; Taylor v. Bacon, 8 Sim., 100; Burns v. Clark, 37 Barb., 496; Jackson v. Winne, 7 W. R., 51; 1 Jarm. on Wills, 762, 771; 1 R. S., 723, § 13; Newman v. Newman, 10 Sim., 51; Festing v. Allen, 12 M. & W., 279; Duffield v. Duffield, 3 Bligh., 260, 333, 341; Wills v. Wills, 1 D. & W., 439, 452; Bull v. Pritchard, 15 Hare, 567; Southern v. Wollaston, 16 Beav., 166; Boreham v. Bignall, 8 Hare, 131; Vawdry v. Geddes, 1 R. & M., 203.) Assuming that the trusts, so far as Henry Palmer’s children are concerned, had terminated, and that the interests had vested, the power of division may now be exercised. (Hawley v. James, 5 Paige, 548; Manice v. Manice, 43 N. Y., 303, 364; Downing v. Marshall, 1 Abb. Ct. App. Dec., 543; Tate v. Swinstead, 26 Beav., 525 ; Wood v. White, 4 Myl. & C., 460 ; Trower v. Knightley, 6 Mad., 134; Kinnier v. Rogers, 42 N. Y., 531; Skinner v. Quin, 43 id., 99; Crittenden v. Fairchild, 41 id., 289.) The court will construe liberally powers of division and sale in executors. (Pearce v. Gardner, 10 Hare, 387; Hutchins v. Baldwin, 7 Bosw., 236.) If a division can now be made, the power of sale may be executed and a valid title given. (Egerton v. Conklin, 25 W. R., 238 ; Pearce v. Gardner, 10 Hare, 287; 1 Sugd. on Powers, 334; 2 id., 463; Morton v. Morton, 8 Barb., 18; Dorland v. Dorland, 2 id., 63; Bogert v. Hertell, 4 Hill, 492; Davone v. Fanning, 2 J. Ch., 252.)</p> <p>The trust as to the share of Henry Palmer terminated on his death, and no division of the estate having been made, his heirs became seized of an undivided seventh part. ( Wood v. White, 2 Keen., 664; 4 Myl. & C., 460; Wolley v. Jenkins, 23 Beav., 53.) The long neglect to divide the estate could not prevent the vesting of the interest of the remaindermen. (Gaskell v. Harman, 11 Yes., 507; Bernard v. Montague, 1 Meriv., 433; Small v. Wing, 5 Bro. P. C., 503; Tomlin’s ed., 66.) The division of the estate into shares and the incidental ascertaining of the accounts are not in the nature of a condition precedent. (2 Powell on Devises, 261; Cary v. Bertie, 2 Vern., 340; Phipps v. Williams, 5 Sim., 44; Elton v. Elton, 1 Wils., 159.) The power of sale was consistent with the testators intention that the trustees should make an immediate division of his estate, and that the land embraced in each share should, on the death of the tenant for life, go to his issue in fee. (Crittenden v. Fairchild, 41 N. Y., 289; Kinnier v. Rogers, 42 id., 531; Skinner v. Quin, 43 id., 99.)</p>

<p>A parol lease of premises for a year to commence in futuro is not an executory contract prior to the time of taking possession. It vests a present interest in the term and cannot be rescinded by either party alone.</p> <p>In case, therefore, of a refusal of the lessee to perform, the lessor is not required to lease to another if he have an opportunity, and is not confined to his remedy for actual damages; but may refuse to accept the rescission and hold the lessee liable for the rent.</p>

(Reported on a former appeal, 60 U. Y., 498.) The complaint in this action alleged, in substance, that plaintiff and George H. Mumford were the executors of the will of Elizabeth G. Scholey, deceased; that said Mumford-died, having in his possession a large amount of United States bonds belonging to the estate, which came into the hands of defendants as his personal representatives; that plaintiff demanded the same, but they refused to deliver them up until certain…

(Reported below, 6 Iiun, 314.) This action was brought to recover damages for the alleged killing of plaintiff’s intestate, Adam Massoth. . The accident occurred September 4, 1874, at a point where a street in the city of Cohoes crósses defendant’s tracks. The street crosses the railroad diagonally. The deceased, who was in the employ of one Cornell Smith, was struck while riding on a load of hay with his employer, going south-easterly on said street; the latter was driving.

(Reported below, 6 Hun, 461.) This action was brought to recover damages for the death of plaintiff’s intestate, Christopher B. Cordell, alleged to have been caused by defendant’s negligence. Said Cordell was, on the 13th of August, 1873, struck by a locomotive running upon defendant’s road, and killed. The place where the accident happened had been, prior to 1867, a farm-crossing, with gates on each side of the track.

(Reported below, 5 Hun, 200.) The said commissioners originally assessed relator at $20,000,000. The assessment was objected to,- and application made for a correction upon an affidavit of the vice-president of the relator, with schedules attached.

(Reported below, 6 Hun, 94.) It appeared by the opposing papers that, prior to the rendering of judgment herein, plaintiff assigned his claim to one Burt, his attorney in the action, and after the judgment was perfected assigned the judgment to said Burt. This court has power to set off a judgment of another court against one obtained in this court.

These were appeals by the Lake Shore and Michigan Southern Bailroad Company, the Hew Tork Central and Hudson Biver Bailroad Company, the Buffalo, Hew Tork and Erie Bailroad Company, and the Erie Bailway Company, from an order of the General Term of the Superior Court of the city of Buffalo affirming an order of Special Term appointing commissioners to appraise lands of the appellants proposed to be taken in pursuance, of a resolution of the common council, for the purpose of…

(Reported below, 7 J. & S., 207.) The complaint in this action contained two counts.

” It appeared, and was recited in the order, that an action was commenced against said corporation in the Court of Common Pleas in and for the city and county of Hew York for its dissolution in pursuance of the provisions of the Revised Statutes, in which action judgment was entered dissolving the corporation and appointing a referee to determine the amount and priority of claims against the company; that the attorney-general made application at the foot of said judgment for…

Appeal front judgment of the General Term of the Supreme Court in the fourth judicial department affirming a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 6 T. & C., 589; 4 Hun, 419.) This action was brought to require defendants to remove a dam across Buffalo creek, which they were constructing upon plaintiff’s premises, and to restrain them from constructing any dam.on said premises.

This action was brought to determine the rights and equities of the various parties in and to certain real estate situate in Jamaica, Queens county.

(Reported below, 7 J. & S., 137.) This action was brought to recover the amount of a draft or order, signed by defendants, of which the following is a copy : “ $5,000. New Yobk, July 13, 1867. “ For value received, pay to the order of John E. Risley five thousand dollars pro rata, as the money shall become due to us under our contract with you of this date, and charge the same to the account of “Yours truly. “ W. H. SMITH. “ CHARLES KING. “ CONDE R. ALTON. “To S. 0.

The indictment contained three counts: First. Burglary in the second degree. Second. Burglary in the third degree. Third. Larceny. The intended crime charged in each count was to steal cider. On the 30th September, 1871, between eight and eleven A. m., plaintiff in error, with his brother and another companion, stopped at the house of the prosecutor, Hinckley Cole, who was then absent from home.

This action was brought to recover the value of services alleged td have been performed by plaintiff and his wife in caring for defendant’s testator, James Hill. Said Hill was a farmer living in Argyle, Washington county. In 1855 he adopted Lovella Hughes and brought her up as his daughter. She married the plaintiff in January, 1863. After the marriage, plaintiff took Hill’s farm to work on shares, and in 1867 purchased it.

<p>Mere inadequacy of consideration, except as a circumstance bearing upon the question of fraud or undue influence, is not a defence to a promissory note.</p> <p>Defendant’s testator, having taken by mistake a fatal dose of aconite, and being aware of his approaching death, executed and delivered to plaintiff—who had been his housekeeper for seven or eight years, and to whom he was indebted for services— a promissory note for the sum of $10,000, the consideration expressed being “for services rendered.”</p> <p>• In an action upon the note, held, that it was valid, although the amount was greater than the value of the services.</p>

<p>An order directing the issuing of a writ of peremptory mandamus to compel the performance of an act required by law is only proper in case of a clear, unquestioned, legal right. It should not be granted where the claim is disputed and its validity controverted.</p> <p>In such case an alternative writ should issue.</p>

It appeared that the relator was the owner of lots fronting-on One Hundred and Twenty-third street, upon which was a dwelling; that under,the act chapter 52, Laws 1852, a grade was established for said street, and the same was regulated and graded; that the commissioners of the Central park, in 1867, established a new grade for said street, under authority of chapter 564, Laws of 1865, and chapter 367, Laws of 1866, and chapter 697, Laws of 1867, which was regulated and…

(Reported below, 5 Hun, 516.) This action was brought by the attorney-general to restrain defendants from locating, stationing or mooring a floating elevator owned by them in the City Ship canal of Buffalo, and to abate the same as a nuisance.

The court, in this action, found, in substance, that in 1868 Albert Helms, plaintiff’s assignor, was in possession of certain premises in Randolph, N. Y., under a contract of purchase from Benjamin… Held: that, although the agreement between Helm and defendant being oral, could not be enforced as a formal, valid, express trust (Dillaye v. Greenough, 45 FT.