Volume 66 — Barbour's New York Supreme Court Reports

APPEAL by the defendants from a judgment entered upon the report of a referee. The fact's are fully stated in the opinion of the court.

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

THE plaintiffs in error were indicted in the court of sessions of Onondaga county for not keeping in repair their road, extending from the south bounds of the city of Syracuse, in the town of Onondaga, to the north line of the Indian Reservation, a distance of five miles.

THIS action was brought before a justice of the peace of the county of Madison, to recover damages which the plaintiff claimed to have sustained by reason of a breach of warranty on the sale of a horse; or rather on the exchange of a cow of the plaintiff’s for a horse of the defendant’s. It was proved, on the trial, that during the negotiation for an exchange, the defendant told the plaintiff that the mare was diseased, and how the disease affected her; that he, the…

THIS action was brought by the plaintiff, a minor of the age of thirteen years, by his guardian, to recover damages for an injury done to his leg by one of the cars of the defendant while running along its track in Salina street in the city of Syracuse. The plaintiff was sent by his father to a druggist, for medicine, and after procuring it he' went into the street in order to get on a passing car, to ride home.

THIS action was brought to recover the sum of $400 loaned to the defendant on the 13th of December, 1864, at Little Falls, in the county of Herkimer, on a credit of one year with interest, and for… Held: as matter of law, that the fraudulent representations displaced the credit, and the plaintiffs were entitled to recover the sum loaned and interest.

APPEAL by the plaintiff from a judgment of the county court of Oneida county, reversing a judgment rendered by a justice of the peace.

HIS action was brought to recover damages for breach of a contract, on the part of the defendant, to transport a quantity of iron for Paul, Farwell & Co., from Brooklyn, N. Y., to Saginaw, Mich.; and also to recover back the overcharges which the said firm were compelled to pay on said iron.

PPEAL from a judgment of the county court of Oneida county, affirming a judgment rendered by a justice of the pep.ce. The action was commenced by summons, in the justice’s court, against one Nelson Gr. Northrup and the appellant, jointly, to recover for damages done by their cattle to lands and crops of the respondent, in Marcy, Oneida county.

THIS is an action of ejectment to recover a farm of about one hundred and eighteen acres of land situated in the town of Salisbury, Herkimer county, described as lot 29, in George Johnson’s three thousand acre tract, in the fourth allotment of the Eoyal Grant, which the plaintiffs claim as the heirs at law of Daniel Mackinnon, who is alleged to have died, seised thereof, January 30, 1830. .

PPEAL, by the plaintiff, from a judgment rendered at a special term held by Bacon,- J., dismissing the complaint, with costs. The action was commenced in July, 1865, to compel the defendants to account for $50,000 of bonds issued by the town and delivered to the defendants, and for moneys of- the tow;n received by the defendants, and to pay over the amount which on such accounting should be found owing to the town.

<p>Where one of several tenants in common of premises entered thereon, claiming to bo the exclusive owner, locked the door of the building thereon, and thus excluded the others therefrom, and had ever since kept possession; held that this was an ouster of the co-tenants so excluded which entitled them to recover in ejectment.</p>

<p>MOTION for a new trial, on exceptions ordered to be heard at a General Term, in the-first instance,, and appeal from an order made at Special Term, denying a motion to set aside a verdict, as contrary to evidence, which was made on the judge’s minutes.</p>

MOTION to quash an indictment for obtaining money by false pretences, on the ground that it is not alleged, therein, that the firm of which the defendant was a member was insolvent.

APPEAL, by the defendant, from a judgment entered upon a verdict, in an action for a malicious prosecution and false imprisonment. The parties were residents of the town of Elbridge, in the county of Onondaga, about twelve or fourteen miles from Syracuse. On the 20th of March, 1866, the plaintiff and defendant went to Syracuse to attend a trial, as witnesses. They remained in the city of Syracuse during that night, and until the following evening.

APPEAL, by the defendants, from a judgment of the county court of Onondaga county, affirming a judgment rendered by a justice of the peace. The facts appear in the opinion of the court.

THIS action was commenced in a justice’s court, of Herkimer county, to recover for the unlawful conversion of a cow, the property of the plaintiff. The facts proved on the trial were these: The defendant, wanting to buy a cow, applied to the plaintiff, to purchase one that he owned, and after some negotiation, it was agreed that the plaintiff should sell the cow to the defendant for $85, and that he would deliver her at the house of the defendant the next day.

MOTION Tby the defendant Yan Pelt, for a new trial, after a verdict for the plaintiff, at the circuit. Exceptions ordered to be heard, in the first instance, at General Term.

THESE actions were brought to recover on two promissory notes made by the defendant Grosvenor, payable on demand, at the Citizens’ Bank, to the order of the defendant Hart, with interest, in the first entitled cause, for $2,000, and in the other for $500, and both were indorsed by the defendant. Both are dated June 26, 1867.

<p>An action for a fraudulent warranty was maintainable at the common law, and it has been held to be maintainable under the Code. And if an action will lie for a fraudulent warranty, a counter claim, by way of defence, for the same matter, must be maintainable.</p> <p>At common law, a purchaser of goods could recover damages for a breach of the warranty, if he failed in proving the fraud. And damages for a breach of warranty may now be recovered, under an answer setting up a counter claim by reason of a breach of a fraudulent warranty.</p> <p>To make a vendor responsible upon either a warranty or a false representation, it must be established that the warranty was given, or the representation made, of the existence of some quality, or the absence'of some defect, that would enhance the value of the property, and be calculated to induce the purchaser to buy. In other words, it must be material.</p> <p>The complaint or answer should set out the warranty or representation; and neither can regularly be proved, if not alleged. But if no objection is made, the party alleging the warranty or fraud may prove other and different ones from those alleged, and he will be entitled to have the pleading amended, so as to make it conform to the proof.</p> <p>A warranty is an affirmation by the seller that the property proposed to be sold belongs to him, or is of the description or quality alleged. The allegation must be made at or before the sale; must be of something that is material, and calculated to induce the purchaser to buy. It must not be mere matter of opinion.</p> <p>When a vendor represents property offered for sale as possessing certain important qualities whereby it is rendered more valuable, and by reason of which the purchaser is induced to buy, and it turns out that the property does not possess those qualities, the representation thus made is fraudulent; and the purchaser, to establish the fraud, need not prove that the vendor knew that the representation was false, when made.</p> <p>There is no distinction between a warranty and a fraudulent representation.</p> <p>It is not necessary, ordinarily, to use the words “fraud” or “fraudulent,” in a pleading; it is enough if equivalent words are used—words which clearly impute fraud. But, as in actions for fraudulent representations there are cases in which proving the representations does not establish fraud, it becomes necessary, in such cases, to charge distinctly that the representations were fraudulent as well as false. "</p> <p>During a negotiation between the plaintiff and defendant, for the sale by the former to the latter of a quantity of rhubarb plants, known as wine plants, the plaintiff told the defendant that he had been in the business of making wine from plants of that kind, and had been offered §2 per gallon for his wine; that there were 600 roots, and each hill would yield a gallon of wine; that the rhubarb would make better wine than grape wine; that he had tested the making of wine from the plants, and knew there was no mistake; that it was just as he had told the defendant. Meld that although the plaintiff did not say he warranted the roots to be roots of the wine plant, the representations made amounted to a warranty, both of kind and quality. That at all events, the question whether there was a warranty should have been submitted to the jury. Morgan, J., dissented.</p> <p>Meld, also, that the representations, being alleged and proved to be false, were fraudulent.</p>

<p>APPEAL by the defendant from a judgment entered upon a verdict.</p> <p>The action was for fraud and deceit in the sale of stock in the Yates County Salt and Petroleum Manufacturing Company, to the plaintiff and other persons who had assigned their rights of action to the plaintiff.</p> <p>The jury found a verdict for the plaintiff in the sum of $905.87.</p>

APPEAL by the defendant from a judgment rendered on a verdict. The action was brought to recover the amount of a bill of goods sold to the ndefendant’s brother, John Guenthner. It was claimed that the goods, after having been obtained of the plaintiffs by John Guenthner, by false pretences, were transferred by him to the defendant in fraud of creditors.

PPBAL by the defendants Landon, Bostwick and Conklin from a judgment on the report of a referee. The defendants Spencer, Merwin and Mark W. White were not served with process, and did not appear in the action. Henry S. White and Sardam were served with process, but did not answer the complaint ; no judgment was entered against them until the determination of the whole action. The other defendants, Landon, Bostwick, Conklin and Fuller, defended the action.

APPEAL, by the defendant A. I. Sternberg, from a judgment entered upon the report of a referee. The action was brought to recover the value of a quantity of logs, and round and hewn timber, sold by the plaintiff to the defendants A. I. & J. H. Sternberg. The referee reported in favor of the plaintiff for $52.95 cents, besides costs, and judgment was entered upon his report.

APPEAL, by the defendant, from a judgment of the Lewis county court, in an action originally commenced in a justice’s court. The opinion states the facts.

HIS is an appeal from an order of the county court of Alleghany county, dismissing an appeal from a judgment rendered before a justice of the peace.

THIS was an appeal from an order made at a Special Term in Cayuga county. The action is upon a promissory note, and the complaint was verified in Cayuga county by the agent of the plaintiffs, having in his possession the note on which the action is brought, according to the provisions of section 157 of the Code.

<p>The plaintiff having enlisted in the United States’ service, during the war, entered into an agreement with his mother that he would from time to time send her money, and that she should take care of and restore it to him on his return. Under this agreement he sent several sums of money to his mother, who subsequently married the defendant, and died leaving him her executor. In an action to recover a portion of the money, which, it was claimed, had come to the hands of the defendant; Held that, under § 399 of the Code, the plaintiff was not a competent witness to establish the agreement, as against the defendant, who, if he had the money in question, took it by assignment by way of gift or loan, or as agent of the deceased, or as her executor.</p>

HIS is an action for the recovery of the possession of the premises described in the complaint, and for damages for withholding possession. By stipulation made by the respective parties, the case was transferred from the circuit, to be heard at this special term. David Holman, jun., died in September, 1832, having made his will, which was admitted to probate in November, 1832, wherein he appointed Albert Burnett and another, executors and trustees.

PPEAL, by the plaintiff, from a judgment entered. upon the decision of Justice Barnard, before whom the action was tried, at Special Term.' The action was commenced by the plaintiff, the purchaser, to recover the ten per cent, and auctioneers’ fees, paid on a sale at auction of house and lot No. 45 Crosby street, in ..the city of New York, and for a rescission of the contract.

THIS is an appeal by the defendants Jex and wife from a judgment of foreclosure and sale. Held: that in all gold contracts the premium on gold should be added, and judgment given in currency. (Grund v. Pender gast, 58 Barb. 216.) Judgment in this case was given accordingly. The plaintiff has since remitted the premium awarded by the judgment, and now claims only the amount of the mortgages in currency, with interest.

<p>MOTION to compel a purchaser at a sale in a foreclosure suit to complete his purchase and take a title.</p>

THE plaintiff sought to discontinue this action, and for that purpose obtained an order that the defendant show cause why it should not be discontinued. The defendant opposed its discontinuance, and insisted upon an adjudication upon his rights. The action was brought to recover the purchase money due under a contract for the purchase of re,al estate.

HIS is a motion to correct the minutes of the court, to vacate an order trebling the amount of damages assessed by the jury on the trial of the action; that the clerk of St. Lawrence county be directed to set aside the taxation and allowance of costs to the plaintiff; that the defendants be allowed costs against the plaintiff; and that the same be adjusted by the clerk and inserted in the judgment in this action.

APPEAL, by the defendant, from a judgment entered on the verdict of a jury. The case was before the court on a former appeal, and is reported 54 Barb. 559; where the facts are stated. (See, also, 6 Thonyp. & G. 63, 195; 3 Hun, 195, S. G., later.)

THIS is an appeal from a decree of the surrogate of Columbia county admitting the will of Electa Bell, deceased, to probate. The decree bears date the 27th day of December, 1872. It was insisted by the appellant, on the hearing before the surrogate, that the evidence failed to show a compliance with the provisions of the statute necessary to a due execution of the will by the testatrix, and that the same was improperly admitted to probate by the sur-' rogate.

HE plaintiff brought this action upon a promissory note, set out in the complaint, which, by its terms, was overdue at the commencement of the action, and was executed by the defendants Peter and Silas Countryman, , and by the defendant Daniel Countryman as surety.

APPEAL, by the defendants, from a judgment entered at a special term. The action was upon a bond of indemnity, executed by the defendants to the plaintiff, as sheriff, upon an execution against property, in his hands for collection. The sheriff had levied upon property, under the .execution, before the bond was given.

APPEAL, by the defendants, from a judgment entered upon the report of a referee. The action was brought against H. H. Titus & Co., the makers, and Hartshorne & Brand, the payees, of a promissory note for $2,103.05, made at Phelps, Ontario county, N. Y., November 6, 1870, payable three months after date.

PPEAL, by the defendant, from a judgment entered upon the decision of the court, on a trial at a Special Term. The action was brought against the defendant, as executrix of Lewis K. Cole, deceased, to recover a debt due to the plaintiffs from the firm of Draper & Cole, of which firm Lewis K. Cole was, at the time of his death, a partner.

APPEAL, by the defendant, from a judgment for the plaintiff entered upon the verdict of a jury. The plaintiff having delivered certain articles of jewelry to Wolf Brothers, at the city of New York, to secure a loan of $88, directed Wolf Brothers to send them to her by express, to Saratoga Springs, the sum of $88 to be collected on delivery. Wolf Brothers placed the same in a package directed to the plaintiff, and delivered it to the defendant, with their bill for $88.

PPBAL, by the defendants, from a judgment in favor of the plaintiff, entered upon the decision of a judge. This was an action to compel the defendants, as railroad commissioners of the town of Westford, to account for and pay over all moneys received by them on the sale of railroad stock of the town, and to recover the balance in their hands due to the town.

<p>EXCEPTIONS ordered to be heard in the first instance at the General Term after verdict for the defendants.</p> <p>The action was trespass, and the case was this: In the year 1839 one Jennings was the owner of certain premises along a highway. A school-house stood upon the highway and upon said premises, and Jennings’ fence began to diverge from the highway at a point forty-five rods from the school-house, and continued so to diverge until it ran behind the school-house leaving a strip of land unfenced upon the highway side, between the highway and the fence, and extending up to the school-house. In that year Jennings granted, with full covenants, to the trustees of a certain school district the school-house in question. The description was as follows: “ All that certain piece or parcel of land situate and being on lot No. 597 in the town of Yirgil, and on the ground now occupied by the present school district, for the sole and express purpose of a school-house, to have and to hold the said piece or parcel of ground with the appurtenances, unto the said trustees and inhabitants of the above named school district, their heirs and assigns, forever.”</p> <p>The school buildings consisted of the school-house proper and two outhouses. They had been usefl for a school, for several years before 1839, and continued to be so used until the bringing of the action. And during all that time down to 1868, the children had used the land surrounding the school-house, including the strip described,' for a play-ground.</p> <p>Subsequent to 1839 Jennings conveyed the farm to one Holmes, and it afterwards, in 1864, came into the hands of the plaintiff.</p> <p>In 1868 the plaintiff ran a fence along the road to within four and four-fifths rods of the school-house, and fenced out the land between. This fence was removed by the defendants by direction of one of the three trustees of the school district, and the plaintiff brought his action of trespass.</p> <p>The judge charged the jury that the grant to the school district carried with it, as appurtenances, all such uses or privileges of the land around or adjoining the school-house, only, as was necessary to the beneficial enjoyment of the school-house for school purposes. And he left it to the jury to determine how much was necessary. He also charged, that if the trustees had “occupied the land in dispute, claiming title thereto adversely to the owners and occupants of the plaintiff’s farm for twenty years before the building of the fence in question, they had acquired title by adverse possession. And that if the jury found adversely to the plaintiff upon either of these questions, they must find a verdict for the defendants. He also refused to charge that the defendants could not justify under the authority of one trustee only. ' .</p> <p>The jury found a verdict for the defendants, and the plaintiff moved for a new trial.</p>

<p>APPEAL, by the defendant, from a judgment entered upon the report of a referee.</p> <p>In July, 1854, the plaintiff made and entered into a contract with the Little Falls Cotton Mill to construct and put into the factory, at Little Falls, two waterwheels on or before the 1st of September following. And the said cotton mill, by George Pratt as its agent, agreed to pay, for said wheels and work, the sum of $1,800 if they should yield the amount of power specified in the contract. If not, then said cotton mill was to have the said wheels, for damages. The plaintiff having put in said wheels, and the defendant, who was the owner of said mill, refusing to pay, an action was brought against him. The complaint set out the contract, and alleged that it was made with the defendant by the name of the “Little Falls Cotton Mills that it had been fully performed by said plaintiff; and that the defendant had refused to pay. The defendant’s answer contained, 1st. A general denial of the complaint; 2d. Non-performance by the plaintiff; and, 3d. A counter claim for property delivered, and work done for said plaintiff.</p> <p>The case was referred to a referee, and was brought to a hearing before him, and he nonsuited the plaintiff on the ground that the plaintiff had not shown that the defendant made the contract. Judgment of nonsuit was subsequently entered, in said action. After the entry of said judgment the plaintiff commenced another action against'said defendant, and complained against him for $1,800 due to him for two water-wheels and other structures and erections, and work, labor and materials furnished to, and done and performed for, said defendant, at his request. The defendant, in his answer, set up, 1st. A general denial; 2d. That the work, &c., was done, and materials furnished, under a special contract which he set out, and alleged its breach by the plaintiff ; 3d. The former judgment, in bar; and 4th. A counter claim of the costs in said former suit.</p> <p>The cause was referred to the Hon. W. J. Bacon, before whom it was brought to trial. The first piece of evidence offered on the part of the plaintiff was the judgment record in the former suit; and he claimed and insisted that the defendant was thereby estopped from setting up said written contract as a defence in this action. The referee decided that the defendant was precluded, by his denial of the contract in the former action, and by the decision and judgment in said action, from setting up the contract, or any defence under, it contained in the answer, as a defence to this action. The referee also held and decided that the defendant having, in the former action, denied the making of the contract, and upon the trial that issue having been decided in his favor, he was estopped, as between himself and the plaintiff, from now setting it up. To which ruling and decision the defendant’s counsel excepted. The defendant’s counsel offered, on several occasions during the trial, the written contract in. evidence, and offered to prove his defence under it; but, on every occasion, the evidence was objected to, and rejected by the referee on the same grounds assigned for receiving the judgment record in evidence.</p> <p>The referee, after hearing the parties, reported in favor of the plaintiff for the amount claimed, with interest, less $100 allowed to the defendant for work and labor and materials, done for and furnished to, the plaintiff. And from the judgment entered upon the report the defendant.appealed.</p>

Cunningham to probate. The facts relative to the execution of the will, and the capacity of the testatrix, appear in the opinion.

MOTION by the defendant for a new trial on exceptions taken at the Erie circuit, and ordered to be heard at General Term.

<p>APPEAL by the defendant from a judgment for the plaintiff on the report of a referee.</p>

<p>APPEAL from a judgment rendered for the plaintiff§ at the Oneida circuit, on a trial by the court without a jury.</p>

<p>Where the official bond of an administrator, given to the people as nominal obligees, has been assigned by the surrogate, to be prosecuted under the act of IBS'?, (Laws of 183Í, ch. 460,) an action can be maintained, thereon, by the assignee, in his own name.</p> <p>Section 113 of the Code, authorizing the trustee of an express trust to sue, is merely permissive, and does not prevent the real party in interest from suing under § 111.</p> <p>Where an administrator’s bond was joint and several, and was executed by the defendants and two other persons; held that an action thereon would lie against the defendants alone. That they, being two of the parties who were severally liable on the same obligation, were within the express language of § 120 of the Code.</p>

<p>A complaint alleged that the defendant, by its servants, &e., negligently set fire to and destroyed the plaintiff’s raspberry patch. It was proved that the fire was started by means of a burning brand, thrown from a passing locomotive upon the defendant’s own land, where it set fire to the grass, and the fire spread to the raspberry patch, which adjoined. It was not shown that the person who threw off the brand was in the employ of the defendant; but it was proved that he was upon the engine, and apparently engaged at work there, with his coat off. Held that this fairly raised a presumption that such person was in the employ of the defendant, and was rightfully engaged at work upon the engine, in the absence of all explanation.</p> <p>On a motion for a nonsuit, the defendant objected that there was “no proof of negligence on the part of the defendant, its agents or servants.” Held that this objection did not call the attention of the court and counsel to the insufficiency of the proof that the person who cast off the burning brand was in fact one of the servants of the defendant; but on the contrary, was calculated to lead to the supposition that the fact was conceded.</p> <p>The defendant also objected that it did not appear but that the casting off of the burning brand was the wilful act of the person who did it, and not within the scope of Ms employment. Seld that, in the absence of proof to the contrary, it was to be presumed that the fireman or engineer did the act in question in the performance of Ms usual duties.</p> <p>It was also objected that the damage was too remote from the act complained of. Seld that in this particular the case was governed by the principles laid down in Meld v. Sew York Central R. R. Co., (32 S. Y. 339,) and Webb v. The Rome &e. R. R. Co., (3 Lam. 483.)</p>

APPEAL, by the plaintiff, from a judgment of the Special Term of Erie county, dismissing the complaint, in an equity case. The facts appear in the opinion.

<p>The plaintiff’s horse, while trespassing upon the premises of the defendant, was taken by the latter into his possession, as a trespasser, and he refused to deliver the animal, on demand. In an action of replevin, brought by the plaintiff, the judge found the fact that the horse “was trespassing and doing damage.” Held that there was no error in the finding; although there was no proof of any specific damage done by the horse.</p> <p>Held, also, that under the act to prevent animals from running at large in the public highways, it was lawful for the plaintiff to seize and take into his custody, and retain till disposed of by law, an animal which was trespassing upon premises owned or occupied by him.</p> <p>Some damage, at least nominal, is always presumed from a trespass on land. Hence an action is maintainable, on mere proof of the trespass. Per Tal-COTT, J.</p>

<p>A deed, executed to the defendants’ grantors in 1864, purported to convey lots one and two on the easterly side of a mill canal or race, in the village of Fulton, as the same were laid down on a certain map of said village, “between the mill canal and the Oswego canal, on block 19.” No water rights or conditions whatever, relating to the mill canal or race, were- contained in such deed. The maps referred to, however, showed lots one and two to be bounded, on the westerly side, by the mill canal or race; and the grantees claimed that, by force of that circumstance, they took to the centre of the mill-race. In 1871, the plaintiffs received a deed from the common source of title, conveying to them the entire bed of the mill canal, fronting their premises, which were opposite lot two, so owned by the defendants. Held, that the defendants, by the deed of 1864, took no title to any part of the mill canal, that being merely an artificial reservoir, for the supply of mills, and not a natural stream; and that the referee properly decided that the plaintiffs were the owners in fee of the land covered by the water in such canal.</p> <p>The presumption that a conveyance to the centre line was intended arises only when the grantor is owner of the fee to the centre line. It does not arise where land is bounded by a body of water which is contained in an artificial reservoir constructed for purposes wholly irrespective of any connection with the premises conveyed by the deed to which the presumption is sought to be applied; and when such a presumption would be inconsistent with the uses and purposes for which it is obvious the way or water reservoir was created.</p>

<p>APPEAL by the plaintiff from a judgment of non-suit rendered at the Wayne circuit.</p>

<p>The plaintiffs, separate creditors of an estate, instituted a suit in equity to compel an accounting by the executor, and to set aside a lease made by him. as fraudulent. The complaint alleged that the action was instituted in behalf of the plaintiffs in their respective characters and of all other creditors of the estate who might choose to come in and avail themselves of the decree. One of the defendants, in her answer, pleaded a misjoinder of plaintiffs; to which portion of the answer the plaintiffs demurred. Meld that the demurrer was well taken. And that if there was a misjoinder of parties plaintiff, that defect appeared on the face of the complaint, and the defendant waived the objection by omitting to demur.</p> <p>Held, also, that there was no misjoinder of parties.</p> <p>Whenever there are creditors, or other persons, having demands cognizable in equity, and of equal standing, upon a common fund or estate out of which they claim to be paid, the proper course is for them to imite in one action, in behalf of all; and a complaint filed by one in behalf of all, is not multifarious.</p>

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

<p>A vendor of personal property may retain the possession, even after a sale sufficient to pass the title, if the purchase money has not been paid and no credit has been given, for it. This he does by virtue of the vendor’s lien.</p> <p>The defendant having bought a reaping and mowing machine, for §66, and for that and other property given his note for $78.60, payable at a bank, agreed to sell the machine to the plaintiff for $66, and $10 in advance. There was some question whether the plaintiff was to pay the $66 to the defendant, or upon the bank note; but there was no proof that the defendant ever agreed to give him any credit for any part of the purchase money. The plaintiff paid the $10 advance to the defendant; who refused to let him have possession of the machine, until the whole purchase money should be paid. Thereupon, before the bank note had matured, the plaintiff sued to recover the possession. The plaintiff paid $66 upon the note, at the bank, and the defendant paid the balance, $12.60, and took the note up.</p> <p>Held, 1. That the plaintiff’s right to maintain the action depended upon his right to the possession of the property when the suit was commenced, and upon the question whether the defendant was then a wrongdoer.</p> <p>2. That in the absence of any evidence to show that the payment at the bank was made, and notice given to the defendant, before the commencement of the action, the acceptance of the money, by the defendant, was not such an adoption of the transaction as estopped him from denying that he had been paid for the machine, or from asserting his lien upon it for the purchase money.</p>

<p>MOTION by the defendant for a new trial, on exceptions taken at the Wayne circuit, ordered to be heard at the General Term in the first instance.</p>

THIS action is brought to recover the price agreed by ' the defendants to be paid for the printing by the plaintiff of 1,100 copies of a book containing the proceedings of the said board for the year 1864.

<p>A defendant is as much concluded by the amount of damages he claims in his counter claim as a plaintiff would be by the damages claimed in his complaint.</p> <p>If a referee allows to a defendant a larger sum than he has claimed as damages, in his counter claim, this is an error for which the judgment will be reversed; unless the defendant cures it by stipulating to reduce the amount of the counter claim allowed to him.</p> <p>It would be dangerous, in the extreme, to allow a positive affidavit of the service of papers in the course of legal proceedings to be overthrown by anything less than positive proof, or the most convincing circumstances. Per Talcott, J.</p> <p>Circumstances which were held insufficient, in this case, to overcome the positive oath of the plaintiff’s attqrney as to the service of a reply,</p>

APPEAL, by the defendants, from a judgment of foreclosure and sale.

<p>APPEAL by the defendant from a judgment rendered by a county court, on appeal from a justice’s court.</p> <p>This action was brought in a justice’s court, by the plaintiffs, to recover of the defendant damages for the detention of their canal boat at Rondout, waiting for a load of coal to be carried for the defendant to Syracuse. The defence was a general denial. The defendant was a dealer in coal in Syracuse, and bought coal of the Delaware and Hudson Canal Company, whose coal-yard was at Eondout. George W. Stilwell, Jr., who had an office at 119 Broad street, New York city, was the agent of the defendant for the sole purpose of procuring boats to carry coal from Eondout to the defendant at Syracuse. The course of business was for captains or owners of boats desiring to carry a load of coal for the defendant to Syracuse, to call on Stilwell, and he would give an order on the canal company to deliver to the bearer of the order a certain number of tons of coal, specifying therein the freight to be paid, with directions to advance, on the freight, and for tolls, a specified sum of money. The bearer of the order would carry it to the agent of the coal company, and the coal would be delivered iipon it in its order.</p> <p>One of the plaintiffs testified that he called on Stilwell on the 8th of October, and asked for a load of coal. Stilwell gave him an order; it was enclosed in an envelope ; he never read it, and did not know its contents.</p> <p>The witness was asked, if he had a conversation with Stilwell, and he said he had. When asked to state it, the defendant’s counsel objected to parol evidence of the bargain, as it appeared it was in writing; and the defendant’s counsel offered to produce the order, and also the bill of lading, in order to exclude parol evidence of the contract. The objection and offer were overruled, and the witness said that he asked for a load of coal; Stilwell said he had some to go to Syracuse; he (witness) told him he wanted some for Syracuse; he (S.) said he would give him $1.40 per ton and load right away, as soon as he (witness) could get to Eondout. He wanted to-load right away, so as to make another trip; he asked S. if he would have to lay at Eondout; he said the boat could be loaded as soon as it got there; he said he would give an order for three kinds of coal, so that he (witness) could be sure to load right off.</p> <p>At a subsequent stage of the case the order and bill of lading were put in evidence, and the defendant’s counsel moved to strike out the parol evidence of the contract. The motion was denied, and judgment was rendered for the plaintiff.</p>

<p>MOTION for a new trial on exceptions taken by the defendant at the Seneca circuit, and ordered to General Term in the first instance.</p>

APPEAL, by the plaintiff, from a judgment entered upon the report of a referee. The action was brought to recover for 200 barrels of potatoes, purchased by the plaintiff for the defendant, a corporation, together with $50 for freight, advanced in transporting them from Glen’s Falls to New York, by a canal boat, and for commissions at five cents per bushel, and storage and other expenses, altogether amounting to about $515.

APPEAL, by the defendant, from an order made at Special Term overruling demurrers tó the complaint.

<p>The plaintiff, being the owner of a farm, and having a contract with C. for the purchase of fifty-two acres adjoining it, made a verbal agreement with K. to sell and convey to the latter 110 acres, including part of the fifty-two acres, to be paid for by K. as follows: K. was to satisfy a judgment which he held against the plaintiff; pay the amount due to C. upon the contract for the fifty-two acres; take a deed from 0., and convey the part not included in the 110 acres, to the plaintiff; and to give his bond and mortgage for the balance. The plaintiff’s farm was then incumbered by two mortgages to the state and a judgment held by S., of which K. had notice. The agreement was so modified that the plaintiff and K. were to join in obtaining a release of the 110 acres from the mortgages, and K. was to give a mortgage for $5,000, upon the 110 acres, to the state, as a consideration for the release. The agreement was so far carried out that 0., by the plaintiff’s direction, conveyed the fifty-two acres to K., upon K.’s paying him the amount due upon the contract. Delay ensuing, in obtaining the release from the state, K. told the plaintiff that their negotiations were at an end, and that he should make war upon him. K. then bought in the S. judgment, and caused supplementary proceedings to be commenced thereon, and had a receiver appointed, who sold the plaintiff’s interest in the fifty-two acres, at auction, and K. became the purchaser. Held that the plaintiff could redeem the fifty-two acres from K. or a purchaser claiming under him with notice of the plaintiff’s equities.</p> <p>One is not a bona fide purchaser unless he has paid his money, before notice; . to have given his obligation is not sufficient.</p> <p>A mortgage, not introduced at the trial, may be read upon the argument at General Term, to supply defects in the proof; and a judgment maybe reversed upon facts so shown.</p>

<p>PPEAL from an order made at a Special Term. The facts are sufficiently stated in the opinion of the court.</p>

<p>C. sold his interest in a canal boat, and took, in payment therefor, the note of the defendant, a married woman. The bill of sale of such interest was in the name of the defendant’s son, aá purchaser. The note was transferred to the plaintiff before suit brought thereon. Meld that the bill of sale was conclusive evidence, between the parties to it, that the title to the boat was conveyed to the son, and it was evidence, between third parties, that the son was the purchaser. But that, as between the plaintiff—a stranger to the sale—and any of the parties to it, it was competent to show, by parol evidence, that, although the bill of sale was made to the son, the purchase was in fact made by the defendant.</p> <p>On the trial, the judge, in his charge to the jury, said: “ One fact in this case ought to be enough to dispose of it; that is, that this contract was in writing signed by the vendor himself, and the sale was in fact actually made to the young man, and, although an infant at the time the property vested in him. * * It would be one of the most unsafe things for the jury to do, to go out of the written contract, and be guided by evidence, unsatisfactory evidence, to set aside an agreement in writing,” &c. Meld that the charge misled the jury, not only as to the facts but as to the law. That it was substantially an instruction that the bill of sale was conclusive evidence that the defendant was not the purchaser of the boat.</p> <p>The judge also charged that if the defendant was informed that she would be the purchaser, and would give the boat to her son, then she might be regarded as the beneficial purchaser. Meld that this was also erroneous.</p> <p>The general rule is that a verdict will not be set aside because the judge expresses an opinion, in his charge to the jury, upon the facts.</p>

<p>APPEAL by the plaintiff from a judgment of non-suit. The facts appear in the opinio:</p>

I 1ST the summer or autumn of 1870 the plaintiff entered into a contract with Greorge Gr. Baker, to skid and draw to the plaintiff’s saw-mill, in Rem sen, Oneida county, a-quantity of saw logs. Baker wanted a yoke of cattle to enable him to perform his contract. One Hughes had a pair that would answer Baker’s purpose, that he offered to sell to Baker for $190, but declined to take Baker’s note therefor.

<p>APPEAL from a judgment for the plaintiff upon a .verdict at the Wayne county circuit, and from an order denying a 'new trial on the minutes.</p>

CONTROVERSY submitted without action, under section 372 of the Code. Louisa Easterly was owner of two lots of land in the city of Auburn, one known as the homestead lot, the. other as the Denis lot, containing in all some seven acres of land. She died in April, 1866, leaving a last will and a codicil thereto, which were duly proved before the surrogate of Cayuga county.

APPEAL by the defendants from a judgment entered upon the report of a referee. Gilbert Hathaway, of Starkey, in the county of Yates, was owner in fee of a farm in said. town on which he lived, and on the 30th June, 1854, he made a last will, wherein and whereby he devised to his wife, amongst other things, the use of said farm for life. On her death he devised the same to his son Charles, subject to the life estate of the wife.

<p>The defendant, desiring td^purchase a “Stewart” stove applied to W. <fc B., stove dealers, who, not keeping the “Stewart” stove, persuaded him to take one of another kind, on trial, promising, if it did not suit, to take it back and procure a “ Stewart” for him. The stove taken did not suit. Subsequently, B., a member of the firm, called the defendant into the store of the plaintiffs, and sold him a “Stewart” stove, belonging to the plaintiffs, who paid B. a commission for selling it; B. agreeing that the stove on trial should be taken in part payment and orders for clothing given, on the defendant, for the balance. W. & B. took the first stove back, and gave an order on the defendant, which was honored by him. The stove was charged to the defendant by the plaintiffs. In an action to recover the price, there was a conflict in the testimony, as to whether one of the plaintiffs was present and heard the, negotiation for the sale of the stove. The court below ordered a verdict for the plaintiff. Held that the case was clearly one for the jury, and it was error to refuse to submit it.</p>

<p>MOTION for a new trial, by the defendant, on exceptions taken at the Monroe circuit, and ordered to be heard at the General Term in the first instance.</p>

IN’ January, 1871, the defendant owned a store, in the city of Buffalo, which had been leased to a tenant by a lease which was to expire on the 1st of May then next. The plaintiffs were partners, and desiring to rent the store, they wrote to the defendant, who resided at Richmond, Va., inquiring whether he would rent it for five years from the expiration of the then existing lease.

<p>The declarations of an agent are not admissible against the principal, unless made while he is performing some act, and in reference to the thing done.</p> <p>A witness for the plaintiff, on a trial before a referee, testified, under objection by the defendant, to statements made to him by the defendant’s agent, in respect to a previous transaction between the plaintiff and defendant. Held incompetent evidence.</p> <p>The witness also testified that he “ understood ” that the mating of a contract between the parties satisfied and cancelled a previous contract in writing between them. Held incompetent. That it was his duty to testify as to what was said or done from which he derived his understanding; and it was for the referee to say what was intended by the parties.</p>

<p>The provisions of title 4 of part 2 of the Code are not applicable to suits commenced in a court of a justice of the peace. •</p> <p>The provisions in that title contained, in regard to the place of trial of actions, are expressly made subject to the power of the court to change the place of trial, in the cases provided by statute, and cannot be considered as applicable to justices’ courts, which have not the power to change the place of trial.</p> <p>Although section 8 of the Code declares, in general terms, that the first four titles of part 2 relate to actions in all the courts of the state, this must be understood to mean—so far as they are applicable to the practice and powers of any such courts.</p>

<p>APPEAL, by the plaintiff, from a judgment dismissing the complaint.</p>

<p>Words charging an unmarried female with having had illicit intercourse with a person named are not actionable per se.</p> <p>The special damage necessary to maintain an action for uttering such words must be of a pecuniary character.</p> <p>The only matters claimed to be special damages, alleged in the complaint, were, that in consequence of the speaking of the words, the plaintiff had been “ slighted, neglected and misused by the neighbors and her former associates, and turned out of doors.” No evidence was given of any maltreatment or neglect which could have any tendency to injure the plaintiff pecuniarily; although it appeared that the plaintiff was, in substance, requested to leave the house of one D., where she went to make a call'. Held that the plaintiff was properly nonsuited.</p> <p>Although the refusal of gratuitous entertainment to the slandered party, by a person from whom she had been accustomed to receive it, is sufficient, by way of special damage, to sustain the action; yet it must appear, and be proved, that such refusal was the direct result of the speaking of the objectionable words by the defendant.</p> <p>Although the defendant may have been the original author of the charge, yet if the particular damage complained of was the result of a repetition of the ■ charge by some other person, the defendant is not liable for the damage.</p>

<p>The defendant, npon a ease made a motion, at a Special Term, for a new trial, which motion was denied. From the order denying that motion no appeal was taken; the defendant appealing from the judgment alone. Held that the court could only consider the exceptions.</p> <p>In an action for the conversion of a canal-boat, it appeared that the boat had been delivered to the defendants to repair, by 0. The defendants, by their third answer, alleged that the plaintiff saw the boat while in their possession, and knowing that they were making repairs omitted to disclose his title to the boat; and claimed that the plaintiff was thereby estopped from claiming the boat, except subject to their lien. The plaintiff did not reply to the answer. On the trial, the defendants claimed to read the third answer in evidence, as proof of the allegations therein contained, on the ground that it set up a counter claim, and not being replied to, its truth was admitted. Held that the facts alleged did not constitute a counter claim, and the court below properly overruled the claim made. That the most that could be claimed for the answer was that it set up an estoppel on the question of title, and the facts alleged in it might have been given in evidence on the question of title, without any special answer.</p> <p>Where a mortgagor of personal property has possession and control of the property, this is prima facie evidence of a right to the possession; and if a third person seeks to impeach that right he must produce the evidence by which it would appear that the possession was wrongful, or that the right has been diverted according to law.</p>

<p>The plaintiff leased a farm, and certain personal property, to the defendant, for one year, " with the privilege of two years more, at the same rate, if they agree.” After the end of the second year, the plaintiff’s attorney placed a summons, and other papers, in an action of claim and delivery, in the hands of the sheriff, with directions to demand the personal property, and, if it was refused, to serve the summons, <5$c., and seize the property. The sheriff demanded the property, and, the defendant refusing to deliver, served the summons, &c.; and seized the same. The affidavit in the proceedings was sworn to before the demand was made. There was no proof of the extension of the lease after the first year.</p> <p>Eeld, 1. That the demand was made before suit brought, and was sufficient.</p> <p>2. That the proceedings might have been set aside, on motion, upon the ground that the affidavit was sworn to before the demand was made; but that it was too late to raise that question on the trial.</p> <p>3. That, in the absence of all evidence as to a new leasing, the presumption was, that the term was extended, by consent, for two years longer, and that the tenant was in possession under the lease. That it was competent for the parties to agree to extend the lease for less than two years, and if for less, the parties did not agree to an extension for two years; but that it required a special agreement for less than two years, to prevent the extension being presumptively for two.</p> <p>4. That a judgment quashing a certiorari brought to review summary proceedings to remove the defendant from the farm, was not a bar to the right of the defendant to insist that by the terms of the contract, and the action of the parties under it, the term was extended two years.</p>

<p>The counsel for the respective parties stipulated, in open court, that the referee need not state specifically the facts found by him, but might state, generally, his conclusions, if the report should be in favor of the defendant. The referee reported simply that the plaintiff ought not to have or maintain her action against the defendant. Held that it must be assumed that the referee had found in favor of the defendant upon all the points in issue, where such finding was necessary to sustain the report.</p> <p>The plaintiff’s husband being charged by the defendant with embezzlement from him, to a large amount, she, at her husband’s request, and, as she claimed, upon an understanding and implied agreement on the part of the defendant that he would refrain from prosecuting the husband, executed a conveyance of real estate to the defendant, but without any compulsion, or other duress than that arising from the' circumstances. Held that this did not amount to a case of legal duress.</p> <p>Hdd, also, that although the deed might be void on the ground that it was executed in consideration of compounding a criminal offence, and was therefore contrary to the statute; yet that equity would not relieve the party who exe- ' cuted it upon or for such immoral and illegal consideration and purpose; both parties to the conveyance being in pari delicto.</p>

<p>APPEAL from an order of the Special Term of Erie county, overruling a demurrer to the complaint.</p>

THE plaintiff was a niece of Chillingsworth Colwell, the defendant’s intestate, and went to live in his family, in Octobér, 1856. She lived with him, taking care of his wife, who was, for several years, a paralytic, of his daughter during her latter illness, and of her child after its mother’s death. She was, for part of the time, the only friend in the family, and had the supervision of the household affairs. She ceased to live with the intestate in March, 1865.

<p>The defendant, a shipper and forwarding agent at F., agreed to ship and forward some furniture to the plaintiff at New York, by the 0. line of canal boats, and under deck. The furniture was forwarded by boats not belonging to the 0. line, and only a part of it was under deck. Held that the defendant was liable for damage done to the goods in transportation; and this whether he forwarded the goods under a contract, or acted as the plaintiff’s agent in forwarding them.</p> <p>That in the latter case, the defendant would be held as an insurer of the goods, having shipped them in a manner prohibited by the principal.</p>

<p>The defendant, being the owner of a farm, conveyed the same, with a covenant for quiet enjoyment, to the plaintiff. The deed contained this clause: “ Reserving, always, a right of way as now used, on the west side of the above described premises for cattle and carriage from the public highway to the piece of land now owned by S. B. R., lying north of and adjoining the premises herein conveyed.” Subsequently, the defendant executed to the plaintiff a deed quitclaiming all his right, title, &c., in and to the premises contained in the first deed, together with other land. This deed did not contain any reservation of the right of way, nor any exception of any part of the land, R., the adjoining owner on the north, claimed a right of way, by prescription, over the premises conveyed by the first deed, at the place mentioned in the reservation. The plaintiff, claiming that the right of way, reserved in the first deed, was released by the quitclaim deed, obstructed the way, so as to prevent R. from passing along the same; and for such obstruction R. recovered a judgment against him. The plaintiff, claiming that such recovery was a breach of the covenant for quiet enjoyment, contained in the first deed, brought an action to recover damages therefor.</p> <p>Held 1. That the facts of the case, and the language of the deed relating to the right of way, gave the plaintiff notice of the existence of a right of way in R., or some person other than the grantor.</p> <p>2. That it was the intention of the parties to except such right of way from the operation of the covenant; and it being the duty of the court to so construe the deed and covenant as to give effect to such intention, the clause of the deed relating to the way, should be considered as an exception, and not as a reservation.</p> <p>3. That thus construing the clause, the way was not a breach of the defendant’s covenant, and the plaintiff was not entitled to recover.</p> <p>An exception to a ruling of the court, ordering a nonsuit, does not entitle the plaintiff to take advantage of the error, if any, of omitting to submit any particular question of fact to the jury.</p>

THIS case came before the court upon a re-argument, allowed upon motion made for that purpose, at a former term. The case is an appeal from an order of the county court of Cortland county, denying a motion made by the defendant therein to strike out the costs in the case, allowed to the plaintiff by the clerk, on an adjustment, and to allow costs of the appeal from the justice’s court to the county court to the defendant.

THIS action was originally brought in a justice’s court, in Essex county, where the defendant recovered a judgment for costs. From this judgment there was an appeal to the county court, where the action was tried before a jury, and a verdict and judgment rendered in favor of the plaintiff, for $300, beside costs, and from this judgment an appeal was brought to this court.

<p>The rule is firmly established that when the evidence, as to the existence of an alleged fact, is conflicting, the finding of the referee upon the question concludes the parties.</p> <p>In such a case, the findings of the referee will be reversed or overruled, on appeal, only when clearly unsupported by, or when against, the evidence.</p> <p>The defence that the contract sued on is void because against public policy and contrary to good morals, need not be set "up in the pleadings. Before a recovery can be had by the plaintiff, he is bound to prove a valid, binding contract. Such proof is indispensable to a right of action; and the immorality of the alleged agreement can be insisted on under an answer containing a general denial.</p> <p>In an action to recover for services alleged to have been rendered by the plaintiff for the defendant, under an agreement, the referee found that the defendant employed the plaintiff to act as his agent, and to give his attention and services in and about mailing, preparing and prosecuting a certain claim which the defendant had against the state, before the legislature, and in preparing and perfecting a bill to be prosecuted before said legislature, for the settling and paying of such claim, and ascertaining the amount. That the plaintiff should malic the necessary statements of the facts and attend before the proper committees of either or both houses, prepared to argue the same, if necessary; and that he should do all that was necessary and proper to be done to ensure its passage ; and that for such services, the defendant promised and agreed to pay the plaintiff the sum of $1,800, out of the first moneys he should receive on account of the claim. Held that there was nothing of an illegal character expressly stipulated .for, in the agreement; and that the contract as proved and found was not, of itself, and by its terms, necessarily illegal and void.</p> <p>Held, also, that the legal presumption waá in favor of its validity; that it might or might not cover an illegal consideration. Hence it fell within the province of the referee to determine, from the whole case, whether illegal ser_ vices were in the contemplation of the contracting parties.</p> <p>And the referee having, upon conflicting evidence, found, in effect, that none but legal services were stipulated for or contemplated, by the parties; it was held that the court was not at liberty to say that he had found erroneously, . or erroneously refused to find as requested.</p> <p>One who has a claim against the state may employ competent persons to aid him in obtaining appropriate legislation, to the end that Ms claim may be recognized and satisfied.</p>

<p>Where the findings of fact of a referee are quite material and largely affect the question of damages, and they are clearly unsustained by the evidence, the court will reverse the judgment entered upon his report and grant a new trial.</p>

<p>A judgment in a partition suit settled the rights of the parties in the premises, holding that they were tenants in common, and that the defendant had received the rents and profits of said premises to his own use. As conclusions of law, it adjudged the rights as thus stated, and directed that partition be made according to the rights so found; that three reputable freeholders be appointed commissioners to make such partition; that the defendant render an account of the rents and profits of said premises, and of the timber cut; and that a referee be appointed to take and state such account; and it ordered judgment accordingly, with costs. Then followed this provision: “ All other questions, except the appointment of commissioners and the referee, are hereby reserved until the coming in of the report of the commissioners and referee.”</p> <p>Held, 1. That the judgment determined that the rights of the parties were as stated; that partition should be made, by commissioners, of said premises, and that the defendant account for the rents and profits since the 4th of April, 1841.</p> <p>2. That the judgment thus rendered decided the whole issue between the parties, and left nothing open and reserved, except matters of detail in carrying out such judgment.</p> <p>3. That the question.of the defendant’s liability to account for the rents and profits since the 4th of April, 1841, was not an open question for review, on appeal from a subsequent order; the defendant’s remedy being by appeal from the judgment.</p> <p>4. That the- court, at special term, in confirming the report of the referee made in conformity with the judgment, had simply given effect to such judgment, and the order of confirmation was not erroneous.</p> <p>5. That if the defendant’s liability to account was limited to six years before the commencement of the suit, that question should have been raised at the trial; that it could be raised at the general term only on appeal from the judgment.</p>

<p>In an action upon a policy of insurance, the proofs showed that after the fire, L. the defendants’ president came to the place to adjust the loss; that he and H. the agent of the defendants saw W. the party insured, the three ascertained the amount of the loss and -adjusted and liquidated the same, and L. promised to send a check or draft to W. for the amount. Held that upon this promise a hew right of action arose, as upon a new agreement; and that the evidence would have warranted the jury in finding a new agreement, independent of the policy.</p> <p>Held, oho, that the case should have been submitted to the jury, on the question of a new promise, express or arising by implication from the liquidation of the amount due for the loss and an admission of indebtedness to that amount; and that the judge erred in taking it from them.</p> <p>By the present practice, when proof is given sufficient to sustain a cause of action, in substance as stated in the complaint, the court should allow the jury to pass upon the evidence, and amend the pleadings to sustain a verdict, if need be, if no substantial injustice will be done thereby.</p>

<p>A referee found that in the spring of 1869 the plaintiff agreed with the defendant to purchase, and the defendant to sell, a certain quantity of shingles then manufactured, and all the shingles of the same description which the defendant should manufacture during the season which would end about the 18th of November following. That the plaintiff advanced, upon such contract, from time to time, §3,698.98, and received shingles to the amount of §3,178.12. That on the 7th of September the plaintiff notified the defendant that he would not take any more shingles. That the defendant manufactured 225,000 shingles that year of the description the plaintiff was bound to take, which he sold to other persons, at a loss of §112.50. That there was an excess of money in the defendant’s hands of §B20. From that sum the referee deducted said sum of §112.50, and ordered judgment for the plaintiff for the balance. Held, that the referee’s conclusion of law, from the facts found, was correct.</p>

<p>An appeal will not lie from a judgment rendered on the report of a referee, in an action pending in a county court, upon a case and exceptions settled by such referee, where it does not appear that any motion for a new trial was made in the county court, upon the exceptions, or that the decision of the referee, on the trial, or in his report, has ever been reviewed in the county court.</p>

<p>APPEAL, by the defendant, from a judgment entered upon a verdict.</p>

<p>APPEAL, by the defendant (who was sued as survivor of the firm of Jacob Edick & Son,) from a judgment entered upon the report of a referee.</p>

On the 13th December, 1871, an affidavit was presented to William S. Briggs, then county judge of Tates county, made by Alexander F. Whittaker, entitled as follows: “In Justice’s Court. Alexander F. Whittaker m. Hiram Gr.

<p>APPEAL, by the defendant, from a judgment on the report of a referee.</p>

<p>Under section 111 of the Code, which authorizes an action to be brought in the name of the real party in interest, a party can maintain an action on a promissory note not negotiable but of which he is the real owner.</p> <p>The defendant and U. being partners, a note, made by the defendant and indorsed by U., but given for matters unconnected with the partnership, was sold to the plaintiff. Payments were made to the plaintiff by the defendant, at the request and for the benefit of U., but upon an agreement between U. and the defendant that they should not be applied on the note, but should be charged to U. and credited to the defendant, on the books of the partnership; which was done. Held that the referee was right in refusing to allow these payments as a set-off against the note.</p> <p>After the assignment of the note to the plaintiff, a settlement of the partnership transactions between the defendant and U. was had, and U. was found indebted to the defendant, on that account; but such indebtedness was unliquidated at the time of the purchase of the note by the plaintiff, and it required an accounting to liquidate it. Held that the amount of this indebtedness could not be set off, in an action upon the note.</p>

APPEAL, by the plaintiffs, from a judgment entered on the report of a referee. The plaintiffs were partners residing in the city of New York, and Boberts & Green were partners residing and doing business as merchant tailors in Auburn, Cayuga county. The plaintiffs sold and delivered goods to Boberts & Green and advanced them money, to the amount of $390.27, for which they were indebted to the plaintiffs in October, 1867.

APPEAL, by the plaintiff, from a judgment entered upon the report of a referee. The action is in the nature of a creditor’s bill, to enforce a judgment for $168.50, damages and costs, recovered by the plaintiff against Robert Stokes, in this court, on the 24th September, 1868, against the property of Jane Stokes the wife of said judgment debtor, after execution returned wholly unsatisfied.

APPEAL by the defendant, from a judgment of the county court of Oneida, affirming a judgment for the plaintiff, rendered by a justice of the peace. The facts appear in the opinion.

<p>APPEAL from an order of the Monroe Special Term, denying a motion for a preliminary injunction.</p>

APPEAL, by the defendant, from a judgment of a county court, affirming a judgment rendered in a justice’s court, in favor of the plaintiff.

APPEAL, by the plaintiff, from an order made at a Special Term directing an assignee in bankruptcy to be substituted in the defendant’s place, as defendant in this action.

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

<p>A lease of a farm contained a covenant, on the part of the lessee, not to sow any mustard seed or white daisies on the farm, during the term. In an action against the guarantof, for a breach of this covenant, a witness being ashed “ How much was the damage to that farm, in consequence' of the daisies upon it?” expressed the opinion that the daisies damaged the farm to the amount of fifty dollars. Held that the question was clearly incompetent.</p>

<p>In an action brought by the plaintiff as assignee of W., of a claim, the defendants pleaded a set-off against W., and the plaintiff replied by a general denial. On the trial the defendants established the set-off, and the plaintiff proved W.’s discharge in bankruptcy. When the discharge was offered, no objection was made by the defendant^that it was not set up in the reply. The referee having reported in favor of the plaintiff: Held that it was too late, on appeal from the judgment, to object that the discharge was not set up in the pleadings. That if it had been intended to rely upon that objection, attention should have been called to it at the time, in order that the referee might have allowed an amendment.</p>

<p>When the place of trial is in a county in the Third Judicial Department, and on the trial exceptions are ordered to be heard at a General Term, in the first instance, a General Term held in the Fourth Department has no authority to hear and determine the case, unless it shall have been ordered there by the General Term of the Third Department, under section 10 of the Laws of 1870, ch. 408.</p> <p>In such a case a motion for a new trial cannot be made at a General Term in the Fourth Department on the ground that such General Term is held in a county adjoining the place of trial.</p>

<p>APPEAL from a judgment of nonsuit entered at the Onondaga circuit.</p>

<p>APPEAL from a judgment entered on the report of a referee. •</p>

<p>On a motion to vacate a judgment for the specific performance of a contract of purchase by the defendant, it appeared, by the affidavits, that the plaintiff concealed from the defendant that she had parted with the title of a portion of her property before the contract was made, and of other portions after-wards ; and her conduct indicated bad faith, and she had voluntarily disabled herself from performing the contract; and the plaintiffs affidavits, alone, went very far to prove an actual rescission of the contract on her part. Held that these facts clearly entitled the defendant to relief; and that, had they been proved on the trial, the court would not have been justified in decreeing a specific performance.</p>

<p>MOTION for an injunction and a receiver. The opinion states the material facts.</p>

<p>On the 24th of December, 1869, Q., by a letter of credit dated at Breman, addressed to the plaintiffs, at New York, opened an account with the latter in favor of R. & Co. of New Orleans, for $50,000, to he used by sixty days sight drafts, “for advances to be made on consignments of merchandise” to Q.’s address. On the 17th of January, 1860, the plaintiffs, by letter, informed R. & Co. that Q. had opened a credit with the plaintiffs in favor of R. & Co. for that amount, to be used by the drafts of R. & Co. at sixty days sight “ against shipments of consignments to the address of Q.” The letter confirmed the credit, and promised that the drafts of R. <& Co. should meet with prompt protection. Held, that the drafts which, under this letter, would fall within the plaintiff’s promise to accept, must be drafts at sixty days’ sight, and must be against shipments of consignments to the address of Q.; and that the promise to accept did not include drafts of R. & Co. drawn to pay their own previously dishonored drafts upon other parties, in favor of the person to whom those last drawn were delivered. That the holder of the last drafts had notice that they were not drawn within the instructions given by the plaintiffs.</p> <p>And in an action by the plaintiffs against Q. for reimbursement of the amount of drafts which they had accepted and paid; Held that the defendant had a ‘ right to show that the drafts were not of the kind which the plaintiffs were bound to accept.</p> <p>Held, also, that an acceptance of a draft drawn by R. & Co., after a revocation by Q. of the plaintiff’s authority to accept, and notice of such revocation to R. & Co. could not stand alone upon the revoked authority, but must have, connected with it, such extraneous circumstances as would show that the plaintiffs had the right to charge Q. notwithstanding his recall of the letter of credit, and that upon that question the burden of proof was upon the plaintiffs.</p>

APPEAL, by the defendants, from a judgment entered on the verdict of a jury.

rpHIS cause was tried before Ms honor Judge Van JL Brunt, without a jury.

<p>A mandamus mil not lie to compel the payment of a money demand on contract, where a proper remedy by action exists; especially where the facts upon which the claim is based are disputed.</p> <p>Although there may be cases of claims against a city, where a mandamus is proper—as where it is asked for by reason of the refusal of some officer to do his part of the duty necessary to enable the claimant to obtain his pay, if the claim is not disputed; or where some duty-is to be performed, other than the mere payment of a debt; or where the remedy by action is inappropriate—yet it will not be granted against the comptroller to compel the payment of money claimed to be" due upon a contract for labor, where the comptroller denies the validity of the contract, charges that it was illegally made, and that the prices charged are excessive.</p>

<p>APPEAL, by the plaintiff, from a judgment entered at a Special Term, dismissing the complaint.</p>

THIS action was brought to recover for services rendered by the plaintiff as attorney and counsellor and for money advanced.

<p>In an action upon a check, alleged to have been given by the defendant to the plaintiffs for value, the answer denied the receipt of anything therefor, and alleged that the check was placed in the plaintiffs’ possession to be held subject to the drafts of the defendant in favor of such of the creditors of L. as should release him from his indebtedness; and that before such releases were given, the defendant demanded back the check from the plaintiffs. It was shown that the attempt to obtain releases was unsuccessful, and payment of the check was stopped. Held that the plaintiffs had no title to the check ; nor could they obtain any, before the agreement had been fully complied with, nor until the defendant had drawn upon them for some portion of the amount.</p>