Volume 65 — Barbour's New York Supreme Court Reports

THIS case comes before the court upon a writ of certiorari returnable at the present term of this court. The return to said writ having been duly made and filed, the case was brought on for argument, upon such return, the particulars of which appear in the opinion of the court.

THIS is an. appeal from a judgment rendered upon a verdict at the circuit. The action was brought'to recover for a quantity of cheese, sold to the defendants through the agency of one Chapman.

THIS is an appeal from a judgment of the county court of Jefferson county, reversing a judgment of a justice of the peace. The action was for work and labor. It was commenced by. summons, issued September 2, 1871. The parties appeared and joined issue on the return day of the summons, and the case was then adjourned to the 23d of the same month, when it was tried.

APPEAL, by the defendant, Newton Gr. Cook, from a judgment entered upon a trial at the circuit before the court without a jury. The action was brought to foreclose a mortgage executed by said Newton Gr. Cook and wife to the plaintiff, to secure the payment of $1,350 and interest. Cook defended, on the ground of usury.

APPEAL by the defendant from a judgment entered upon the report of a referee. The action was brought to recover damages for personal injuries sustained by the plaintiff in consequence of the bursting of the boiler upon-a steam ferry-boat of the defendant, called the Westfield, owned by the defendant, and employed in carrying passengers and freight between the city of New York ’and Staten Island.

THIS is an appeal from a judgment On the report of a referee. . The action was replevin, for a stock of goods, and goods to the value of $2,000 were taken by the officer, when the defendant gave security for the property, and retained it in his possession.

<p>ERROR, to the court of oyer and terminer of the county of Onondaga, upon exceptions taken on the trial.</p> <p>The plaintiff' in error was tried, in January, 1873, upon an indictment for the murder of Peter Shaffer, on the 3d of August, 1872, and convicted. A bill of exceptions, containing the evidence, and proceedings had upon the trial, was duly made. The questions raised on the trial sufficiently appear in the opinion of the court.</p>

On the 17th day of July, 1868, the plaintiff was a partner with one Barnes, and with him owned a' fruit jar patent, and was carrying on business with him under the name of Coleman & Barnes. Coleman sold his one-half interest to the defendants, and they took his place in the firm under an agreement, in these words : “Whereas, S. Coleman is equal owner of the patent fruit jar in the copartnership of Coleman & Barnes, and, whereas, Messrs.

<p>MOTION by the plaintiffs for a new trial, under section 268 of the Code of Procedure.</p>

<p>Under particular circumstances, a creditor of the estate of a deceased person may maintain an action to collect Ms debt from a debtor to the estate.</p> <p>Where H„ the executor of B.’s estate, whose duty it was to see to the collection of the assets of such estate, and to pay the legacies, was also the administrator de bonis non of A.’s estate, which was claimed to be the debtor of B.’s estate; held, that inasmuch as he could not, as executor of one estate, sue himself as administrator de bonis non of the other, he stood in a position which was equivalent, in its effects, to a fraudulent collusion, or a refusal to sue; and that under such circumstances, the legatees under B.’s will, claiming that as such legatees they were creditors of B.’s estate, might maintain an action against H. as executor of B. for the construction of the wills of A. and B. and the establishment of their rights thereunder, and the payment of their legacies. But that, upon the construction of the will of A. as claimed, an accounting between the two estates being necessary, H. was a necessary party to the suit in his character of administrator of A.'s estate, also; and that without Ms presence in that character, the suit would be fruitless and nugatory, and could not proceed to a decree against A.’s estate.</p> <p>Held, also, that if the legatees could maintain the action at all, they might call for the construction of the will of A.; such construction being necessary to the determination of the question whether A.’s estate was indebted to the estate of B.</p> <p>And that, if the plaintiffs could maintain the. action at all, they might join in the same, as creditors having claims-of equal degree, and under like circumstances.</p> <p>To bind the estate of a deceased party, or to authorize any decree for an account against the same, it is not sufficient that the person who is the representative thereof is a party to the suit. He must be made a party distinctly in his representative character.</p> <p>Where a defect of parties is apparent on the face of the complaint, but no demur-r'er is interposed, and no suggestion of the defect made until the argument of an appeal from the judgment, • neither party is entitled to costs of the appeal.</p>

<p>APPEAL from a judgment in favor of the defendant entered in Onondaga county, and from an order denying the plaintiff’s motion for a new trial.</p> <p>The plaintiff sues to recover of the defendant damages for the negligent killing of his daughter, Mary Costello, in the city of Syracuse, in August, 1871.</p> <p>At the time of the killing, Mary was seven years of age, and had been sent by her mother upon an errand to a butcher’s shop a few rods from the plaintiff’s house. An engine with three passenger cars, an express car and a baggage car, left in the morning of the day of the accident, the defendant’s depot in Syracuse for Mew York, and was moving, as estimated by the witnesses on the part of the plaintiff, at a speed of from twenty to twenty-five miles per hour, and by the defendant’s witnesses from seven to eight miles. The grade of the defendant’s road ascends from the depot to Jamesville a distance of 6.69 miles, part of the way sixty feet to the mile. Very soon after the child left the house the whistle on the defendant’s engine was sounded, which indicated to the brakesman of the train to put on the brakes, the effect of which would be to stop the train. At the time the whistle was blown the child was at the intersection of Taylor and Montgomery streets, which cross each other at right angles, approaching the track which crossed Montgomery and passed along the south margin of Taylor, on a pretty sharp curve. After the sound of the whistle the child started to cross the track, and as it did so it fell. The whistle again sounded and the child made an effort to rise. The whistle again sounded, giving, as one of the witnesses expresses it, an “unearthly yell,” and instantly passing over her, cutting her body in two. The sounds of the whistle followed each other as rapidly as they could.</p> <p>The plaintiff’s theory of the cause of the fall of the child was the bad condition of the crosswalk on Taylor street lying between the rails, and which the defendant was bound to keep in repair. Several witnesses testified that the edge of one of the planks was raised above the other plank from one-half to three inches, and that the child struck her toe against this elevated edge of the plank and was thereby thrown down. Witnesses on the part of the defence testified that the walk w;as in good order, but concede that the planks were somewhat worn and decayed. An engineer was called, on the part of the plaintiff, who testified that he had made measurements to ascertain how far a train of cars coming from the depot could be seen from the place of the accident, and he found it to be two hundred feet. The defendant’ s witnesses (one of whom was an engineer) testified that the smoke stack of the engine could be seen five hundred and thirty-one feet from a point on the crosswalk at the north end of the track, sixty-five feet south of the north line of Taylor street. Standing at a point in the crosswalk in the center of Taylor street, thirty-three feet south of its north line, he could see three hundred and eighty-four feet. At a place in the east sidewalk of Montgomery street, six feet from the fence on the north line of Taylor street, a grown person could see it three hundred and thirty-six feet off. A child standing eight and a half feet south of the north line of Taylor street, on the east side of Montgomery, would first see the smoke stack three hundred and eight feet down the track.</p> <p>One of the defendant’s witnesses testified that the bell on the engine was rung from the time of leaving the station until they were outside the city limits. Another witness testified that the noise made by the train could be heard half a mile.</p> <p>On the trial the plaintiff offered to prove that there was a patent brake in use on railroads, which was not used by the defendant on its trains. The court told the plaintiff’s counsel that if the defendant should give evidence as to distances and speed of train, so as to make the use of the brake material, he would allow the plaintiff to recall the witness. Subsequently the defendant did give evidence as to distance and speed of train above stated, differing materially from that given by the plaintiff, and the plaintiff’s counsel thereupon offered to prove that with patent brakes, which were in use on most of the railroads of the State, the train, by which, the injury was done, running at the rate of eight miles an hour, might have been stopped before it reached the place of the accident, and that they were not in use on that train. The evidence was objected to by the defendant’s counsel, and the objection was sustained, and the evidence was rejected.</p> <p>The defendant’s counsel moved for a nonsuit, principally on the ground that the deceased was chargeable with negligence that concurred to produce the injury.</p> <p>The motion was denied; the court holding that the question of negligence was for the jury, and he would submit it to them. The judge charged the jury, among other things, that a child that was sui juris, was bound to exercise the same degree of caution in approaching and crossing a railroad track, to prevent injury from a passing train, that an adult was bound to exercise. And he also charged that a railroad, company was bound to exercise a greater degree of care and caution to prevent injury to a child, than it was bound to exercise to a person of mature years.</p> <p>The plaintiff’s counsel did not except to any portion of the charge.</p> <p>The jury found a verdict for the defendant, and the plaintiff appealed from the judgment and the order denying a new trial.</p>

IN March, 1857, the plaintiff owned the premises which are the subject matter in dispute in this action, and on the 15th of that month, he and his wife conveyed them to Loren Culver.

<p>MOTIOH for a new trial, upon a case and exceptions, on a judgment of nonsuit at the circuit.</p>

THIS was an action by a judgment creditor, whose execution had been returned unsatisfied, to set aside a deed of a house and lot, the apparent title to which was in the defendant Mary Ann Heath. It was tried at the Monroe Special Term, in December, 1871, and a judgment entered in’ favor of the plaintiff; from which the defendants Hughes and wife appealed. The opinion states the material facts.

THE plaintiff sues to recover damages for injuries sustained by reason of a collision between a train of cars on the defendant’s road, and a horse and buggy belonging to one Caulon, with whom the plaintiff was riding, by his permission, as a matter of favor merely.

THIS action was brought to foreclose a mortgage on lands in the city of Rochester, given by the defendant, Sarah Conway, to Samuel M. Spencer, to secure the payment of a bond executed by her, in the penalty of $18,000, conditioned to pay $9,000, with interest, on or before the 1st day of April, 1872.

THIS action was brought to recover the price of a JL quantity of apples, alleged by the plaintiff to have been sold to the defendant’s agent, in October, 1865. The defence was that the apples were purchased by the firm of J. P. Marshall & Co. of the city of New York.

AWRIT of certiorari was issued in behalf of the relator, a taxable inhabitant of the town of Ontario, in the county of Wayne, to ‘review the proceedings to bond the town of Ontario to aid in the construction of The Lake Ontario Shore Railroad, pursuant to the provisions of an act of the legislature, entitled 1 £ An act to authorize certain towns of the counties of Oswego, Cayuga and Wayne to issue bonds and take stock in and for the construction of The Lake Ontario Shore…

THIS action was brought to recover against the defendant, as endorser, the amount of a promissory-note, made by Brewster and Perrin to the order of the defendant, for $2,000, payable, with interest,… Held: as matter of law, that the plaintiff was entitled to 'recover a verdict for $1,623.50, with interest from the date of the note. To which ruling the defendant’s counsel excepted.

<p>The defendants were partners, and were indebted to the plaintiffs. B., one of the partners, was also indebted to the plaintiffs, on his individual account, and to pay the same gave the plaintiffs a note, signed with the name of the firm, but without the knowledge or consent of the other members. The plaintiff procured the note to be discounted, at a bank; and the same not being paid, at maturity, it was charged to them, by the bank, and was paid by the defendants, and credited to B. instead of the firm. The defendants claimed that the note should have been credited to their firm, instead of B.</p> <p>Held, 1. That to deprive the defendants of the right to be credited with the note, it was necessary to show that they had ratified the acts of B. in making the same, and delivering it in payment of his own debt.</p> <p>2. That although the defendants knew of the existence of the note, before it was paid, that knowledge did not apprise them that it had been given by B. in fraud of his associates.</p> <p>3. That payment of the note, by the defendants, being the only act of ratification, on their part, that was of no significance, unless they knew, at the tune, of the improper use that had been made of the note.</p> <p>4. That until such knowledge was brought home to them, payment was not a ratification of the delivery of the note to the plaintiffs in payment of B.’s individual debt.</p>

THE plaintiff sued the defendants for negligence in making the milk furnished by him to them, as proprietors of a cheese factory, in Herkimer county, into cheese. The plaintiff applied to the Hon. A. B. James, a justice of this court, for an order requiring the defendants to make discovery of certain books and papers belonging to them, or under their control.

The plaintiff was the owner of the canal boat Joseph Cong don, that was lying near Troy in November, 1860, with a cargo onboard, destined for the city of New York. The tow-boat Mice Price was owned by the Never-sink Steamboat Company, and was engaged in towing boats between Troy and Ñew York.

At some time previous to April, 1862, Cornelius Post, of Lodi, in the county of Yates, died seised in fee of a tract, or farm of land in said town, containing 459 acres, and leaving him surviving, his widow Christina, and heirs entitled to said lands.

The plaintiffs were distillers, residing at the city of Buffalo, and in the winter of 1871 consigned to the defendants, who were commission merchants, residing and doing business in the city of New York, 497 barrels of Bourbon whisky, to be sold on commission, at such prices as the plaintiffs should prescribe, for which the defendants were to receive a commission of two and a half per cent.

THIS action was brought before a justice of the peace of the county of Cayuga, to recover of the defendant the amount due on a promissory note, made by him, and bearing date April 12, 1869, for the sum of $42.88 and interest, payable to the plaintiff on or before the 1st of April then next. The defence was a general denial, a former suit and recovery on the same note, and a counter-claim. The execution of the note was proved.

On and prior to the 9th of ¡November, 1863, the plain-•tiE was owner in fee of a grist-mill at Whitesville, in the county of Allegany, and on that day entered into a contract in writing to sell and convey one-half of it to his brother, James M. Parker, the defendant, on payment of the sum of $1,600 with interest. In and by the same writing Abraham and James entered into partnership for the purpose of carrying on the milling business in said mill.

APPEAL by the defendant from a judgment of the county court of Lewis county, affirming the judgment of a justice of the peace.

APPEAL, by the defendant, from a judgment entered upon the report of a referee. The action was brought to recover damages for an injury sustained by the plaintiff, by reason of his stepping into a fence post-hole, digged by the defendant upon his own lot, adjacent to a public street in Sb. 'johnsville, 1ST. Y. The action was referred to a referee, who réported in favor of the plaintiff for $200 damages.

APPEAL, by the plaintiff, from a judgment entered at a Special Term, on atrial by the court without a jury. The action was brought to recover damages against the defendant for the wrongful taking and carrying away certain, wheels and other machinery in a saw-mill, that were claimed by the plaintiff to be fixtures in said mill.

THIS action was brought to recover the value of lumber, alleged to have been illegally converted to the use of the defendant. The answer alleges that Cyrus W. Pratt, on the 15th day of November, 1861, recovered judgment against one Bichard Carter, in this court, for the sum of $849.73, and on the 4th of February, 1862, said Pratt recovered another judgment, against the same defendant, in this court, for $1,062.02.

THIS action was tried at an adjourned Special Term of the Supreme Court, in Delaware county, in November, 1872. The complaint shows, substantially, that each party to the action is the owner in fee simple of one-fourth part of over 1,200 acres of land situated in the county' of Delaware, known as “ Solomon Green’s Pisgah tractwhich land is described in the complaint.

The relief demanded in the complaint was : 1st. That the defendants Jane E. Herrick, executrix, and Geo.

<p>APPEAL from a judgment entered upon the report of a referee, dismissing the complaint, with costs. The material facts appear in the opinion of the court.</p>

THIS action was brought to recover the amount of two bills of exchange, drawn by J. Gould, and dated at Boston, Massachusetts, upon the defendant Shepard, at 107 West street, New York, and accepted by him in the words “accepted, payable at 107 West street, H. Y.” The drawer was a resident of Lexington, Mass., doing business at Boston; the defendant was a resident of this' State, and his place of business was in New York city.

APPEAL, by the defendant, from an order made at a Special Term denying a motion made by Mm to set aside the report of a referee, for irregularity.

APPEAL, by the defendant, from a judgment en- ^ tered upon the report -of a referee. The action was brought to recover the amount of a bill for board, lodging, washing &c.

APPEAL' from. an order directing a reference of a claim in controversy between the receiver of the Guardian Savings Institution and the receiver of the Bowling Green Savings Bank, for $58,000 and upwards. The original claim was made against Shepherd F. ■ Knapp, receiver of the Bowling Green Savings Bank, with an offer to refer it under the statute, and said receiver refused to refer or pay the claim.

The complaint alleges that $19,600 United States bonds were received by the defendant from the plaintiff, as his agent and broker, in a fiduciary capacity, upon an arrangement and agreement, set forth in a paper, a copy of which was annexed to the complaint.

<p>APPEAL from an order made at a.Special Term, •vacating an assessment.</p>

APPEAL, by the plaintiffs, from a judgment entered upon the verdict of a jury. The action was in the nature of replevin, to try the title to 1,370 bags of linseed. The jury found a verdict for the defendants, and assessed the value of the property in controversy at $12,624.12.

<p>A voluntary and general appearance, in an action, not only gives jurisdiction of the parties, but cures any irregularity in the service of process.</p> <p>When a foreign corporation is sued here for a cause of action which has arisen in this State, and its officers or attorney desire to have the benefit of section 427 of the Code, the objection, to the jurisdiction must be made in proper time. It is too late to' raise 'the objection after an unqualified appearance in tile action.</p> <p>Sufficient is shown to sustain the action when it appears that the court has general jurisdiction of the subject matter, and the parties have voluntarily submitted to the jurisdiction of the court.</p> <p>The hoard of trustees of Oakland, California, granted to the plaintiffs the exclusive privilege of running a ferry between that place and San Francisco. The plaintiffs, in consideration of a certain percentage of the receipts from the ferry, assigned and transferred to the defendants such rights as they had under the ordinance and grant of the trustees of Oakland; not covenanting that the privileges and rights of ferriage so assigned were “ exclusive.” In an action for an accounting by the defendants as to the receipts from the ferry, and for payment of the plaintiffs’ share; it was held that in the absence of any covenant on the part of the plaintiffs that the ferry privilege was exclusive, it was not competent for the defendants to allege, as a counterclaim or defence, that the town of Oakland had not the power to confer the exclusive right of ferriage, and that thereby the defendants had sustained damages.</p> <p>That the plaintiffs could not, on that account, be held responsible for the loss or gain of the contract; the defendants not having rescinded the contract, nor offered to restore what they had acquired under it.</p> <p>Held, also, that if the trustees of Oakland had no legal right to establish or grant the exclusive privilege of a ferry, it was a mistake of law • and that both parties having acted under the mistake, no claim for damages could arise out of such mistake; nor was it a defence to the plaintiffs’ whole cause of action.</p> <p>Seld, further, that no warranty could be predicated on the contract because of a mistake of law.</p>

<p>A voluntary payment, made on a claim of right, and under no misapprehension or mistake of fact, cannot be recovered back.</p> <p>It is well settled, in this country, that where there is no mistake of fact, a voluntary payment, though made under a mistake of law, cannot be revoked.</p> <p>The defendants held a mortgage for $8,000 and interest, executed September 21, 1860, and payable in three years from date, on premises in the city of New York. The plaintiff having become the owner of the 'premises, he, on the 14th of April, 1810, desired to pay the mortgage, in legal tender currency, but the holders demanded gold; whereupon the parties entered into a written agreement that the sum of $985, being the difference between the value of gold coin and legal tender currency, on the amount of the mortgage, should be deposited by the plaintiff in a trust company, in the names of the parties; that it should be forthwith submitted to the Supreme Court of New York, to determine the question whether the mortgage was payable in gold or paper currency.- Subsequently the parties agreed that the submission to the court should be delayed until after the decision by the Supreme Court of the United States of the so-called legal tender cases; and in case such decision should amount to a reversal of the decision in Hepburn v. Gi-iswold, the plaintiff should be entitled to the sum so deposited. The Supreme Court of the United States followed the decision in Hepburn v. Griswold, and on the plaintiff’s order the deposit was paid to the defendants. Afterwards the Supreme Court of the U. S. held that the legal tender act was constitutional, and that it applied to contracts made before, as well as after its passage. Held that the plaintiff could not recover back the money thus paid to the defendants.</p> <p>That as, at the time the payment was made, both the Supreme Court of the United States, and the Supreme Court of New York, had decided against the constitutionality of the legal tender act as it respects contracts made before its passage, the contingency had arisen, on the happening of which the parties had agreed the money should be paid over by the trust company to the defendants; and the payment thereof was voluntary, made on a claim of right, and under no misapprehension or mistake of fact.</p>

<p>Where debtors give to their creditor, in fall payment and discharge of the debt, the promissory note of third persons who had previously failed, and become insolvent, though that fact was unknown to the patties, at the time of the transfer, the creditor may rescind the contract; unless it appears that he agreed to receive the note in payment whether the makers had failed or not.</p> <p>There is no doubt of such a rule being well settled law in the case of bank bills; and the decision of the Court of Appeals in Roberts v. Fisher, (43 IV. Y. 159,) must be regarded as applying the same rule .to promissory notes.</p> <p>Where it appears, from the whole evidence, that both parties were acting in ignorance of the failure of the makers, this gives the creditor the right to rescind the contract, on discovery of the mistake.</p> <p>Under such circumstances, in an action by the creditor, to recover the amount of the original debt, there is no question to be submitted to the jury; and there is no error in directing a verdict for the plaintiff.</p>

APPEAL by the plaintiff from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial, made on the judge’s minutes.

APPEAL, by the plaintiffs, from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial. The action was brought to recover damages for the refusal of the defendants to receive a cargo of coal bought by them of the plaintiffs in October, 1869. The coal was ordered to be delivered on board a boat at Philadelphia. The order was on the 20th of October.

<p>THIS is an action on a promissory note for $395.81, dated New York, 8th July, 1869, at four months, to order of M. J. O’Leary & Co., and endorsed by them and Henry B. Ogden, and Timothy Cohalen.</p> <p>The defendant’s name was signed to the note by her husband, as her agent; the defendant then was and still is a married woman, the wife of Egbert Gulick. The note was made and handed to Timothy Cohalen, to be by him delivered to the Traveller’s Insurance Company, in payment of the first annual premium, for an insurance policy on the life of Egbert Gulick, to be issued by said company to said Egbert Gulick, in case that company, who had examined said Gulick, should conclude to issue said policy. Ho policy was issued. Cohalen diverted the note to his own use. Ho consideration whatever was received by the defendant for said note; nor was it, nor were the proceeds, applied to the benefit of the defendant’ s separate estate, or used in her business. She conducted, in her own name, the business of malting grain at Starkey, Tates county, but was never indebted to Ogden or Cohalen. Such business was carried on for her by her husband, as her agent. In that business her notes were sometimes made, and were payable at the First Hational Bank of Canandaigua, where she kept her bank account. The plaintiff purchased the note before maturity, and at the time of such purchase the holder represented to him that the note was a bona fide note, given for a fair business transaction. The plaintiff had no notice of the facts touching the origin of the note.</p> <p>It is also found by the court below that the husband and agent of the defendant came down, with the consent of his wife, (the defendant,) to get his life insured. That he was examined, and the agents of the company told him they would insure him for five years, but would consult over insuring him for his life. That he made this note, and gave it to Cohalen, who acted as the agent of the husband, for procuring, on his behalf, the policy, and who had introduced him to the company, as the payment for the first year’s premium, and Cohalen was to forward the policy. When the husband returned home he informed his wife of what he had done, to which she made no objection. The policy was not issued nor forwarded to him, but the note was converted by Cohalen to his own use, and sold to the plaintiff, who took the same without notice of the want of consideration thereof, or of its misapplication. The judge, ■ at the circuit, dismissed the complaint, to which the plaintiff excepted; and, after the judgment, he appealed.</p>

THIS is an appeal by the defendant, from a judgment rendered on the verdict of a jury against the defendant, on a trial at the circuit, and also an appeal, by him, from an order denying a motion for a new trial, made upon the judge’s minutes, upon exceptions taken at the trial, and for insufficient evidence and excessive damages.

<p>In 1869, the common council of New York, by resolution, directed the pavement of Fourth and Fifth streets, from Bowery to Mangin street, with a patent pavement. Afterward, the common council adopted a resolution striking out ‘‘Mangin street” and inserting “ Lewis street,” &e. In pursuance of the resolution first passed, proposals were received for paving these streets from Bowery to Mangin street, to be opened on the 10th of January, 1870. Only one proposal was made, and that by the relator; and such proposal was accepted, and the contract awarded to him. The contract being submitted to the commissioners appointed under the act of 1872, chap. 680, as an award of a contract from Bowery to Lewis street, they gave a certificate' that they were satisfied there had been no fraud in the award. The commissioner of public works refusing to make the contract the relator applied for a mandamus to compel him to execute the same; which application .was denied, and an appeal taken.</p> <p>Held, 1. That the Croton board had no right to award a contract which had been made upon proposals to do the work in a different way from that which was contemplated when the notice was published for receiving such proposals ; and if it had been done, no assessment under it would have been valid.</p> <p>2. That the certificate of the commissioners under the act of 1872, did not make it obligatory upon the commissioner of public works to execute the contract; such certificate not being in accordance with the statute. That the contract submitted to them was, one to pave the street from Bowery to Mangin street, while the one they certified to was a contract to pave from Bowery to Lewis street. That their duty was to examine as to contracts that had been entered into within five years preceding, or which had been awarded but not executed.</p> <p>3. That these provisions of the statute relate only to contracts which had been previously authorized by the common council; not to contracts made without any ordinance therefor.</p> <p>4. That the contract could not have been made to Mangin street. The commissioners had no power to change it to Lewis street, and the certificate given by them was not a certificate as to any contract then existing, or any contract which had then been awarded, but one which they undertook to malte, so as to conform it to the subsequent legislation of the common council.</p> <p>6. That they had no such authority, and their certificate gave no validity to the contract.</p> <p>Where the work to be done, (in paving a street,) is under a patent, there is no propriety in advertising for proposals, or in attempting to carry out the provision that the work shall be given to the lowest bidder; there being no opportunity for any competition, in consequence of the patent.</p> <p>The provision which entitles the person making the lowest estimate to have the contract awarded to him, does not apply to estimates for patented articles or modes of work.</p>

<p>APPEAL from a judgment entered on the report of a referee.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

HIS action was brought, in June, 1863, to recover damages for an alleged libel appearing in the New YorJc Herald. ■ It was tried at a circuit, and the complaint dismissed because it did not contain facts sufficient to constitute a cause of action. Subsequently, application was made, at Special Term, for leave to amend the complaint, which was granted.

<p>WRIT of error to review a conviction for grand larceny.</p>

THIS is an appeal from a judgment entered upon a verdict for the plaintiff for $515, after a trial at the circuit. The defendant leased, from- the Rhinelander estate, the south side of pier Ho. 34, Horth river; and the action was for damages in consequence of the plaintiff’s horse falling through the pier.

APPEAL, by the defendant, from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial, made on the judge’s minutes. The action was brought upon a promissory note, by the endorsee, against the endorser, and the jury found a verdict in favor of the plaintiff, for the amount of the note and interest, $6,481.11.

. The relator was expelled from The Young Men’s Father Matthew Benevolent Society, for. charges made against him, copies of which were served upon him, and a notice to appear and answer. This notice was served, on Sunday, and the day fixed for the hearing was the next Sunday. The objection was made, at the Special Term, that the notice, being served on Sunday, was void, and that no such proceeding could be taken oh that day. This was overruled and the relator appealed.

<p>Although a corporation has abused its power, or committed acts which are unlawful, it, nevertheless, continues legally to exist as a corporate body, nntil the State or government which created it shall, by a proper proceeding, procure an adjudication and enforce a forfeiture of the charter.</p> <p>Acts which are improper do not, of themselves, work a dissolution; and if the stockholders participated in such acts, they will not be heard to allege their invalidity.</p> <p>The charter of a corporation created by the State of Vermont authorized the making and alteration of such by-laws and regulations as a majority of the corporators should direct; and it was expressly made subject to the com-piled statutes of that State, which provided that the shares in any private corporation might be sold, in case the owner should neglect or refuse to pay any tax or assessment duly laid according to the by-laws thereof. At a meeting of the stockholders, held in the city of New York on the 26th of December, 1866, an amendment to the by-laws was adopted, by which the directors were authorized to assess the stock of the company, not exceeding five cents a share; and authorizing a sale at public auction of any shares, the assessment upon which should not he paid. Under this authority, certain shares were sold, for non-payment of assessments, and new certificates issued therefor, to the purchasers; the original owners having notice of, and submitting to such action by the company. The plaintiff, claiming to he owner of these shares, under assignments of the original certificates, from the former owners, brought an action against the company, to recover damages for its refusal to transfer such stock to him.</p> <p>,Seld, 1. That there was lawful authority for the assessment; and even assuming that the meeting of the stockholders, at which the assessment was authorized, was a special meeting, and held out of the State of Vermont, it was, nevertheless, competent for the stockholders, as between themselves, to waive those irregularities, and to assent to the validity of the proceeding.</p> <p>2. That after they had done so, and action had been taken, by the corporation, on the basis of the proceeding of the stockholders, and such action had, by the sale of stock for unpaid assessments, and the issuing of new certificates to the purchasers, placed the corporation in a new position, the stockholders who had participated in the proceeding could not he heard to object to it; hut were estopped by their voluntary acts.</p> <p>8. That if, with knowledge of the proceeding, shareholders participated in such action, and for years acquiesced in it, they were bound by it; and the stock which they hold was subjected to the consequences. ,x</p> <p>4. That upon a transfer, by such stockholders, of their certificates, the assignees got no better title or superior right, in respect to the stock, than the assignors had; which was no title at all.</p> <p>6. That the action of the company, in issuing new certificates for the shares to the purchasers at the assessment sales, took away from the original eertificotes all value; and they no longer represented the shares, for the original shareholders had forfeited their stock.</p>

<p>APPEAL from a judgment entered on the verdict of a jury.</p> <p>The opinion states thé essential facts.</p>

APPEAL, by the defendant, from a judgment entered upon the report of a referee, and from orders made at a Special Term. The opinion of the court states the facts in, the case.

APPEAL, by the defendant, from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial.

<p>IN this action, a verdict was directed at the circuit, for $4,985.66 in favor of the plaintiffs ; and the exceptions taken on the trial were ordered to be heard, in the first instance, at the Greneral Term; the judgment in the meantime to be suspended.</p> <p>The defendants, as a firm, made four notes, payable to the order of the Columbian Insurance Company ; one dated November 1, 1860, at twelve months after date, for $500 ; another, of same date, at seven months after date, for $500 ; another, of same date, at seven months after date, for $1,000; and another, dated January 14, 1861, at seven months after date, for $1,330. The notes were delivered to tire insurance company by the makers, as security notes, in advance of premiums to be earned upon policies to-be issued by the insurance company to the defendants.</p> <p>The defence was the statute of limitations.</p> <p>The Columbian Insurance Company was organized in August, 1857, under an act passed April 10, 1849, for the purpose of insuring against marine risks, and risks of transportation and navigation. (Laws of 1849, p. 441, chap. 308.)</p> <p>The notes in suit were given under tíre provisions of section 5 of that statute, and article 3 of the charter of the company; which article, under the head of “security notes,” provides that such notes should be drawn to the order of the company, be payable within twelvemonths from date; that, as to third parties, they were to be deemed the absolute property of the company, and might be used for the payment of losses and liabilities, and for any other purpose connected with the business of the company. That when negotiated, and in the hands of third parties, they should not be subject to any equitable claim or offset, as between the makers and the company, whether existing before the time of their negotiation or accruing afterward. That as between the makers and the company, they were to be liable merely to the extent of the premiums written upon them, and for losses and liabilities of the company, after the cash capital and other resources of the company should have been first exhausted.</p> <p>Wo premium had been earned by the company on any of the notes in suit, and no dividend had been paid to the defendants thereon, although while the company held them, “dividends were declared by the company on its security notes, but no dividends were declared on these notes, because they were not alive—they were not running at the time—they had not been renewed.”</p> <p>After the notes in suit were delivered to the company, and, “in the spring of 1861,” one of the defendants finding that “they had to fail,” went to the office of the company, and saw one of the officers and told him, “that they had to fail, and should not want any more insurance,” and asked the officer to return the notes. This gentleman told him “it was all right,” that he “ must call again as the notes were not handy.” He did call again to get the notes when the same answer was given him. He did not again call, the matter having slipped his memory.</p> <p>The company continued to do business and declare dividends up to January 1, 1866. In January, 1866, they became insolvent, and in the same year the cash capital, and the other resources of the company were exhausted, and thereupon the plaintiffs in this suit were appointed receivers of the property and assets of the company.</p> <p>On the second of February, 1869, and more than seven years after the maturity of any of the notes in suit, this action was commenced.</p> <p>On the trial of the action, and after the plaintiffs had rested their case, the defendants moved to dismiss the complaint upon the following grounds, viz :</p> <p>First. That the pleadings and proofs established the fact that more than six years had elapsed since the causes of action herein had accrued,</p> <p>Second. That the note for |5Q0, dated Wovember 1, ' 1860, and payable twelve months after date, was not such a note as the Columbian Insurance Company was, by the provisions of its charter, authorized to take, and that the plaintiffs herein could not recover on said note.</p> <p>The court allowed the defendants’ motion to exclude from the recovery the twelve months’ note for $500 ; such ruling being in accordance with a decision of the General Term, to the effect that the company could not take security notes, the time of payment of which was beyond twelve months; and that the days of grace on a note payable at twelve months, extended its payment beyond the limit allowed. The verdict therefore did not include that note. But the court denied the motion to dismiss the complaint, because of the defence of the statute of limitations, and the defendants excepted.</p>

<p>ACTION to compel the defendant to satisfy and cancel two judgments the defendant owns, against the plaintiff. The judgments were recovered against the plaintiff in actions of ej ectment for the recovery of the possession of land in the Kortright patent in Delaware county, for the non-payment of rent reserved in a perpetual lease made in the year 1801. In addition to the recovery of possession 'of the land, in the judgments damages and costs were also recovered. One of the judgments was recovered by the defendant in February, 1871. Jn that judgment the damages and costs were $772.31. The other judgment was recovered in the same month and year by Eliza Cruger, in which judgment the damages and costs were $771.58. The defendant purchased and took an assignment of the last mentioned judgment.</p> <p>The defendant was, before the commencement of this action, the owner of the entire interest of the original lessor of the lands recovered in and by said judgments. The plaintiff had the right, as tenant of said lands, under said lease, to redeem said lands by paying the damages and costs in said judgments, and by also paying all rent in arrear on said lease.</p> <p>The only disputed question in the case is, whether the plaintiff could pay the rent in arrear in United States greenback legal tender notes at par, or must pay a greater sum, equal in value to money of Great Britain; or must pay the rent in gold coin.</p>

Nathan Brundage died on the 22d day of June, 1869, leaving a last will and testament, bearing date the 22d day of May, 1858, together with two codicils, one of which was dated August 2,1858, the other May 23,1860. The will and codicils were duly proved before the surrogate of Ontario county, and letters testamentary were issued to the above named plaintiffs, who were designated in the will as executors thereof.

THIS is an action commenced in a justice’s court, where the plaintiffs recovered a judgment. From that judgment the defendants appealed to the county court of Lewis county, where a new trial was had. The plaintiffs, in their complaint, sought to recover on two causes of action.

IH 1851 the father of the plaintiff died, intestate, and leaving a large personal estate. He left surviving him a widow and the plaintiff, who was his only heir. The plaintiff came of age in April, 1871. The defendant was the grandfather of the plaintiff, and he took out letters of administration on the estate of the plaintiff’s father.

THIS is an action of ejectment. The' action was brought to recover a narrow strip of land situate between adjoining farms owned by the plaintiff and defendant respectively, described in the complaint as a strip 114 rods long, and two rods in width, at the south end, and one and a half rods wide at the northerly end, in the town of Conewango, Cattaraugus county. The cause was tried at the October circuit in that county, in 1871.

<p>Tax-payers who have signed a petition to the county judge praying that the bonds of the town in which they reside may be issued in aid of a railroad, have the right to withdraw their names from said petition, on application to the county judge for leave to do so, before a determination has been reached.</p> <p>And if the county judge refuses to permit the applicants to withdraw, and counts them as tax-payers signing the petition, it is error, for which the determination and judgment of the county judge may he reversed.</p>

<p>To render a sale of property void, under the statute relating to raffling and lotteries, the vendor must know that the property sold is to be used in aiding and assisting in a lottery, and is purchased to be so used.</p> <p>The defendants purchased of the plaintiff 300 packages of candy, and 60 pieces of silver ware, with tickets enclosed in 60 of the packages, entitling the one who purchased either of the packages containing a ticket to an article of silver ware named therein. Purchasers of packages had one chance in five of drawing a piece of silver.- The defendants purchased the candy and silver ware to be sold as prize packages, and the plaintiff'knew of the use the defendants designed to make of the packages, and that the title to the silver depended on chance. Held that the plaintiff sold the property to the defendants to be applied to the purposes of a lottery; and that this was a sale for tlie purpose of “ aiding and assisting'” in such lottery, "within the meaning of the statute relating to raffling and lotteries. (2 R. S. 928, 5th ed.)</p> <p>Held, also, that the defendants having sold the packages to others, who sold them singly to purchasers, those persons who sold were the ones who incurred the penalty imposed for selling tickets.</p>

THIS is a case arising upon certiorari, directed to the respondents Hill, Casey and Boynton as railroad commissioners of the town of Ontario in the county of Wayne; to the respondents, Bishop, Dickinson and Middleton, as assessors of said town; and to Albert F. Bedfield, clerk of said county.

<p>A bond was given, by the defendant’s intestate, to the heirs of L., conditioned for the payment of $400, on the death of their mother, “ to them, their heirs or their agents, or whoever they or either of them may designate.” It recited that Jacob and John L., sons of Mrs. L., “ have signed off and relinquished all claim, and are hereby and thereby excluded from such right or share as such heirs, in said sum.” In an action upon the bond, by one of the obligees, the complaint, after setting out the bond, and the release of two of the heirs, alleged that the money mentioned in the bond was due from the intestate for money received out of a farm formerly owned by L.; that the plaintiff was one of the heirs of L., and as such entitled to an equal eighth part of said $400, “ there being eight and only eight heirs, and each is entitled to one-eighth of said sumthat several of said heirs had been paid their respective shares, but the plaintiff had not been paid any part of her share. An express promise to pay was alleged. The defendant, in his answer, set up as a defence the non-joinder of the other seven owners of the farm, as plaintiffs, and, on the trial, moved for a nonsuit, on that ground. Held, that although the bond was, in form, payable to the obligees jointly, yet as the interest was several, the plaintiff was entitled to sue alone.</p> <p>Held, also, that although the promise to pay the plaintiff her proportion might not be founded on a new consideration, so as to enable her to sue and recover upon it, instead of the bond, yet that it might be taken into consideration in determining whether the plaintiff’s interest was jointly with the other heirs, or separately to herself.</p> <p>Held, further, that the defect of parties, if any, could not be taken advantage of by answer, but must be set up by demurrer; the averment in the complaint being equivalent to alleging that the persons not joined as plaintiffs were living.</p> <p>Although it is more in conformity to the established practice to require the successful party to move for costs, yet a judgment should not be set aside— when it appears that the right to costs was clearly established—merely because it was entered up by such party without having obtained an order allowing him costs, on a motion made for that purpose.</p>

<p>An action by assignee in bankruptcy, to set aside a conveyance made by the bankrupt, as a fraud on the bankrupt act, is an action to enforce the law, of which a State court has no jurisdiction.</p> <p>The State courts have concurrent jurisdiction with those of the United States only of actions arising incidentally from acts of congress passed to carry into effect a power conferred upon it by the constitution, and of which the State courts had jurisdiction before the adoption of the constitution; and such an action is one of that class of cases.</p> <p>The acts for which the State courts may set aside conveyances are such as are mala in se ; the act for which the conveyance of a bankrupt is sought to .be set aside as being in fraud of the bankrupt act, is not of that class, but is prohibited by a law which the State courts have no power to enforce.</p> <p>If a conveyance, made by a bankrupt, is fraudulent against creditors, this court has jurisdiction to adjudge it void. Chancery had jurisdiction over that class of frauds before the adoption of the constitution of the United States; and therefore the jurisdiction is concurrent with that of the federal courts.</p>

The complaint, in the first count, alleged that on the 11th day of December, 1861, the defendant, for value received, assigned to the plaintiff a certain judgment. That the defendant, on the 11th day of April, 1865, discharged said judgment of record; and that some of the defendants in said judgment were the owners of certain personal property, which, but for the said discharge of such judgment, would have been liable to execution and sale.

The defendants claimed that the plaintiff did not, in his complaint, set forth any facts showing he had such an interest as is necessary to maintain this action. The premises are a city park. The legislature authorized the city to sell it. {Laws of 1872, vol. 1, p. 1018.) The defendants insisted that the plaintiff had not any interest other than that of a tax-payer, and such as he had as a general citizen of the city.

<p>THIS case is reported ante, p. 43. The following dissenting opinion of Mullir", P. J., was not received in time to be published in connection with the prevailing opinion there given.</p>

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

<p>CERTIORARI to the assessors and railroad commissioners of the town of Scipio, in the county of Cayuga, to review the proceedings of those officers in bonding said town in aid of the New York, Oswego and Midland Railroad Company.</p> <p>Chapter 398 of the laws of 1866, section 1, provides that on the application in writing of twelve or more freeholders, residents of any town in certain counties named in it, of which Cayuga was not one, it should be the duty of the county judge wherein such town is situated, or the Supreme Court at any Special Term thereof, to appoint not more than three freeholders, residents of said town, commissioners to carry into effect the purposes of said act.</p> <p>By the next section the commissioners are authorized to borrow on the credit of the town such sum of money as the tax-paying inhabitants shall fix upon by their consent in writing, not exceeding thirty per cent of the assessed valuation of the real and personal estate of said town, as shown by the assessment roll of said town for 1865. The power thus conferred could be exercised only on the condition that the consent in writing of a majority of the tax-payers of the town, owning or representing more than one-half of the taxable property appearing on the said assessment roll should be first obtained. The consent is required to be proved or acknowledged in the same manner as conveyances of real estate.</p> <p>The consent was also required to state the amount óf money authorized to be raised. The fact that the consent of a majority of the tax-payers representing a majority of the taxable property has been obtained and acknowledged or proved, should be proved by the affidavit in writing of one of the assessors, or by the affidavit of the town or county clerk endorsed on such consent, which are then required to be filed.</p> <p>These things being done, the commissioners may borrow the money, issue bonds and subscribe and pay for stock in the company designated in the consent.</p> <p>By section 3 of chapter 917, of the laws of 1867, the directors of the New York and Oswego Midland Railroad Company are authorized to construct a branch road from any part of its line in the counties of Chenango or Madison, through those counties and Cortland and Cayuga to the city of Auburn, whenever in their judgments it should be for the interest of the company so to do, and the towns along the line of said branch or interested in the construction thereof in any county through which said road should run, should have the same right and authority to subscribe for stock and issue bonds to aid in the construction thereof as is given by the act above referred to.</p> <p>By section 1 of chapter 61 of the laws of 1868 it is provided that in every case where consents in writing shall have been obtained as required in the statutes above referred to, they shall be valid and effectual for all purposes for which they are authorized to be given, and shall not be invalidated, avoided or in any manner affected by reason of the fact that the consents so obtained are based partly on the assessment roll of 1865, and partly on that of 1866, or for any other error, irregularity, omission or defect, provided the consent of the requisite number owning or representing the requisite amount of property, have been obtained as appears by the assessment roll for either of those years.</p> <p>• By section S, it is declared that no consent of taxpayers of any town, in writing, nor the bonds issued upon the faith of such consent, shall be invalidated or held void or in any manner affected by reason of any formal, clerical or other defect, irregularity or omission in the proofs or acknowledgments of such consents, or in the making or entry in the minutes of any determination, or in the affidavits required to be made by any assessor, town or county clerk, or other person or body, or in any filing or recording in any town or county clerk’s office, provided the requisite consents have been obtained.</p> <p>Section 6 of chapter 84 of the laws of 1869 makes the provisions of the last two sections, above mentioned, applicable to all consents obtained since the passage of said sections, and to all such as might be afterward obtained. All consents are required to be based on the assessment roll of 1868.</p> <p>By section 1 of chapter 298 of the laws of 1871, the directors of the said company are authorized to extend their road from the city of Auburn, or from any point on said road easterly or southerly from, said city, upon such route, and through such counties, as the directors shall deem most feasible, to any point on Lake Erie or the Niagara river. Any town in any county through or near which said road or its branches may be located, except such as are excepted from the provisions of the general bonding act, may aid the construction of such road and its branches and extensions by the issue of bonds in the manner provided for in the act of 1866, and the acts amendatory of and supplementary thereto.</p> <p>By the 2d section of the same act the last assessment roll preceding the time of obtaining consents shall be adopted as the basis of such bonding.</p> <p>Upon the application of the required number of the tax-payers of the town of Scipio," commissioners were appointed to borrow money and subscribe for the stock of said railroad company. A paper was filed purporting to be, and which the assessors of said town, by affidavit endorsed thereon, swore contained, the consent of a majority of the tax-payers of said town, representing a majority in amount of the taxable property of said town, and thereupon the commissioners proceeded to borrow money to the amount specified in the consent, and to issue bonds therefor. The assessors make return to the certiorari that on the 26th of August, 1871, they met at the town of Scipio and had present the last preceding assessment rolls of said town, together with the consents,, and the assessors’ affidavit, and after due computation, examination and deliberation, and from their own knowledge of the persons whose names were signed to said consents, did adjudge that it was signed by the requisite number representing the requisite amount of property, and. that the signatures had been duly proved.</p> <p>The objection relied on by the relator’s counsel to set aside the proceedings is considered by the court in its examination of the points presented by his counsel.</p>

<p>When evidence, offered before a referee, is objected to, he should decide the question as to its admissibility at the time the evidence is offered. He cannot reserve that question, and decide it on the final disposition of the cause.</p> <p>The parties are entitled to have such questions passed upon at the time they are raised, so that they can govern themselves, in the further trial of the cause, in the light of, and in reference to, such decision.</p> <p>In an action to recover moneys received by the defendants as attorneys for the plaintiff, which they claimed the right to retain for services rendered in the prosecution of actions in which she was the party in interest, the referee found and reported that in supplementary proceedings in this court wherein the plaintiff was a party, it was determined and adjudged that the sendees of the defendants, in the prosecution of said actions, were of the value of $90b, which sum the clerk was directed to pay. And he found and held, as matter of law, that such proceedings and order of the court were an adjudication as to the value of said defendants’ services, and could not be contradicted or varied by paroi evidence tending to show that an arrangement was made between the plaintiff and her attorneys in relation to any extra allowances that should be made for services in said actions, and her share thereof. Held that such decision was erroneous. That the plaintiff was not such a party to the supplementary proceedings as to be concluded by the adjudication therein, as between her and her attorneys. And the question whether any .part of such allowance of $900, made to the defendants for their services, belonged to the plaintiff, as between her and her attorneys, was not litigated, considered or decided, in the supplementary proceedings.</p> <p>Meld, also, that the referee having expressly held that such adjudication was final and conclusive upon the parties, and could not be contradicted or varied by paroi, the court, on appeal, could not presume and hold that he disre garded his own decision on that point, and gave force and effect to the paroi proof received.</p>

The first count in the complaint contains a cause' of action to recover damages for fraud and deceit in the sale to William Woodbury, Benjamin ‘McLean and John P. Darling, of an interest which the defendant represented that he owned in a lease of oil lands, in the State of Pennsylvania.

<p>APPEAL from an order made at a Special Term, denying a motion made by the relators, for a mandamus to the comptroller of the city of ¡New York,requiring him to pay over to the relators, as commissioners of docks, certain moneys for which they had made a requisition upon him. The motiqn was denied upon the ground that the requisition was not accompanied by any certificate or statement of the purposes for which the money was required.</p>

<p>THIS is an actipn brought to obtain a judicial construction of the will of Patrick Fitzgerald, late of Lansingburgh, deceased.</p>

IN January, 1873, the plaintiff was seised in fee simple of the lands described in the complaint, upon which the defendant William Cooper held two mortgages over due, and upon which he commenced an action of foreclosure. Such proceedings were had, in that suit, that a decree of foreclosure was entered.

<p>A judgment was recovered, in this action, by the plaintiffs, at Special Term, on the 9th, and docketed on the 10th of October, 1866. At that time the defendant was the owner of a lot of land on which the said judgment became a lien. The defendant appealed to the General Term, where the judgment was reversed, and a new trial ordered, October 3, 1867. On appeal to the Court of Ajjpeals, that court, in January, 1873, reversed the order and judgment of the General Term, and affirmed the judgment of the Special Term. In>ternjediate the judgment of the General Term and the judgment of reversal by the Court of Appeals, viz., on the 30th of August, 1869, a corporation purchased and took a conveyance of said lot, from the defendant, for $22,600, fully paid, in good faith. Previous to such purchase and conveyance, a certificate of the fact of reversal had been filed in the clerks office, and an entry made by the clerk in the docket of judgments, opposite the entry of said judgment, showing that the judgment had been reversed. The book submitted to the persons employed by said corporation to pass the title showed the same fact; and the corporation and its officers relied upon such entry, in accepting the title. On a motion to stay execution upon the judgment; Held, 1, That the certificate of the fact of reversal was sufficient authority to the clerk to discharge and cancel the docket.</p> <p>2. That it was only in virtue of the docket that the plaintiffs had any authority 'to levy upon and sell the lot in question; and that being discharged and can-celled, at the time the corporation purchased and took a title, that they acquired the fee, free of the lien of the judgment.</p> <p>3. That th§ lien of the judgment was not restored by the subsequent decision of the Court of Appeals, reversing the judgment of the General Term of this court.</p> <p>4. That the corporation having purchased a title free of the lien of the judgment, the plaintiffs should be summarily and perpetually stayed from all attempts to sell the lot upon the judgment.</p> <p>The court has power to control its judgments and process; and the power may be summarily exercised, to prevent the property of a Iona fide purchaser from being sold.</p>

THE plaintiff has recovered a judgment.against the defendant, upon which proceedings supplementary to execution have been taken, and a receiver appointed. The defendant’s household furniture was insured, in the sum of §200, in the Lycoming Insurance Company, and a loss has happened, said furniture having been destroyed by fire.

APPEAL by the plaintiffs from a taxation of costs by the defendants. The action was commenced in a justice’s court, and a new trial had. in the Lewis county court, and a verdict obtained for the plaintiffs for $85. The defendant moved for a new trial, on a case and .exceptions, which was denied, with $10 costs to the plaintiffs. The defendants appealed from the order denying a new trial, and from the judgment.

The action was brought to recover moneys obtained and received from the plaintiff fraudulently, and when the said plaintiff was intoxicated and incapable of conducting business affairs.

<p>An attorney issuing an execution is liable to the sheriff, for' his poundage thereon.</p> <p>But when a judgment has been reduced in amount, by the court, on appeal, even after levy made upon an execution issued on it, the sheriff is entitled to his fees, or poundage, only on the amount to which the judgment has been reduced; where he has been notified of such reduction, and has collected only the reduced amount.</p>

<p>THIS action was brought to recover damages claimed by the plaintiff to have been suffered or sustained by him by injury to one of Ms hands, in consequence of the pulling out of the coupling-pins which fastened together certain railway cars, used by the Erie Railway Company.</p> <p>The plaintiff was an employee of said railway company, and it was Ms duty to hitch and couple cars as required; and in the ordinary discharge of his duties at the time and place stated, he received the injury for which the action was brought, by reason of the uncoupling by the defendant of some of the cars of the railway company standing oh a side track, near the defendant’s premises, and composing part of a train of eighteen loaded cars so standing and left standing on the said track, over night.</p> <p>. The complaint charged, and the evidence tended to prove, that the defendant, at the time,- &c., secretly and with the wanton and malicious purpose to injure and destroy the property of the said railway company and obstruct the running of trains upon said railway, pulled out, removed and threw away the pins used in coupling together the cars of said t-raim The cause was tried at the Wyoming circuit. The defendant’s counsel requested the court to charge the jury that if they found that the defendant uncoupled the cars at a time when no engine was hitched to them, and departed, and subsequently an engine was hitched to the cars by the company or its employees, and that the plaintiff was injured in the act of coupling the cars together, which were uncoupled by the defendant, by reason of the cars being put in motion by-the engine, then the defendant was not liable. The court refused so to charge, and the defendant’s counsel excepted.. The defendant’s counsel further requested the court to charge the jury that if they found the actual injury to the plaintiff was inflicted by the two cars striking together, which were put in motion by an engine hitched to the cars by the railway company or its employees, the defendant was not liable. The court refused so to charge, and the defendant’s counsel excepted. The counsel for the defendant further requested the court to charge the jury that if the injury to the plaintiff was caused by the combined act of the plaintiff in endeavoring to couple the cars, and the car by the motion imparted to it by the engine, the defendant was not liable. The court refused so to charge, and the defendant’s counsel duly excepted. The jury found $400 for the plaintiff. Judgment was rendered thereon, and the defendant appealed.</p>

HIS action, was brought to recover damages of the defendant for false and fraudulent representations made by him, that there were no daisies or other foul weeds on a farm owned by the defendant, and which the plaintiff was negotiating with him to purchase.

<p>HIS action was brought by the plaintiff as surviving partner, -to recover for castings and other articles sold and delivered by the firm, of which he' was a member, and used in the construction of steel works at Clifton, in the county of St. Lawrence. The articles were delivered from time to time between the 90th of April, 1868, and the 91st of July, 1869. At the prices for which'they were delivered, they amounted to the sum. of $7,640.59 ; and they were all used about the construction of the steel works: They were contracted for, and ordered by, John B. Morgan, who had the superintendence of the erection of the works. The contract was made by him with Patrick Hackett, who was clerk and agent of the plaintiff’s firm. The steel works were commenced by a joint stock company, or association, consisting of seven associates, and called, “The Clifton "Steel Association.” The agent, Morgan, who contracted for and ordered the articles delivered by the plaintiff’s firm, was one of the associates. ' The association continued the construction and erection of the steel works until the 17th of October, 1868. On the 5th of that month a corporation was formed by some of the associates in the Clifton Steel Association, and called “The’Dannemora Steel Works of Clifton.” The principal object to be accomplished by the association was the erection of steel works at Clifton, and of the corporation, was the manufacture of steel by means of such works. When the association was formed, it was provided, in its articles, that a corporation should be formed when the works were completed, provided that was deemed best by a.majority of the associates. The corporation was formed under that stipulation, before the entire completion of the steel works. And on the 17th day of October, 1868, the association sold and transferred the steel works, and all its other property and rights in action, to the corporation, and the latter assumed and agreed to pay all the debts of the association. From that time until all the articles contained in the plaintiff’s account had been delivered, the corporation continued to be the owner of the steel works, and proceeded with their completion, so far as to make use of all such articles. But at no time was the power or authority of Morgan in any way ostensibly changed. He continued to act in the same manner after the formation of the corporation as he previously had done under the association. And no information was given to the plaintiff’ s film, or its agent, Hackett, of the change made after' the formation of the corporation, further than it might have been inferred from two drafts being afterward drawn by Morgan in favor of the firm, on the president of the corporation, and received by the firm.</p> <p>At the time when the contract was first made between Morgan, who acted on behalf of the association, and Hackett, the agent and clerk of the plaintiff’s firm," neither of them, nor any member of the firm, had any knowledge or information, as to who were engaged, or interested in the erection of the steel works, beyond Morgan, the defendants, and Samuel B. Smith. And neither the plaintiff’s firm, nor Hackett, heard or knew of the formation or existence of the association until after the steel works and all its other property had been transferred to the corporation.</p> <p>After such transfer, and on the 4th of January, 1869, Morgan drew and delivered to the plaintiff’s firm a draft upon Samuel B. Smith, as treasurer of the -Dannemora steel company, for the sum of $2,000, to apply on the account the firm had for the articles furnished by it for the construction of the steel works; which was afterward accepted by Smith, as treasurer of the corporation. On the 17th of February, 1869, another draft was drawn, • in the same form, by Morgan, and delivered to the firm, for $2,546; which was the balance then remaining of the price of the articles furnished, after deducting the amount of the' preceding draft. The second draft- was also accepted by Smith in his official capacity. The first of these drafts was due in sixty days, and the second in three months from date. When the second was received, the firm receipted the account as paid by the draft, but it was found as a fact that the drafts were not accepted in payment of the account. These drafts were not paid, but were afterward sued and put into judgment by the plaintiff, as the surviving member of the firm, against Morgan, the drawer and endorser, and the Dannemora Steel Works. But nothing was ever collected on the judgment. The plaintiff’s copartner died on the 16th oí February, 1869, and the business of the firm was afterward carried on by the plaintiff as survivor. In that capacity he brought an action for the recovery of the entire demand remaining unpaid, which had accrued for the articles furnished to and used in the erection of the steel works, against Samuel B. Smith, president of the Clifton Steel Association, and recovered judgment for the same. After the return of an execution unsatisfied against him as president of the association, this suit was brought for the recovery ,of the same demand, agains tthe defendants. It was referred to a referee, who reported in favor of the plaintiff for the sum of $5,159.03, besides interest; which was the balance remaining unpaid after deducting the value of iron and other property received from the association. Judgment was entered upon the report, and from that the defendants appealed.</p>

<p>A special guardian, appointed to sell the real estate of an infant, gave a bond, conditioned to perform the trust reposed in him, and to pay over, invest and account for, all moneys that should be received by him, according to the order of any court having authority to give directions in the premises, and to observe the orders and directions of the Supreme Court in relation to said trust. Such guardian was, by an order of this court, authorized to seE and convey aU the “rigid, title and interest” of said infant in and to certain lands which had descended to her from her ancestor subject to a mortgage thereon; and he did seE to H. for the consideration of $6,600, aU the right, title and interest of the said infant in and to an undivided one-third part of” said lands.</p> <p>Held, 1. That this was a clear sale and conveyance of the equity of redemption of the infant in said lands, and nothing more.</p> <p>2. That the special guardian was bound to account to the infant for the purchase money, less the sum of $1,300 which he had paid to the widow, for her right of dower in said lands.</p> <p>3. That having omitted and neglected to account for the balance of the purchase money, and to invest the same according to the terms of the sale and the order of the court affirming the same, this was a clear breach of his duty as special guardian, and a breach of the condition of his bond. '</p> <p>4. That H., the purchaser, took the land subject to the equitable encumbrance, claim or lien of the mortgage thereon, but without any claim upon the infant, or the estate of her ancestor, in respect to such claim or lien. And the special guardian had no right to pay any portion of the proceeds of the sale, upon such mortgage.</p> <p>6. That it was no excuse for not complying with the condition of his bond, for the special guardian to show that he was administrator of the estate of the infant’s father, or that such estate was insolvent, and he had wrongfully taken the funds which came to his hands as special guardian, and had, without the order or aUowance of the court, used and misappropriated them as such administrator.</p> <p>6. That although the court had yet control over the proceedings for the sale of the land, and jurisdiction over the special guardian, as such, and might, upon a proper application and on proper terms, stiE aEow him to fulfiE his duty, and make a report of the sale, showing what he had done with the proceeds ; yet that whüe he was practieaEy in contempt for disobeying an order of the court requiring him to make such report, no intendment should be made in his favor</p>

HIS is an appeal, by the plaintiff, Horn an order of the Special Term sustaining a demurrer to the complaint. The plaintiff, as trustee, is seised of an undivided one-fourth part of certain premises, as tenant in common with the defendants. The trust is to receive the rents and profits and apply the same to the support, education and maintenance of. Charles R. Gallie until he shall attain the age of 21 years.

THIS is an action commenced in a justice’s court, and after a verdict for the plaintiff, appealed to the county court of Seneca county, and retried. The action was brought to recover damages for the non-fullment by the defendant of a contract for the sale of twenty-five sheep.

<p>APPEAL from a judgment entered upon the report of a referee.</p> <p>The action was brought to compel the surrender and cancellation of certain bonds purporting to be issued by the plaintiff to aid in the construction of a railroad from Lake Ontario to the New York & Erie or Cayuga & Susquehanna railroad, pursuant to an act of the legislature of this State passed April 16, 1852, entitled “An act to authorize any town in the county of Cayuga to borrow money for aiding in construction of a railroad from Lake Ontario to the New York & Erie or Cayuga & Susquehanna railroad.” (Laws of 1852, ch. 375.)</p> <p>By that act it was provided that the supervisor of any town of said county, together with the assessors, should be commissioners to borrow on the credit of the town a sum not exceeding $25,000, for a term not exceeding 20 years, and to make and deliver bonds for the same. The money so raised was required to be paid over to the president and directors of such railroad company, organized under the general railroad law, as might be designated by the written consent of two-thirds of the resident tax-payers of the town, to be expended in grading &c., a railroad or railroads passing through the city of Auburn and connecting Lake Ontario with the Susquehanna & Cayuga or the New York & Erie railroad. It was expressly provided, in and by said act, that the commissioners should have no power to do the acts authorized thereby until a railroad company had been organized under the general law, and the written consent of two-thirds of the tax-payers of the town, whose names appeared on the last assessment roll of the town preceding the borrowing of the money, obtained and filed in the clerk’s office of Cayuga county, together with an affidavit of the supervisor and ■ commissioners, or any two of them, attached to such statement, that the persons whose written assents were thereto attached and filed, comprised two-thirds of all the resident tax-payers of said town on its assessment roll next previous thereto.</p> <p>The act further provided that on filing such consent and affidavit, the commissioners might subscribe and pay for stock in such company to the amount of money so borrowed.</p> <p>It was further provided, that the commissioners appointed by the act should continue to act until the next town meeting, when two commissioners should be elected to act with the supervisors, and the acts of a majority should be valid and binding.</p> <p>A railroad company was organized to construct a road from Lake Ontario to the Susquehanna railroad, through the city of Auburn. The commissioners issued bonds to the amount of $25,000, payable in 20 years, and attached thereto interest coupons. The commissioners subscribed for the stock of said railroad to the amount of $25,000. The directors called for payments upon said stock, and the commissioners sold to Amos Hutchinson three of said bonds, numbered 1, 2, 3, and received from him $3,000, which they paid over to the treasurer of the railroad company to apply in payment of said stock. About the same time said commissioners sold and delivered to the defendant Lyman Murdock two others of said bonds, and received from him $2,000, which they paid to the treasurer, to apply on the stock.</p> <p>On the 11th of October, 1853, the commissioners sold and transferred directly to the railroad company 19 of the said bonds, and on the 1st of November, 1853, one other bond, making in all 20 of said bonds, to the railroad company, in payment of the amount remaining due on said stock.</p> <p>The railroad company delivered to said commissioners, for the benefit of said town, scrip for said stock, and which scrip has never been surrendered to said company.</p> <p>The town paid, for some three or four years, the interest on the bonds issued in payment for said stock, and then refused to pay anything more, on the ground that the bonds were issued in violation of the statute, and were not binding on said town.</p> <p>The moneys paid by Hutchinson and Murdock for the bonds transferred to them have not been repaid.</p> <p>Those who purchased the 20 bonds of the railroad company did not know, when they made the purchase, that they had been delivered directly to the railroad company by the commissioners.</p> <p>The consent in writing of two-thirds of the resident tax-payers had not been obtained before the making and delivery of said bonds, nor at any time since..</p> <p>The referee, to whom the issues in the cause were referred, found the foregoing facts, and ordered judgment dismissing the complaint, with costs, and from the judgment so entered the plaintiff appealed.</p>

<p>The defendant purchased a house and lot, and without any request from the plaintiff, (his daughter,) or any intimation from him of his intention to give her a deed thereof, directed the deed to be made to her, and it was so made and delivered to him by the grantor. The defendant afterward informed the plaintiff of what he had done, and she assented to it, and requested him to put the deed on record; which he agreed to do.</p> <p>Held, 1. That, it could not be questioned but that the defendant intended the title should pass from the grantor; nor but that it could not pass to the grantee, unless there was a delivery of the deed. That the delivery to the defendant was for the plaintiff; and such delivery vested the title in the plaintiff.</p> <p>2. That the conveyance to the plaintiff was by way of advancement, and the defendant held it for her benefit. She paid nothing for it, and nothing was demanded from her, for it. That in such a case the title passes, although ■ the deed may be retained by the grantor; unless the existence of an intention that it should not pass until an actual delivery is clearly established.</p> <p>And the defendant having subsequently upon the promise “ to make it all right” with her, induced the plaintiff to convey the house and lot to a third person, in part payment of the purchase money of a farm purchased of him. by the defendant; Held, in the absence of any evidence that the plaintiff intended to give the house and lot to the defendant, or that he understood the property was given to him, the defendant became indebted to the plaintiff for the value thereof, and the latter could maintain an action to recover that amount, with interest.</p> <p>Held, also, that the defendant became, instantly upon the execution of the deed by the plaintiff, the debtor, to her, to the value of the house and lot; and it was his duty to pay it on the spot; no credit being given, or contemplated, unless security was given. ></p> <p>Declarations of the defendant, made to an assessor who called on him for the purpose of assessing his property, that the house and lot belonged to the plaintiff, were objected to as immaterial and incompetent, on the ground that it was proving title to land by oral evidence; held, that it being obvious that such was not the object of the evidence, but that it was received by the court as-bearing on the question of the delivery of the deed, it was for that purpose competent.</p> <p>The defendant’s counsel offered to prove that the purpose of the defendant, in taking the deed in the name of the plaintiff, was to keep it in his own possession, with a view to delivering it to her in case they effected a subsequent arrangement, by which he should have certain rights in consideration of the deed. Held that this being, in substance an offer to prove the undisclosed purposes of the defendant—the operations of his own mind—the evidence was properly rejected.</p> <p>Such evidence is never admissible to affect the rights of third persons; unless where a party’s intention becomes a legitimate subject of inquiry. Per Mullís, P. J.</p> <p>Although remarks were made by the judge, in Ms charge to the jury, that, standing alone, could not be approved; yet, if the general bearing and scope of the charge was right, and the erroneous remarks did not do any injury to the unsuccessful party, the court will not set aside the verdict for that cause.</p>

<p>In view of the difficulties under the modern system of transporting goods by connecting lines of railroads <fcc., in the way of shippers seeking redress in case of injury or loss, it is necessary that the courts should so modify the rules of evidence as to render redress possible, while the. defendant is not exposed to be charged when liability is not established with reasonable certainty. Per Müllin, P. J.</p> <p>Proof of the course of business adopted by connecting lines of railway should be received as competent evidence, on the question of the receipt or delivery of property by the one to the other.</p> <p>If books are kept by the agents of a company, in which are entered the receipt and delivery of property by such company, such books, when shown to belong to the company—of which the use by the agent, in the company’s business, is prima facie evidence—are also competent evidence, prima facie, of the entries therein; and it is not necessary to prove that the entry is in the handwriting of any agent or servant of the company, provided it be made to appear that the entries have been made in the same handwriting for such a length of time as to satisfy a jury that the person making the entries was a recognized agent of the company, and as such authorized to make such entries.</p> <p>C., the agent of the plaintiff, delivered to the agent of the New York Central Bailroad Company at Victor, N. Y., a box of tools belonging to the plaintiff, directed to him at B., Mich., to be carried by said company to Suspension Bridge, and from there to be forwarded, by connecting roads, to B. The box was never delivered to the plaintiff. In an action against thq defendant, whose road connected with the New York Central, at Suspension Bridge, to recover the value, it appeared on the trial that B. was situated on the line of the Michigan Southern and Northern Indiana Bailroad Company, which joined the defendant’s road at Detroit. A booh kept by P., one of the defendant’s freight agents at Detroit was produced, containing this entry: “Car 303, April 21st, 1866. Noah Root, Burr Oak, B. county, Mich. One box of goods.” P. had charge of the delivery of freight from the defendant’s road to the Michigan Southern and Northern Indiana Railroad Company. The witness who identified the book could not swear that the entries therein were in the handwriting of P., but to the best of his knowledge they were. A clerk and cashier in the office of the Michigan Southern and Northern Indiana Railroad Company at Detroit testified that it was his duty to receive and disburse moneys, and to see to freight matters; that he had general charge of the freight books, but knew nothing of the box in question; that the bill ought to have come into his hands, if the box was delivered to his company, and it did not; that the defendant made charges for back freight on this box, against his company, which it had refused to pay, because it had not received the box.</p> <p>Held, 1. That the book was properly received in evidence; and if the entries therein were competent testimony, the receipt of the property by the defendant was satisfactorily established.</p> <p>2. That if the property was received at Detroit, it must have been taken by the New York Central Railroad Company from Victor to Suspension Bridge and there delivered to the defendant.</p> <p>3. That the defendant having received it, it devolved upon the defendant to show its delivery to the Michigan Southern and Northern Indiana Railroad Company; and that having failed to do so, it must be held liable for its value.</p> <p>Held, also, that the defendant, although a foreign corporation, having appeared and answered, it was not necessary for the plaintiff to prove its incorporation.</p> <p>And that if the plaintiff was obliged to prove the defendant’s incorporation, the laws of Canada were sufficient for that purpose.</p> <p>Held, further, that the plaintiff must be deemed to be a resident of B., Mich., and the cause of action the breach of the contract to carry and deliver to the Michigan Southern and Northern Indiana Railroad Company, which breach, it was to be implied from the course of business between the connecting roads, occurred either in Canada or Detroit. And that in this condition of things the action could not be brought in this State, (Code, § 42Y,) but as no question was made on the trial, that the plaintiff was a non-resident, a judgment in his favor was affirmed.</p> <p>The non-residence of the plaintiff, in an action against a foreign corporation, is matter in abatement merely, and is waived by appearing and pleading in bar.</p>

<p>In an action for slander in uttering words not actionable per se, the plaintiff, in order to recover, must allege and prove special damages, and the special damages must be particularly stated in the complaint.</p> <p>An allegation, in the complaint, that the false and slanderous statements of the defendant greatly injured the plaintiff, and caused her relations to slight and shun her, does not specify any pecuniary injury for which a recovery can be had.</p> <p>Where a complaint contains but one valid count, only one slanderous charge can be proved. Evidence to prove another conversation, in which other and different words from those alleged in the complaint were used, is inadmissible."</p> <p>But when the plaintiff does not go heyond the words laid in the complaint, he may show that those words were spoken on several different occasions, although there may be but one count in the complaint.</p> <p>It is well settled that other defamatory words, not alleged, cannot be proved; because, if they are slanderous, another action would lie for them, and a plaintiff would recover two compensations for the same injury. And if they are not slanderous, or if they were not followed by special damages, they are wholly immaterial. Such evidence is not competent on the question of malice.</p> <p>Where a witness testified that the defendant told him that the plaintiff had been having unlawful criminal intercourse with other men about D.; that she was having, and had been having, for two years, criminal intercourse with different young men about D.; that she had had intercourse with so many she did not know who was the father of her child; held that this language was, in substance, a charge that the plaintiff was a public prostitute, and was therefore evidence in support of a count alleging the slanderous words to have been that the plaintiff was “ a public whore.”</p> <p>Every person whp repeats slanderous words is liable to the person injured by means of such words; unless the circumstances under which they were uttered, or the proofs in the case, show that they were uttered without malice, or, in other words, that they were privileged.</p> <p>In an action for slanderous words, not actionable pm- se, the plaintiff may not prove that the- special damage alleged in the complaint was caused by hearing that the defendant had uttered the words charged against him. In order to admit such evidence, it must be made to appear, 1. That the slander induced the special damage; 2. That the defendant uttered the words either in the hearing of the person, or that the slander was communicated to him by one authorized by the defendant to do so; or that the communication was, as to the person making it, privileged, or otherwise wholly without malice.</p> <p>Where the special damage alleged was that the plaintiff was, by reason of the slander, turned away from her uncle’s house, where she resided; held that if this was the natural and immediate consequence of the slander, it was such pecuniary damage as would sustain the action.</p> <p>Held, also, that it was for the jury to say whether the plaintiff was turned away from her uncle’s on account of the slander; and that that question having-been properly submitted to them, and they having found for the plaintiff, the court could not disturb the verdict.</p> <p>Held, further, that the circumstance that a great length of time had elapsed between the speaking of the words and the dismissal of the plaintiff from her home, was proper for the consideration of the jury, and would have warranted the conclusion that it could not be true that the plaintiff was turned away by reason of the slander.</p> <p>When a person repeats, again and again, a slander, after being urged not to do so, and follows it up by saying that he can prove it, and expressing a desire to have an opportunity to do so, all ground for pretending that the words were privileged, is taken from the case.</p> <p>A mistake of the court, in placing the admission of evidence on an untenable ground, is not sufficient reason for reversing the judgment.</p>

A PPBAL, by the defendant, from a judgment entered upon the report of a referee. The action was brought to recover the value of services rendered by the plaintiff and his wife, and for money received by the defendant of the plaintiff. The claim was for services from 1843 to 1862, but the referee found only for the value of the services rendered from 1856 to 1862, the action being commenced in the latter year.