Volume 65 — New York Reports

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming a judgment in favor of plaintiff entered upon the report of a referee.</p> <p>This action was brought to recover the amount paid by plaintiff for taxes and water rates assessed upon certain premises owned, by Mm in the city of Albany, and leased by him to the defendant, wMch, by the lease, defendant agreed to pay.</p> <p>The answer set np an eviction by the plaintiff, and as a defence or counter-claim, damages by reason of the alleged interference of plamtiff with defendant’s possession.</p> <p>The referee found in substance as follows : That, on the 9th of April, 1868, the plaintiff executed to defendant a lease of certain premises on Swan street, in the city of Albany, for the term of two years, from the 1st of Hay, 1868, the defendant agreeing to pay therefor an annual rent specified, and the ordinary taxes and water rates of the said premises, and the necessary repairs and alterations thereof. That the defendant ran a street" railway m State and Washington streets, in said city, and on the execution and delivery of the lease, entered into the occupation of the premises, using the same for workshops, stables and stable yard. That, prior to the lease, the defendant had occupied the premises for the same purposes, and had constructed a branch track from their main road on Washington street along Swan street, to the front of the demised premises, and from thence curving into the same, over a wooden bridge, wMch the defendant constructed over the gutter next to the sidewalk; thence across the sidewalk, and by means of said branch track the defendant was enabled to move its cars mto or upon the premises aforesaid. That, on the 'Tth of September, 1868, the mayor, aldermen and commonalty of the said city of Albany, by an ordinance of that date, ordered and enacted that the city superintendent cause Swan street to be excavated, graded, repaved, recurbed and reflagged, and the expense to be assessed upon the owners of property benefited. That the street superintendent took proceedings in accordance with said ordinance, and advertised for proposals to do the work required. That notice was given to said superintendent by the plaintiff, that he would Mmself do the work required in front of his premises ; that, by Ms agents, he began and prosecuted the work with proper diligence, under the circumstances, to its completion, and it was performed according to the requirements of the ordinance, except in a single particular, in which it was varied therefrom for the accommodation of the defendant in respect to its occupancy of said premises. That, in the performance of said work, it was necessary to excavate and lower the grade of Swan street, along the entire front thereon of the said demised premises, to the extent of from six to eight feet; and that it was also necessary to remove the track and curved track of the defendant; that the plaintiff applied to the defendant to remove the track, but the latter refused to do so, and protested against any disturbance thereof or of his possession of the said premises ; and that the plaintiff, after such refusal and protest, caused the removal of the said track in carrying out the provisions of the said ordinance. That, by reason of the said grading and excavations, the defendant was greatly inconvenienced in the use of the premises so demised to him, and was obliged to abandon the entrance on Swan street, and the use of a car-house for the storage of its cars, and to build a new one and to construct a new track to another and different entrance to the demised premises, and to make other alterations in and upon said premises. That the value of the use of the premises to the defendant was impaired by the alterations in the street. That the city superintendent acted, in accepting the performance of said work by the plaintiff, pursuant to ordinances of the city of Albany then in force, and in force also at the date of the lease.</p> <p>Plaintiff could not claim rent during the time defendant was deprived of the use of the demised premises. (Laws 1860, chap. 345, p. 592; Peck v. Hiler, 24 Barb., 178; Christopher v. Austin, 1 Kern., 216; Dyett v. Pendleton, 8 Cow., 927; Edgerton v. Poige, 20 N. Y., 381; Cohen v. Dupont, 1 Sandf., 260; Lounsbery v. Snyder, 31 N. Y., 514; Rogers v. Ostrom, 35 Barb., 523.) Defendant’s damages were a proper counter-claim against the rent. (Blair v. Caxton, 18 N. Y., 529 ; Kelsey v. Ward, 38 id., 83; Staples v. Anderson, 3 Robt., 327.) Defendant could claim damages, although they were not caused by any act of the landlord, but by a title paramount. (Moffat v. Strong, 9 Bosw., 57; 18 N. Y., 529.) A covenant by the lessor is always implied in every lease to defend the lessee in quiet enjoyment of the premises against all persons whatsoever. (Mack v. Patchin, 42 N. Y., 167.)</p> <p>Plaintiff had a cause of action against defendant. (legeman v. Kloppenbury, 2 E. D. S., 126; Laws 1858, chap. 86, § 37, p. 133.) Defendant’s damages constituted no counter-claim or defence. (Edgerton v. Page, 20 N. Y., 281; Laws 1842, pp. 343, 348, §§ 29, 45.) Plaintiff and defendant contracted with reference to the powers of the city to alter the grade and the consequences flowing therefrom. (Folts v. Huntley, 7 Wend., 210; Laws 1864, chap. 183.)</p>

(Reported below, 61 Barb., 335.) The action was brought upon a policy of fire insurance. The defence was, that certain warranties in the policy had not been complied with. It was also claimed that the ownership of the goods insured had been parted with, so that the insured had no interest at the time of the loss.

The nature of the action and the facts are sufficiently stated in the opinion. The contract was released and discharged. (51 N. Y., 13; Cent. Bk. v. Heydorn, 48 id., 260 ; Belmont v. O’Brien, 12 id., 394; Jackson v. Wood, 12 J. R., 245; Jackson v. Pratt, 10 id., 392.) The deeds to third persons did not repel the presumption of release. (Wakeman v. Sherman, 9 N. Y., 91; 2 Story Eq.

<p>The filing of a notice of suit pending, and the levy, by virtue of an attachment upon real estate formerly owned by the defendant but sold and conveyed, to the knowledge of the plaintiff, prior to the filing and levy, does not defeat the title of the purchaser, if regular in all respects, save that his conveyance is not recorded; nor is such title subordinated to the lien of the attachment.</p> <p>The provision of the Code (§ 132), providing for the filing of lis pendens, making it constructive notice to a purchaser, and declaring that a purchaser whose conveyance is subsequently executed or recorded shall be ' a subsequent purchaser and shall be bound by the proceedings, simply affects such purchaser “to the same extent as if he were made a party ” to the action; and the title of a purchaser so holding under a prior unrecorded conveyance, if made a party, could not, under such circumstances, he affected when plaintiff, at the time of filing notice, had actual or constructive notice of his rights.</p> <p>Stern v. O’Connell (85 N. Y., 104) distinguished and limited; Sovey v. Sill (8 Lans., 167) distinguished.</p> <p>Under an execution, issued in an action wherein notice had been filed and attachment issued and levied as aforesaid, the sheriff sold and subsequently conveyed all the estate in the premises of which the judgment debtor was seized and possessed on the day judgment was perfected. In an action of ejectment by one claiming under the sheriff’s deed, held, that as prior to that day the judgment debtor had conveyed and then had no estate, nothing was conveyed by the sheriff’s deed.</p>

The action was brought to have a certain mortgage or deed of trust given by defendant the Black Hawk Gold Mining Company declared void, and for other relief. In 1864 that company was organized as a corporation under the general manufacturing laws of this State, to work certain gold mines situate in Gilpin county, in the Territory of Colorado, and it acquired the title to several mines there and continued to work the same until May, 1866.

This action was brought to recover damages for injuries alleged to have been inflicted upon plaintiff by the dogs of defendants. Defendants were the owners of a factory on Barren Island; their premises were uninclosed. They owned and kept thereon seven large dogs which the evidence tended to show were vicious and ferocious, rushing out at and pursuing people coming on or near the premises, and that defendants had knowledge of their propensities.

(Reported below 5 Bans., 397.) This action was brought by the plaintiffs, as owners of mill sites in the city of Rochester, to restrain the defendants from closing the basin, known as Child’s basin, in that city. An injunction was granted in the cause exponte, upon the complaint. It was dissolved upon notice, and the order to that effect was affirmed at General Term.

This action was brought to set aside certain conveyances from John Orawford to Samuel J. Glassey, and from Glassey to Sarah E. Crawford, as being without consideration and fraudulent as to the plaintiff, a creditor of said John Crawford, and to apply the property so conveyed to the payment of a judgment recovered by the plaintiff against the said John Crawford.

The plaintiff, in 1869, commenced a suit in the Marine Court against defendant by short attachment, based on affidavits showing the facts required by sections 34 and 35 of the act of April 26, 1831, commonly called the Stillwell act. (Chap. 300, Laws of 1831.) The defendant was a resident of the city of Mew York.

This action was brought for an alleged conspiracy, by which a quantity of gloves were fraudulently obtained from the plaintiff by the, defendants. The defendants, originally, were Lazarus Minster, Samuel Minster, Caroline Minster, Moms Kohn and James Sherlock. The last named defendant was not served.

<p>A party to an. action is not prohibited by section 399 of the Code from testifying to a transaction or communication between himself and a deceased agent of the opposite party.</p> <p>He may testify also to a conversation/ heard by him, between a principal and agent, both deceased, as against a successor in interest of the principal.</p>

(Reported below, 3 J. & S., 563.) • TMs action was brought upon two bills of lading issued by defendant.

This was an action .of trespass, alleged to have been committed on lots 107 and 108, in a patent of land known as “ Glenn’s patent.” The facts appear sufficiently in the opinion. As against a person who had no title, plaintiff’s possession was sufficient to maintain trespass as against defendants.

<p>Appeal from judgment of the General Term of the Supreme Court of the fourth judicial department affirming a judgment in favor of plaintiff, entered upon a decision of the court at Special Term. (Reported below, 5 Ians., 372.)</p> <p>The action was brought to foreclose a lien upon a canal boat for .repairs. John Minney, the owner, and the appellants, mortgagees of the boat, were made defendants. The mortgagees alone defended. The court found the following facts: That the plaintiffs were, during the year 1870, copartners, in the city of Oswego, engaged in the business of building and repairing canal boats, and that they kept a drydock for that purpose; that, during the fall of 1870, John Minney, being the ostensible owner and master of the canal boat “ Two Brothers,” caused her to he repaired at plaintiffs’ dock; that plaintiffs repaired her by necessary repairs, to the amount of $1,084.48; that Minney neglected and refused to pay for such repairs, and the plaintiffs retained the boat in their possession, claiming a lien thereon for the amount of their repairs; that prior to the making such repairs, Minney had run the boat in the canals of this State as master and owner, and while engaged in running her she was foundered and sunk, and required repairs to put her in condition for navigation; that, during the time of the making of such repairs, the defendant Delahunt had knowledge thereof, and did not object nor protest against the making of the repairs; that said defendants also had knowledge that the said Minney had purchased the said boat, and was running her as master and owner; that the said defendants held a mortgage on said boat, upon which $600 was unpaid, and which was a valid lien thereon, and that the same had been forfeited a long time before the making of said repairs; that said defendants had neglected to take the boat into their possession, and only claimed a lien thereon to the extent of the unpaid amount due on the mortgage; that said Minney purchased the said boat subject to the aforesaid mortgage, and run the same as owner and master until the making of said repairs.</p> <p>And he found and decided, as matters of law, that plaintiffs’ lien for the repairs was superior to the lien of the mortgage of the defendant Delahunt, and that they were entitled to a judgment of foreclosure of said lien, in pursuance of chapter 738 of the Laws of 1869, and he ordered judgment accordingly, providing that plaintiffs’ lien should be first paid out of the proceeds of the sale of the boat. Defendants excepted . to the conclusions of law.</p> <p>Minney had no power to pledge or create a lien on the boat beyond his interest in her. (3 Kent’s Com., 133, 171; Spaights v. Hawley, 39 N. Y., 441; Bissell v. Pearce, 28 id., 252; King v. Franklin, 2 Hail, 1.) The common law and statutes in relation to ships and vessels apply only to those in tide-waters or ocean-bound vessels. (5 Hill, 546; 17 J. R., 53; Hicks v. Williams, 17 Barb., 527; 5 Abb., 461; 8 Bosw., 171.) Defendants were not estopped by any acts or omissions on their part. (Brown v. Brown, 30 N. Y., 519-526; Jewett v. Miller, 10 id., 402; Wilcox v. Howell, 44 Barb., 396; Young v. Bushnell, 8 Bosw., 1; Catlen v. Grote, 4 E. D. S., 296; Merrill v. Tyler, Seld., Notes, Nos. 2, 47.)</p> <p>Plaintiffs’ lien was of the same force and nature as an innkeeper’s lien at common law. (Robinson v. Walter, Popham, 127; Grinnell v. Cook, 3 Hill, 490.) Plaintiffs’ lien was prior to the lien of the mortgage. (Williams v. Allsop, 10 C. B. [N. S.], 416; Weaver v. Owens, 1 Wal. Jr., 368.)</p>

(Reported helow, 5 Lans., 206.) This action was ejectment to recover the basement of á church. The material facts are as follows: The High Dutch Reformed Church of Schoharie was an old church organization, whose records extended back as far as the year l'TSO. It had transacted business as a regular church corporation, and had a corporate seal.

Appeal by defendant from the judgment of the General Term of the Superior Court of the city of Hew Tort in favor of plaintiff, entered upon an order denying a motion for a new trial, and directing judgment upon a verdict. (Reported below, 3 J. & S., 73.) The action was to recover for the alleged wrongful conversion of fifty shares of the capital stock of the Columbian Insurance Company.

<p>Where a-telegraph, company furnishes its customers printed blanks containing the terms upon which it proposes to transmit messages, a delivery to the company for transmission of a message written upon one of such blanks is an acceptance of the terms and constitutes a contract between the parties.</p> <p>Plaintiffs delivered to defendant for transmission a message written upon a blank so furnished by it, which contained a clause to the effect that the company would not be liable for damages in any case unless a claim therefor should be presented in writing within sixty days after sending the message. The message was not correctly transmitted. An imperfect statement of the damages claimed was presented by plaintiff’s agent to the operator or receiving clerk in defendant’s office, who, after examining it, handed it back to the agent, stating he had nothing to do with it, referring the agent to the officers of the company. He went to the officers’ rooms, but found them absent. Ho other claim was presented until after the expiration of the sixty days. Held, that the agreement was consistent with public policy; that the presentation of the incorrect claim to the operator or clerk was not, in the absence of evidence that any power or duty in reference to the subject-matter had been conferred upon him by defendant, a compliance with the condition, and that defendant was not liable.</p>

This action was upon an award. The parties executed, each to the other, an arbitration bond conditioned to submit certain matters in controversy between them to three arbitrators who were to make their award in writing, ready to be delivered to the parties on or before the 1st day of June, 1867. The arbitrators made their award May 31, 1867, in favor of plaintiff.

decision of the court upon a trial without a jury. The action was brought upon a promissory note. The answer, among others, contained the following count or defence: “ IV.

The return to the summons issued by the justice was as follows: “ Served, copy left the 9th day of February, 1869, by David Wallace, constable.” On the return day the plaintiffs appeared and complained. One Silas Crandall appeared and answered for defendant. There was no proof whether Crandall was or was not, in fact, authorized to appear for defendant. After the issue was joined, the cause was, by consent, adjourned from February eighteenth to March ninth.

(Reported helow, 6 Lans., 411.) This action was brought upon a policy of insurance, issued to W. Straus & Co., on a stock of goods and merchandise at Ebnira, and assigned by them, with the defendant’s consent. to the plaintiff, who was the owner of such goods when the loss occurred. The defendant is a corporation created and doing business under the laws of the State of Connecticut, but having an office and transacting business at Elmira.

The action was brought by the plaintiff to recover damages of the defendant for wrongfully obstructing and flowing back the waters of the Owasco river, upon the plaintiff’s premises and water-wheel, situate in the city of Auburn. The plaintiff is the owner of certain premises extending east and west of Washington street, in said city, adjoining and above lands of defendant. The Owasco outlet flows across plaintiff’s lands and thence over defendant’s lands.

<p>A board of supervisors has power to rescind a resolution auditing and allowing a claim against the county upon discovery of mistake or error.</p> <p>In the auditing of claims a board of supervisors acts in a legislative, not in a judicial, capacity, and may repeal or reconsider its action when found to have been erroneous.</p> <p>People v. Supervisors (35 Barb., 308); People v. Ames (19 How., 551); Supervisors v. Birdsall (4 Wend., 453) and Supervisors v. Briggs (2 Den., 26) distinguished.</p>

The policy contained a provision that it should be void and of no effect if the insured should “ die by his own hand, sane or insane.” For some considerable time prior to October 24, 1870, Mr. Gogorza had some disease of his brain which seriously affected his mind, and on that day he was found in his room, in his own house, dead, a pistol having been discharged, by his own hand, into his mouth.

<p>.Appeal, from judgment of the General Term of the Supreme Oourt in the fourth judicial department, affirming a judgment in favor of plaintiff, entered upon a verdict.</p> <p>This action was brought against defendants as trustees of the “ Stevenson Manufacturing Company,” a corporation organized under the general manufacturing act, to recover a debt due from the company to plaintiff, on the ground of an alleged omission to make, publish and file the annual report required by the twelfth section of said act.</p> <p>The defence was that the plaintiff, when the debts were contracted, and when the default in making the report occurred, was one of the trustees of the company, and a co-trustee with the defendants.</p> <p>At the trial evidence bearing upon the question of the trusteeship of the plaintiff was given substantially as follows: "Wackman, one of the original trustees, in March and April, 1868, sold 200 shares of his stock to the plaintiff and the residue to another person, and ceased to act as trustee. No certificate of stock had been issued at this time. About May twentieth a certificate was made out to Wackman, who transferred it to the plaintiff, whereupon a new certificate was issued to him. Button, another of the original trustees and vice-president, sold aH his stock to MacDougaH before May 1, 1868. A certificate was issued to him about May twentieth. On May fifth there was a meeting of the stockholders, and MacDougaH was elected a trustee in place of Button, and the plaintiff in place of Wackman. It appeared that Wackman did not act after this date. The plaintiff, after May fifth, acted as one of the trustees till the company ceased to do business in April or May, 1869.</p> <p>After the evidence had closed, the defendant asked the court to hold, as matter of law, that the plaintiff was estopped as against the defendants Barber and Knight from setting up or claiming that he was not their co-trustee.</p> <p>The court was also asked to decide that, on the facts of .the case, the plaintiff was a co-trustees with the persons named. Both these requests were denied under exception.</p> <p>The defendant then asked the court to hold that on the evidence it was a question for the jury whether the plaintiff was elected or appointed a trustee at the meeting of May fifth, and assented by his conduct to the appointment; and if they so find, that then he is to be held in law as a trustee, for the purposes of this case. The court denied this request, holding that there was no question for the jury, and thereupon directed a verdict for the plaintiff.</p> <p>Plaintiff cannot recover a debt against the corporation from his co-trustees by virtue of section 12 of the general manufacturing act of 1848 (chap. 40; 2 R. S. [5th ed.], 661, § 12; Andrews v. Murray, 33 Barb., 354; Bailey v. Banker, 3 Hill, 188.) Plaintiff was a trustee of the corporation during the time in question. (2 R. S. [5th ed.], 659, § 3; id., 658, §§ 1, 2; Bk. of Utica, v. Smally, 2 Cow., 270; Gilbert v. Man. Iron Co., 11 Wend., 627; 2 R. S. [5th ed.], 660, 661, §§ 32-38.) Plaintiff was estopped, as against defendants, from denying that he was their co-trustee. (Dezell v. Odell, 3 Hill, 216, 221; Fulton Bk. v. N. Y. Canal Co., 4 Paige, 133, 134.) Plaintiff was a trustee defacto and responsible, the same as though he had been appointed strictly in accordance with the statute. (Deming v. Puleston, 55 N. Y., 655; People v. Runkle, 9 J. R., 147, 149, 159; People v. Collins, 7 id., 549; Trustees Vernon Soc. v. Hill, 6 Cow., 23, 27; 2 R. S. [5th ed.], 599, § 3; id., 519, § 10; id., 663, § 46.)</p> <p>The action of the stockholders at their meeting of May 5, 1868, was wholly void and a nullity. (Conro v. Pt. Henry Co., 12 Barb., 62; McCollough v. Moss, 5 Den., 575.) The court properly declined to hold, as matter of law, that plaintiff was estopped, as against defendants, from denying that he was a co-trustee with them, or that he was a co-trustee. (O'Neill v. James, 43 N. Y., 93; Herman’s Law of Estoppel, 339, 345; Halcroft v Hogins, 52 Eng. C. L., 488; Pott v. Eyton, 54 id., 31; Irvin v. Conklin, 36 Barb., 64; Chaut. Bk. v. White, 6 N. Y., 236; Carpenter v. Stillwell, 11 id., 73; Brown v. Bowen, 30 id., 519; 8 Shapley v. Abbott, 42 id., 443; Welland Canal v. Hathaway, 8 Wend., 480; Wright v. Douglass, 10 Barb., 108; Ackley v. Dydert, 33 id., 176; 1 Chitty on Pldgs., 509, 603; Howard v. Mitchell, 14 Mass., 242; 1 Saund., 325 a, note 4; Herman on Estoppel, § 611; Code, § 149 ; Winchell v. Hicks, 18 N. Y., 558; Craw v. Easterly, 4 Lans., 513.)</p>

<p>Appeals from judgments of the General Term of the Supreme Court in the third judicial department, affirming judgments in favor of defendant, entered upon decisions of the court on trial without a jury.</p> <p>These actions are alike in all respects, and were tried together as one. They were brought to set aside the certificates of sale of real estate made by the sheriff of the county of Delaware, as a cloud upon the plaintiffs’ title.</p> <p>The sales were had and the certificates made, as is alleged, by virtue of certain proceedings to levy a tax upon rents reserved in leases belonging to the plaintiffs. The cases have been twice tried and once considered upon appeal by the Court of Appeals. (43 H. Y., 290.) On the last trial here reviewed, the facts found are, in substance, as follows: The plaintiffs were non-residents of the county of Delaware, and dining 1864 or 1865 were owners of the rents charged upon the lands mentioned in the complaints under leases in fee. In 1864, such rents reserved were attempted to be assessed to widow Henry Overing and James D. Overing, said James being then dead, but such taxes were not collected. In the year 1865, the three assessors of the town of Stamford, in Delaware county, where the lands referred to were situated, parceled out among themselves the districts of the town in which each assessor should make the preliminary assessment, and this they severally proceeded to do ; and after this was finished, the assessors met at the town clerk’s office, and the clerk wrote out the roll for them. They had collected the data as to the taxable rents to be assessed to the plaintiffs, and had agreed upon their values, and they were ready to be put upon the roll, except they did not know but that some of the lots had been sold on which the rents were reserved, and, for a reason satisfactory to the assessors, had the clerk leave blanks in the roll to insert the names of the Overings, and the rents, etc., assessed to the plaintiffs in 1865, until they could procure from their agent at Delhi a list of all the lands sold, and, with this exception, the roll was completed, and the assessors put up notices. In a day or two, the plaintiffs’ agent (White) called upon one of the assessors (Hillis) who had the roll, it then being about the middle of July, and Hillis explained the matter to White, and told him that the assessors were going to put the assessment against the Overings on the roll for rent as soon as they got a list of the sold lots. On the next day, two of the assessors (Hillis and Hesbit) went to Delhi and called upon White, and procured from him a list of lands sold, and told him the assessors would put the Overings on the roll for their assessments, deducting the amount of rents for lots sold, and White protested and objecting against their right to do so; “ and they went home, and the board at once did so.” The board of assessors met on the day for swearing off, and, after hearing those who applied, adjourned the further hearing to the twenty-ninth of August, and after these Ovefing assessments were inserted, and on the day last named, the roll was duly sworn to. White, the plaintiffs’ agent, resided in Delhi, where the board of supervisors met. When White called upon the assessors, he was told that the list of the assessments for rents against the Overings were in the town clerk’s office, but had not been transcribed, and he claimed that it was too late to put them on. After White had furnished the list of lots sold, and was told that the assessments, except on sold lots, would be inserted in the roll, he had no further personal notice, and did not subsequently appear before the board; but no assessment for rent was inserted by the board for rent of any lot which White claimed had been sold. From the year 1860 or 1861, the Overings had been, and in 1866, at the time of the sales complained of, were the owners of the rents charged upon the lands described in the complaints, and these rents upon durable leases in the town of Stamford, were omitted to be assessed, and were not in the assessment roll in the year 1864 as against the plaintiffs. '.It is further found that when the assessment roll was examined by White no Overing name — no entry of any of the lease lots in question — no amount of the plaintiffs’ annual rent reserved, and no value of plaintiffs’ personal property, and nothing indicating an intention to assess the plaintiffs — was upon the roll; and that after the roll was thus examined it was altered by adding the plaintiffs’ names and assessment to it; and no notice, actual or constructive, except as before stated, was given plaintiffs, or their agent, of any time when or any place where the roll, as thus altered, would be left with one of the assessors for examination and correction; and the fact that the assessors had put the plaintiffs on the roll did not come to their knowledge, or the knowledge of their agent (except as before stated) until after the meeting of the board of supervisors of 1865 who laid the tax; and, except as qualified by the preceding findings of fact, the whole assessment was made, and the names of the plaintiffs and the property in question were put upon the roll after the roll was completed, and after notices given for correction, and after plaintiffs had examined the rolls pursuant to the notice and found no assessment therein. Upon these facts, the assessment and taxation were held valid in the court below, and the complaints were dismissed, with costs; and the plaintiffs appeal.</p> <p>The assessors obtained no jurisdiction to assess plaintiffs and the laying of the tax and all proceedings to enforce it were void. (Clark v. Norton, 49 N. Y., 243-248; Bennett v. City of Buffalo, 17 id., 383.) The whole assessment was irregular, defective and void. (Laws 1846, p. 446; Laws 1858, p. 600; 1 R. S. [5th ed.], 913; id., 909, 911; 3 Seld., 517; People ex rel. Mygatt v. Bd. Suprs., 1 Kern., 563: Mygatt v. Washburn, 15 N. Y., 316: Whitney v. Thomas, 23 id., 281: Doughty v. Hope, 3 Den., 591; Bloom v. Burdick, 1 Hill, 130, 141; Wheeler v. Mills, 10 Barb., 644; Hubbell v. Weldon, Sup. to H. & D., 139; Sharp v. Spier, 1 Hill, 76, 92; Whitney v. Thomas, 23 N. Y., 281; People v. Chenango, 1 Kern., 563; Thacher v. Powell, 6 Wheat., 119; Williams v. Peyton, 1 id., 77; Cook v. Shepard, 7 Cow., 88; Watson v. Esty, 7 Wend., 148; Atkins v. Kinnan, 20 id., 241; Dawson v. Gill, 1 East, 64; Hardman v. Bowen, 39 N. Y., 196.) The assessors had no right to put plaintiffs’ names on the roll if omitted the preceding year. (Laws 1865, chap. 153, p. 818; Bennett v. City of Buffalo, 17 N. Y., 383 ; 12 Barb., 288; 22 N. Y., 281.) The certificate of sale was a cloud upon plaintiffs’ title. (3 R. S. [5th ed.], §§ 78, 79; Scott v. Underdonk, 11 N. Y., 9; 5 Paige, 493; 6 id., 262; Craft v. Merrill, 11 N. Y., 456; 16 id., 519; Simeon v. Schenck, 29 id., 598; Van Rensselaer v. Hays, 19 id., 68; 18 id., 515.)</p> <p>This action was not maintainable upon the complaint or the proofs. (14 N. Y., 534; 43 id., 290; 31 id., 480; 13 Barb., 239; 8 Abb. Dig., 130; 1 id., 593; 2 N. Y., 118; 16 id., 519; 26 Wend., 132; 3 Keyes, 182; 15 How. Pr., 151; 8 Abb. Pr., 11.) The proceedings of the assessors and board of supervisors were not void. (Swift v. City of Poughkeepsie, 37 N. Y., 511; Foster v. Van Wyck, 1 Abb. Pr. [N. S.], 469; 3 Comst., 468; 48 Barb., 52; 19 id., 23; 47 id., 321; 10 id., 290; 21 id., 207; 35 N. Y., 463 ; 13 id., 184; 40 id., 154; 39 id., 88; 48 id., 393; Barhyte v. Shepherd, 35 id., 238; 1 Den., 214; People v. Cook, 8 N. Y., 69.) The assessment, taxation, warrant and sale were, in all respects, legal for the omitted property of 1861. (48 N. Y., 391; 17 id., 383 ; 43 id., 294; 31 id., 290; People v. Suprs. Niagara, 1 Hill, 20.) Plaintiffs’ remedy was by writ of error or certiorari to have the assessment roll corrected. (37 N. Y., 511; 1 Abb. Pr. [N. S.], 469; 3 Tr. App., 196; 35 N. Y. 238; 5 id., 376; Bk. of Comm. v. Mayor, etc., 13 id., 186; Weaver v. Devendorf, 3 Den., 120; Prosser v. Secor, 5 Barb., 607; Vail v. Owen, 19 id., 22; Easton v. Calendan, 11 Wend., 90; Mygatt v. Washturn, 11 N. Y., 563; Randall v. Smith, 1 Den., 214; Hill v. Sillick, 21 Barb., 207; People v. Cook 14 id., 259, 290.)</p>

This action was brought to restrain defendants from exercising the power and doing the acts authorized by chapter 257, Laws of 1870. The facts are sufficiently stated in the opinion. Chapter 257, Laws of 1870, is unconstitutional and void. (Const., art. 1, § 10, subd. 1; Dart. College v. Woodward, 4 Wheat., 518, 591, notes; Terret v. Taylor, 9 Cranch, 43.) The co-trustees were not necessary defendants. (1 Dan.

These appeals are from judgments of the General Term of the Supreme Court in the third judicial department, each affirming a judgment in favor of the plaintiff entered upon the report of a referee.

This action was brought for the foreclosure of a mortgage executed by Abram M. Black, as special guardian of the. defendant Torrey, to the plaintiff, for $1,400. The issue in the case was, whether the requirements of the statute “ authorizing proceedings in relation to the conveyance of lands by infants, and the sale and disposition of their estates,” had been so far complied with -as to authorize the execution of the mortgage sought to he foreclosed.

(Reported below, 63 Barb., 83.) The facts appear sufficiently in the opinion. The relator was entitled to relief by mandamus. (1 Kent’s Com., 455; Dwar. on Stat., 734; 9 Law Lib., 67.) The act of 1871, chapter 695, applied to rights existing at the time of its passage. (Brewster v. Brewster, 32 Barb., 428; 1 R. S., 742, § 18; Sayre v. Wisner, 8 Wend., 664; 10 id., 365; Spoor v. Wells, 3 Barb.

This action was brought for the alleged unlawful taking and conversion of a canal boat belonging to plaintiff. The boat was seized in the city of New York by virtue of an attachment, in favor of defendant against plaintiff, issued out of the Marine Court of that city. For the purposes of the attachment the plaintiff therein (the defendant here) gave an instrument in the form of the statutory bond, but without a seal.

(Reported below, 5 Lans., 153.) This action was brought to recover for the alleged unlawful conversion of a canal boat belonging to the plaintiff. The defendant justified under a judgment and execution of the Marine Court of the city of fÑTew York. The boat was seized in that city on February 14, 1870, by the sheriff, on an attachment issued from that court.

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment in favor of defendant entered upon an order nonsuiting plaintiffs on trial. (Reported below, 5 Lans., 378.)</p> <p>The action was brought by the plaintiffs, as commissioners of highways of the -town of Brighton, in Monroe county, against the defendant, as sole commissioner of highways of the town of Penfield, in the same county, to recover one-half of the expenses of a bridge which the plaintiffs had constructed over Irondequoit creek, which is .the dividing and boundary line between these towns.</p> <p>The plaintiffs’ counsel in opening his case to the jury stated, among other things, “ that the said towns adjoin each other at the center of Irondequoit creek, which is and has been the boundary line between the said towns for more than twenty-five years past; that it bounds the town of Brighton on the east and the town of Penfield on the west; that there is, and has been ever since the year 1858, a public highway laid out in the town of Penfield, which is described in the complaint; that it was laid out by the lawful authorities of the town of Pp.nfip.lrl to intersect, and did intersect, at its said western terminus, another lawful public highway laid out, worked and used in the town of Brighton; that the said highway in Penfield had been open and worked, in some part of it, within six years prior to the commencement of the proceedings to build the bridge over Irondequoit creek mentioned in the complaint; that on the 3d day of December, 1868, the plaintiffs commenced proceedings according to the provisions of chapter 225 of Laws of 1841, as amended by chapter 383 of Laws of 1857 for the construction of a bridge at the point of intersection of the two highways; that the defendant refused and neglected to unite with the plaintiffs in making the contract for building said bridge as mentioned in the complaint, and also refused to unite with the plaintiffs in building said bridge or to pay any part of the necessary expenses thereof; that the plaintiffs alone constructed said bridge and thereafter demanded payment from defendant of one-half the expense, which he refused to pay, etc.”</p> <p>It was conceded that no bridge had ever been built across Irondequoit creek at that point before the present bridge, and that there had been no concurrent action of the towns of Brighton and Penfield in the building of the bridge in suit.</p> <p>The defendant’s counsel then moved-that the court nonsuit the plaintiffs upon the opening of their counsel.</p> <p>The court held that no action could be maintained by the commissioners of one town against those of another, except upon a contract to build a bridge over a stream dividing the two towns, until an application had been made to the Supreme Court and an order granted authorizing the building of the bridge.</p> <p>The motion was granted, and the plaintiffs’ counsel then and there duly excepted.</p> <p>Further facts appear in the opinion.</p> <p>The opening and partial working of the road was sufficient to constitute it a legal highway. (Marble v. Whitney, 28 N. Y., 297.) Chapters 383 and 639 of the Laws of 1857 are in pa/ri materia, and must be construed together. (Candee v. Hayward, 37 N. Y., 653.)</p> <p>The portion of the highway located on the creek, as well as all other portions not opened and worked, had ceased to he a highway. (1 R. S., 521, § 99; Laws 1861, chap. 311; Lyon v. Munson, 2 Carew, 426; Christy v. Newton, 60 Badau, 332.) Chapter 283, Laws of 1857, does not apply to this case. (Mather v. Crawford, 36 Barb., 565.)</p>

Appeal by defendant Morgan from the judgment of the General Term of the Hew York Common Pleas, affirming a judgment entered upon the report of a referee in favor of the respondents. This action was brought by plaintiff to foreclose mechanic’s lien upon certain houses and lots situate in the city of Mew York.

This action was brought to recover damages alleged to have been sustained by plaintiff in consequence of being deprived of a home, to which she claimed herself entitled under her father’s will.

<p>The owner of a city lot may improve and fill it up, or may, if he desires to build, construct walls so as to protect his lot against the surface water from an adjoining higher lot, but the owner of the latter cannot be compelled to improve or drain his lot for the benefit of the former; so long as he leaves his lot in its natural condition his neighbors cannot complain of the surface water.</p> <p>The parties owned adjoimng lots in the city of New York. Defendant’s land descended towards plaintiff’s, so that the surface water flowed from the former to the latter. Plaintiff built upon his land, the wall of the building being upon the line between the lots; this dammed up the sur- ■ face water which soaked through the wall into the cellar of the building. Defendant had done nothing upon his lot to interfere with the natural flow of the water. There was a sewer in the street adjoining the lots. In an action to recover for the damage caused by the water, held, that defendant was not bound to drain bis lot or connect it with the sewer; and that plaintiff could not recover.</p> <p>It did not appear that the defendant knew that the water was doing injury. Held, that even if he was required to protect plaintiff from injury the latter was bound to give notice that the water was injuring or was liable to injure him; he could not wait until the damage was done and then complain.</p> <p>Bylands v. Fletcher (L. R, 8 E. & I. Appeals, 880) and Smith v. Fletcher (8 Eng. R. [Moak’s notes], 432) distinguished.</p>

In January, 1861, the common council of the city granted to the Coney Island and Brooklyn Railroad Company the right to lay its tracks in said street, and run its cars thereon, by horse power, the company agreeing, among other things, to keep the pavement in repair between the tracks and for three feet on each side; this embraced the whole street save about fourteen inches on each side.

Appear from a judgment of the General Term of the Supreme Oourt, in the third judicial department, affirming a judgment in favor of defendant, entered upon the report of a referee. (Reported below, 5 Lans., 350.) This action was brought to recover the price of certain lumber, alleged to have been sold and delivered to the defendants.

<p>Where a railroad company receives the trunk of a passenger, after being advised that it contains articles of merchandise in addition to ordinary baggage, and charges and receives for its transportation, because of extra weight, a sum in addition to the ordinary fare, in case of failure to deliver, it is liable for the merchandise as well as baggage.</p>

This action was brought upon an undertaking executed by defendant on appeal by one William Ballard, from a judgment rendered against him in Justice’s Court, in an action wherein plaintiff herein was plaintiff, and the said Ballard was defendant.

(Reported below, 5 Bans., 350 ; 63 Barb., 145.) • This action was for malicious prosecution in falsely and maliciously charging and causing the plaintiff to be indicted, arrested and tried for the crime of forgery.

This action was brought to recover possession of 109 bushels of buckwheat, one mowing machine, one drag and a lot of straw. The principal question in the case, was, as to the title to the buckwheat and straw. It appeared on the trial, that the plaintiff was the owner of a farm situated in the town of Lincklaen, in Chenango county.

These are cross appeals from judgment of the General • Term of the Supreme Court in the fourth judicial department, modifying a judgment entered upon the report of a referee.

This action was brought upon a draft drawn by J. W. Lowden, as agent of the Cooper’s Falls Iron Company, upon defendant James M. Byder, and accepted by him for the purpose stated in the opinion of Eabl, C., wherein may be found a sufficient statement of the facts. Plaintiff was not a bona, fide holder of the draft, and could not maintain this action. (Spears v. Myers, 6 Barb., 445; Wardell v. Hoell, 9 Wend., 170; Payne v. Cutler, 13 id., 605; Clark v. Ely, 2 Sandf.

(Reported below, 7 Lans., 186; 64 Barb., 215.) This action was, in form, for goods sold and delivered. The following facts were substantially found: The plaintiffs, who were partners doing business at Mew York, sold and delivered goods to the defendant, doing business at Galveston, Texas, to the value of $4,634.84, for which the defendant gave his note at four months, due January 6,1866.

These are appeals from judgments of the General Term of the Supreme Court, in the third judicial department, in the first case, affirming on ceírúora/ri the proceedings of the defendants as commissioners of highways in laying out a highway in the town of Easton, Washington county, and, in the last, the decision of the referees, on appeal, affirming the determination of the commissioners in laying out the said highway.

(Reported below, 62 Barb., 316.) The nature of the action and the facts are sufficiently stated in the opinions. The court erred in holding that the covenant in the lease as to taking property on default in payment of rent was a mere license.

The action was brought by plaintiffs, judgment creditors of Peter Valentine, after return of an execution unsatisfied, to set aside a conveyance made by him through his son to his wife, of certain real estate situate in the city of New York, upon allegations that the conveyance was made to defraud creditors. The facts appear sufficiently in the opinion.

Babcock, on or about May 19, 1864, payable to the order of S. E. Babcock, and indorsed by him. The indorsement of the defendants was in their firm name, of Silliman, Matthews & Co. The answer admits the making and indorsement of the note, but denies the other allegations of the complaint.

(Reported below, 3 J. & S., 106.) This action was brought by the plaintiffs to recover of the defendants the price of 1,000 bales of Dowrah jute, alleged to have been sold them at a stipulated sum. The facts material to the decision of the appeal sufficiently appear in the opinion. Defendants’ letter admitting the purchase of the goods by them was sufficient to take the case out of the operation of the statute of frauds.

<p>The declarations of a principal, made subsequent to the act to which they relate, and not as part of the res gestm, are not competent evidence against his surety.</p> <p>Defendant E. executed to plaintiffs a bond and mortgage under a contract by which they agreed to secure to and indemnify plaintiffs from loss upon an account with B. In an action to foreclose the mortgage wherein the only question was as to the balance due upon the accounts, plaintiffs, after proof that two statements of accounts had been delivered to B., offered them and they were received in evidence, under objection and exception. They also were permitted to give in evidence, under objection and exception, a letter written by them to B., after the account was closed, stating the balance due, and an indorsement thereon by B. admitting it to be correct. Held, error.</p> <p>BvMoeh v. Boyd (2 Edw. Oh., 293); Fenner v. Lewis (10 J. R, 38); Douglass v. Howland (24 Wend., 36) distinguished.</p>

This action was brought to recover damages for an alleged breach of the covenant of warranty of quiet enjoyment in a deed made by the defendant to the plaintiff for a lot of land described as containing twenty acres, situate in Tates county.

(Reported below, 6 Lans., 185.) This action was brought, among other objects, for the purpose of restraining, by injunction, the collection of assessments imposed on lands of the plaintiffs in the city of Rochester, under its charter (chapter 143, of the Laws of 1861), for the improvement of Oak street, one of the streets in that city.

This action was brought upon a promissory note made by the defendant for the payment of $200 to L. Weld or bearer, in one year after date, with interest. The note bore date May 13, 1867. Held: that though the note had been obtained by fraud and deceit for a pretended consideration that had failed, and that though the payee could not himself have recovered on the note against the defendant, yet that the plaintiff was a bona fide holder for full value and could recover.

(Reported below, 4 Daly, 1.) This action was upon a policy of marine insurance. In January, 1866, the defendant issued to the plaintiffs an open policy of insurance which, at the times of the transactions in this suit, was in force. The policy had, among others, the following clauses: “ Do make insurance * * * at and from Columbus and other points and places in the interior of the State of Georgia, via Appalachicola, to port or ports in Great Britain, on cotton.

Tais was an action of ejectment. The plaintiffs claimed title under a mortgage foreclosure by advertisement alleged to have been conducted pursuant to the statute relating to foreclosures of that description.

This action was brought under the charter of plaintiff (§ 13, title 6, chap. 714, Laws of 1869) to recover an assessment upon defendant’s property for the construction of a sewer.

This was an action of ejectment. (Reported below, 63 Barb., 65.) Both parties claimed title under Mary R. Howe, a former owner. Plaintiff claimed under a deed not acknowledged or attested by a subscribing witness. Defendant was a purchaser from a devisee of Mary R. Howe.