Volume 66 — New York Reports

(Reported below, 4 Hun, 795.) This action was brought to foreclose a mechanic’s lien for materials furnished by plaintiffs to a contractor for the erection of two engine-houses in the village of Greenbush, Rensselaer county. A notice of lien was filed December 17, 1872, with the town clerk of the town of Greenbush, in which town said village is located. The notice of lien should have been filed in the office of the town clerk.

Aureal from judgment of the General Term of the Supreme Court in the fourth judicial department affirming a judgment in favor of defendants, entered upon a decision of the court on trial without a jury. (Eeported below, 4 Hun, 359.) This was an action for trespass upon certain lands in Cattaraugus county. Both parties claimed title to the locus m quo. Plaintiff claimed title under a foreclosure and sale of the premises upon a mortgage duly recorded.

(Reported below, 5 Hun, 428.) It appeared by the return to the writ that defendant was adjudged in contempt; that the court imposed a fine and directed defendant to be imprisoned thirty days, and until the fine should be paid. In the sum imposed as a fine was included an item of $150 “ as a counsel fee,” which was claimed to be erroneous. The court had no discretion as to the amount of the fine to be imposed.

This action was brought to recover damages for injuries resulting from a collision at a railroad crossing between a buggy, in which plaintiff was riding, and a train on defendant’s road, alleged to have been caused by the negligence of defendant’s employes. Plaintiff was riding at the invitation of one Conlon in a buggy belonging to him, he being the driver. Conlon was an able-bodied man, and in every way competent to drive and manage' the establishment.

(Beported below, 4 Hun, 692.) This action was originally brought against the Indianapolis, Bloomington and Western Bailway Company, to collect ten coupons each for the semi-annual interest due April 1, 1811, on a $1,000 bond issued by said corporation, also to collect forty-seven “ interest warrants,” so called, for semi-annual interest due at the same time upon bonds which said corporation was obligated to pay.

This action was brought upon a policy of life insurance issued by defendant upon the life of plaintiff’s intestate, Isaac McNeilly. The policy was issued June 22, 1870. It was obtained through one E. D. Weller, who, at the time, was general agent of defendant. To him the insured paid the premiums as they fell due up to December 22, 1873, receiving receipts therefor.

This action was brought upon three bills of exchange drawn by defendants upon Adlington & Nicholson, of Liverpool, payable in London at sixty days after sight. The defendants, Sinclaire & Marvin, the drawers of the’ bills, were merchants doing business in New York, and were-engaged in buying and shipping corn from this country to Liverpool.

<p>Although remaindermen and reversioners may be made parties defendant in an action for partition, they cannot institute the action, at least as against others not seized of alike estate in common with them. The right is only given to one having actual or constructive possession of the lands sought to be partitioned. A remainderman has neither, but simply an estate to vest in possession in futuro.</p> <p>As to whether remaindermen having undivided interests may compel a partition as-between themselves, leaving the tenants entitled to the pas session undisturbed, quaere.</p> <p>Blakeley v. Oald&r (15 if. Y., 617) distinguished and limited.</p> <p>Sowell v. Mills (56 N. Y., 226) distinguished.</p> <p>Sullivan v. Sullivan (4 Hun, 198) reversed.</p>

(Reported below, 4 Hun, 721.) This action was for the partition of certain lands situate in St. Lawrence county. On February 23, 1850, one-half of the premises in question was owned by Hiram B. B. Thurber, the other half by Kelsey T. Thurber. The former was an adopted son of the latter, but not of his blood. On the day mentioned said Kelsey T. Thurber executed his last will and testament containing the following clauses: “ First.

(RepQrted,below> 6 Hun, 446.) This action was brought to- recover damages for injuries alleged to have caused the death of John Sauter, plaintiff’s intestate, and to have been occasioned by the negligence of plaintiff’s employes. The facts appear sufficiently in the opinion. The onus was upon plaintiff to show that the death- of the deceased was caused by defendant’s negligence. (Sheldon v. H. R. R. R. Co., 29 Barb., 226; Curran v. W. C. and Mfg.

the Supreme ’.Court in the third judicial department in -favor of plaintiff, entered upon an order denying motion for .a new trial and directing judgment upon a verdict. This action was brought upon a bond given by defendants, Demando :P. Draper and Arthur J. Griggs, as railroad commissioners, and'signed'by them-as principals and by the other defendants as sureties.

The nature of the action and the facts are sufficiently set forth in the'opinion: Defendants were liable for injuries from- thé accumulation of' water on plaintiffs’ lands, resulting from the embankment.

This action was upon four promissory notes alleged to have been made by defendant Henry Reges and indorsed by defendant Keller, which notes were given to William Elliott for cattle delivered to George Reges, who signed the' name of Henry to the notes with the knowledge of Elliott. Keller. indorsed upon the representation of Elliott that the notes' were executed by Henry. Elliott transferred the, notes after maturity and without consideration to plaintiff.

Appeal, from order of the General Term of the Superior .Court of the city and county of Hew York reversing a judgment in favor of plaintiff, entered upon a decision of the court at Special Term. (Reported below, 6 j. & S., 274; 14 Abb. [H. S.], 206.) This action was brought for an alleged infringement of plaintiff’s trade-mark. ' Plaintiff was engaged in the business of refining and packing lard for transportation, as was also the defendants.

(Reported below, 4 Him, 129.) This was an action to foreclose a mortgage executed September 1, 1865, by Michael Gorkins and wife, to secure a bond of said Gorkins given to Thomas George and Enoch Carter. On the 20th June, 1866, said bond and mortgage were assigned by the mortgagees to one John Hill, Jr., and through various intesmediate assignments were transferred to plaintiff. ¡None of the assignments were recorded until after August, 1874.

^(Reported below, 2 Hun, 492.) This was an action for fraud. The facts sufficiently appear in the opinion. Fraud, accompanied by damage, makes a cause of action. (Pasley v. Freeman, 3 T. R., 51; Upton v. Vail, 6 J. R., 181; White v. Merritt, 7 N. Y., 352, 357; 2 Wend., 385; 38 Barb., 210; 1 Kent’s Com., 478.) It was proper to prove the value of the cheese in New York.

This action was brought against defendants, the commissioners and overseer of highways of the town of Leon, Cattaraugus county, for damages alleged to have been sustained by their turning a stream from the highway upon plaintiffs land. The facts appear sufficiently in the opinion. Ho one has a right to change the course of a living stream of water and thereby make it overflow the lands of another.

(Reported below, 7 J. & S., 544.) The nature of the action and facts are sufficiently set forth in the opinion. Defendants had a right to have their counter-claim determined in this action. (Code, § 150.) It was error to exclude the conversation with one of the defendants, a part of which had been proved by plaintiffs.

This action was upon two policies of marine insurance, one for cargo, mahogany and fustic, the other upon specie specified as “ Mexican doubloons,” alleged to have been taken on board the brig Paquet de Tampico on a voyage from Laguna via Minatitlan to Yew York. The specie, as plaintiff’s evidence tended to show, was taken on board secretly at Laguna and was placed in the “run” of the vessel under the hallast. The vessel sailed from Laguna to Minatitlan.

Appeal'from judgment of- the General Term of the Supreme Courtin-the fourth judicial department in favor of the defendants, Olmstead and the Hew York Warehouse and Security Company, entered upon an order denying motion for a new trial, and directing judgment on a verdict. (Reported below, 3 Hun, 744; 6 T. & 0., 172.) This was an action of replevin to recover possession of 226 hales of cotton.

<p>A policy of fire insurance contained a clause declaring, in substance, that in case the assured cause the property to be described other than it really is, so that it be charged at a lower premium, or if the risk be increased by means within his control, without notice and consent, the policy will be void; also, that if the risk be increased by the erection of buildings, “or by the use of neighboring premises or otherwise,” or if for any other cause the company shall so elect, it shall be optional with it, after notice to the assured or his representative, to terminate the insurance; in that case refunding a ratable proportion of the premium. In an action upon the policy, defendant’s evidence tended to show that before the loss it notified the insured and plaintiff, who, as mortgagee, was, by the policy, entitled to receive the insurance in case of loss, that it elected to and did cancel the policy; defendant also tendered back the unearned premium. Meld, that it was entirely optional with defendant when, and for what reason, to terminate the insurance, and the motive or the sufficiency of the cause could not be inquired into; and that, therefore, a refusal of the court so to charge, and a refusal to submit the question of cancellation to the jury, was error.</p>

Appeal -from. order of -the General Term of the Supreme Court in the third judicial department, -affirming an order of Special Term setting -aside a service -of the summons upon defendant Grier. (¡Reported below, 6 Hun, 477.) Said defendant was the only one served.

The action had been tried upon the merits, and judgment perfected in favor of defendant, and the motion was made pending an appeal from the judgment. The court has no power after judgment, and pending an appeal therefrom, to grant an injunction in the same action, or to revive a preliminary injunction previously granted. (Erie R. Co. v. Ramsey, 45 N. Y., 637-645; Fellows v. Heermans, 13 Abb.

The nature of the action and the facts are set forth sufficiently in the opinion oi Andrews, J. The acts of 1863 and 1864, so far as they declared the bonds valid, in spite of the non-consent of the town, are unconstitutional and void. (People v. Batchellor, 53 N. Y., 128; 2 Redf. on Railways, 434; Town of Queensbury v. Culver, 19 Wal., 91; People v. Mitchell, 35 N. Y., 551; Young v. Beardsley, 11 Paige, 93; Beekman v. Sav.

Brick, late of Brooklyn, deceased. The deceased died August 7, 1867, aged fifty-five years, leaving Julia E. Brick, his widow, three brothers and a sister him surviving. He left a large estate, all of which by the will was given to his widow. The will was contested upon the ground of mental incapacity and of restraint and undue influence. The citation was served upon all the heirs and next of kin.

<p>One who, either with or without notice of a prior unrecorded mortgage, takes a mortgage or conveyance of land as security for an existing debt, without giving up any security or divesting himself of any right, or doing any act to his own prejudice, on the faith of the title, is not a Iona, fide purchaser for value within the meaning of the recording act (1 R. S., 756, § 1), and as against him the prior mortgage is valid.</p> <p>An assignee, for value, of the subsequent mortgage, or grantee for value, claiming under the subsequent deed, stands in no better position than the mortgagee or original grantee.</p> <p>Jackson v. Van Valkeiiburgh (8 Cow., 260); Fort v. Burch (5 Den., 187) distinguished.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department affirming a judgment in favor of defendant, entered upon a verdict.</p> <p>This action was in the nature of a quo warranta to determine the title to the office of commissioner of jurors.</p> <p>The relator was appointed to that office Hay 31,1864, under the provisions of the act creating it (chap. 495, Laws of 1847), and continued to act until displaced by defendant, who was appointed July 22, 1875, under the provisions of the city charter of 1873. (Chap. 335, Laws of 1873.) Further facts appear in the opinion.</p> <p>The act of 1873, under which the respondent was appointed, was violative of section 16, article 3, of the Constitution. (People ex rel. Rochester v. Briggs, 50 N. Y., 558 ; Harris v. People, 59 id., 602.)</p> <p>The title to the charter of 1873, under which defendant was appointed, was sufficiently comprehensive. (People v. Comr's. of Taxes, 47 N. Y, 501; Huber v. People, 49 id., 132: Sullivan, v. Mayor, 47 How. Pr., 491.)</p>

(Beported below, 6 Hun, 218.) This was an action to obtain a construction of the will of James Hays, of Newburgh, N. Y., and for the appointment of a trustee to carry out the provisions of the will.

This action was brought to set aside a judgment of foreclosure and sale, and the sale thereunder, and for an accounting by defendant, as mortgagee in possession. The facts are sufficiently stated in the opinion. The omission to appoint a guardian ad Utem did not render the judgment void. (Rutter v. Puckhoffer, 9 Bosw., 638; Boleyn v. McEvoy, 29 How. Pr., 278; Croghan v. Livingston, 17 N. Y., 221; Austin v. Trustees, etc., 8 Metc., 196; Rogers v. McLean, 31 How.

(Reported below, 4 Hun, 769.) This action was brought to recover damages for injuries alleged to have been sustained through defendant’s negligence. A track of defendant’s railroad in the city of Albany runs close along by the dock. Defendant had placed a derrick on this dock to aid in transferring rails from boats to ears.

The nature of the action and the facts appear sufficiently in the opinion. The General Term of the Marine Court did not hear the case upon the merits, but made the order vacating and setting aside the judgment below, upon the ground that the Marine Court acquired no jurisdiction. The Marine Court had no jurisdiction of the subject-matter of the action, and none was obtained by the consent to its trial in that court.

Appeal by Michael Grosz and Frederick H. Grosz, purchasers at a foreclosure sale herein, from an order of the General Term of the Supreme Court in the first judicial department affirming an order of Special Term requiring them to complete their purchase. This action was brought to foreclose a mortgage executed by defendant, James Pursell, upon a leasehold interest in premises in the city of Hew York, at the south-easterly corner of Broadway and Twenty-second street.

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 a verdict (Reported below, 4 Ilun, 153.) The complaint in this action alleged, in substance, that prior to October 1, 1869, plaintiff and defendants were joint owners of a patented invention known as “Hawk’s Auxiliary Air Chamber for stoves, heaters and furnaces,” and on that day it was agreed between them that in…

The complaint in this action contained two counts; the first alleged, in substance, that, on or about June 17, 1869, defendants executed, under then- hands and seals, and delivered to Frederick W. Breed and Charles E. Young a bond in the penal sum of $10,000, conditioned for the payment of $5,000 on or before August fifteenth, then next. That said Breed and Young, for a valuable consideration, sold and assigned the said bond to plaintiff, and alleged a balance due thereon.

This action was upon an alleged contract of fire insurance. Plaintiff’s evidence was in substance that he was the owner of a hotel at Coney Island which for three years successively, prior to September 6, 1811, had been insured by defendant. Plaintiff had dealt with defendant a good many years, and he testified that he had been in the habit of getting policies without paying for them; that he never paid for a policy at the time.

<p>Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, denying a motion for a new trial made upon a case and exceptions under sectior. 268 of the Code.</p> <p>This action was brought to enforce the specific performance of an alleged paroi agreement in reference to lands. The facts appear sufficiently in the opinion.</p> <p>The agreement claimed by plaintiff was void by the statute of frauds. (2 R. S. [Edm. ed.], 139, § 6; Lathrop v. Hoyt, 7 Barb., 59; Levy v. Brush; 45 N. Y., 589 ; Sturtevant v. Sturtevant, 20 id., 39; 2 Story’s Eq. Jur., 61 § 1201; Getman v. Getman, 1 Barb. Ch., 440.)</p> <p>Equity will not allow defendant to retain the property obtained on the faith of the verbal contract without performing the same on his part. (Ryan v. Dox, 34 N. Y., 307; Church v. Kidd, 3 Hun, 254.) This was not a case within the statute of frauds. (2 R. S. [Edm. ed.], 139; 2 Story’s Eq., § 759; 34 N. Y., 311; Stoddard v. Whiting, 46 id., 627; Dodge v. Wellman, 43 How. Pr., 427.)</p>

(Eeported below, 5 Hun, 187.) The nature of the action and the facts are set forth sufficiently in the opinion. If the act of annexation did not go into operation until January 1, 1874, the election of defendant in November, 1873, was illegal and void.

(Reported below, 4 Hun, 760.) . This action was brought for the alleged negligent killing of William Sutton, plaintiff’s intestate. « The deceased was employed in the carpenter shop of the Clinton foundry, situate west and adjacent to defendant’s tracks and roadway in the city of Troy. At a point opposite this shop the employes in the foundry had for a long time been in the habit of crossing the track to reach Madison street.

This action w.as brought to recover an alleged balance of an 'account for services rendered by plaintiff as attorney and counsel for defendant.

This action was brought to compel contribution as between co-sureties. In 1854 plaintiff and one Brown were partners in business at Elmira, doing business under the firm name of “ G-. W. Brown & Co.” Brown was the managing man of the firm, which was known to defendant, he having transacted a large amount of business with the firm. In January, 1854, Brown arranged with one Cromwell for a loan of $1,000 for his individual benefit, for which he was to give a satisfactory note.

This action was for trespass, alleged to have been committed by Peter D. Bachman, defendant’s intestate, who was the original defendant, upon lands of the plaintiff, situate in the village of Niagara Falls. It was claimed by defendant that the locus m quo was a public highway, and that said Bachman, as superintendent of the village, entered thereon, cut down trees, dug up the soil, etc., for the purpose of making and grading the street, which was the trespass complained of.

This action was upon a promissory note made by one Thomas George, indorsed hy defendant and discounted by plaintiff. The note was for $500; it fell due February 17, 1874; was not paid; was duly protested, and notice served on defendant. When the note fell due, George had ten dollars and forty-three cents on deposit in the plaintiff’s bank. He deposited $500 March 2, 1874, which was credited to him; no directions were given as to the application thereof.

This action was upon a policy of life insurance issued by defendant, a foreign corporation, upon the life of Esdras Shear, husband of plaintiff’s intestate. The policy was issued in 1871; the premiums required to' be paid semi-annually, “ on or before the thirty-first day of August and February of every year.” The policy contained this clause: “ Second.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department affirming a judgment in favor of defendants, entered upon the report of a referee.</p> <p>This action was for an accounting as between copartners. The complaint set forth the following contract:</p> <p>“ It is hereby understood and agreed, by and between the undersigned, that if the undersigned, or either of them, shall make a contract with one or more towns in Washington county, TS. Y., to fill the quota of sucti^wn or towns, under an anticipated call of the government for volunteers, for a sum not less than five hundred dollars per man, that all gaJms or profits which may accrue in such business shall be divided equally, share and share alike, between the undersigned, and that all losses shall be paid equally by them. It is further understood and agreed that the undersigned, or either of them, shall make no agreement to furnish the quota of any town for a less sum than five hundred dollars per man, without the consent of all the undersigned. That if two or more towns shall be contracted with to furnish then’ respective quotas for five hundred dollars per man, or more, by the undersigned, then, and in that case, it is hereby understood and agreed that the undersigned shall furnish eighteen men, or whatever the quota of the town of Hebron may be, at the rate of four hundred dollars per man.</p> <p>June 18, 1864.</p> <p>(Signed) WM. A. RUSSELL.</p> <p>H. R. COWAH A. H. BATES.</p> <p>P. J. HARSH.”</p> <p>And alleged, in substance, that the parties thereto furnished recruits under said contract, making large profits, which were received by defendants, who refused to account, etc.</p> <p>Upon the trial, and before any other proceedings were had, the defendants’ counsel moved to dismiss the complaint, upon the ground that the same did not contain facts sufficient to constitute a cause of action. Plaintiffs’ counsel offered to prove that the contract set forth in the complaint was not made by the parties thereto with intent to prevent competition in supplying recruits, or with the intention of raising the price of recruits, but was made for the purpose of preventing the parties to the contract from binding the partnership thereby created from furnishing recruits for an insufficient and unprofitable consideration; that the towns were not confined to filling quotas by contract with other parties, but were at liberty to employ such agents as they saw fit, on such terms as they chose, or to make bargains directly with recruits themselves; that, from a period long prior to the execution of the said contract to a period considerably subsequent thereto, the price of recruits was constantly and uniformly rising; that, soon after the execution of said contract, the price of recruits ran up to an amount more than double the consideration per man therein mentioned, and that said contract did have and could have no effect in raising such price; and also to prove that a large number of men in Troy, in Rensselaer and Washington counties, as well as in other parts of the State, were engaged in the business of furnishing recruits and filling quotas, and that the parties to said contract did not, and could not, create any monopoly of that business.</p> <p>To this the defendants’ counsel objected upon the grounds, among others, that the intent and purpose of the contract was manifest upon its face; that the necessary effect of it was to prevent competition between the parties to it.</p> <p>The referee overruled the offer and sustained the objection, to which the plaintiffs’ counsel duly excepted.</p> <p>The referee granted the motion to dismiss, to which the plaintiffs’ counsel duly excepted.</p> <p>The contract was not void as being against public policy, or for any other reason. (Stanton v. Allen, 5 Den., 434; Hooker v. Van Dewater, 4 id., 349.) Whether or not the object of the contract was to raise the price of recruits was a question of fact, to be determined upon all the circumstances of the case. (Phippen v. Stickney, 3 Metc., 384.) The invalidity of the contract would be no answer to this action. (Tenant v. Elliott, 1 B. & P., 3; Farmer v. Russell, id., 296; Sharp v. Taylor, 2 Ph. Ch., 801.)</p> <p>The contract in question was against public policy, and void, and the complaint was properly dismissed. (Marsh v. Russell, 2 Lans., 340; Skeels v. Phillips, 54 111., 309; Atcheson v. Mallon, 43 N. Y., 147; Stanton v. Allen, 5 Den., 434; Wilbur v. Howe, 8 J. R., 444; Hooker v. Van Dewater, 4 Den., 349; Swan v. Chorpenning, 20 Cal., 482; Doolin v. Ward, 6 J. R., 194; Gardiner v. Morse, 25 Me., 140; Gulick v. Ward, 5 Halst., 87; Sayre v. Louisville Assn., 1 Duv. [Ky.], 143; Hoggan v. Wardlaw, 8 Bro. P. C. [Tomlin’s ed.], 281; Noyes v. Day, 14 Vt, 384; Easton v. Mawkinney, 37 Iowa, 601; Dudley v. Odorn, 5 S. C. R. [N. S.], 131; Sharp v. Wright, 35 Barb., 236; Thompson, v. Davis, 13 J. R., 115.) Plaintiffs’ offer to prove the intent of the parties to the contract, and its effect, was properly overruled. [Bettinger v. Bridenbecker, 63 Barb., 395 ; Atcheson v. Mallon, 43 N. Y., 147.) The illegality appearing on the face of plaintiffs’ case, they were properly nonsuited. (66 Barb., 539.)</p>

(Reported below, 4 Him, 637.) This action was brought to recover damages alleged to have been sustained by plaintiff by reason of the stoppage and overflow of a sewer in one of defendant’s streets, flooding plaintiffs premises.

' Appeal from judgment of the General Term of the Court •of Common Pleas for the city and county of Sew York affirming a judgment in favor of plaintiff, entered upon the report of a referee. This action was brought to foreclose a mechanic’s lien on premises in the city of New York.

(Reported below, 5 Hun, 269.) This action was brought to recover for merchandise1 alleged to have been sold by plaintiffs to defendant. The facts pertinent to the questions discussed appear sufficiently in the opinion, The authority of defendant’s agent continued as to plaintiffs until notice of revocation was brought home to them.

This action was for the alleged conversion of a quantity of sherry wines. The evidence tended to show that plaintiff, being an importer of sherry wines, in August, 1866, received an importation of 800 casks, which, upon the representation of defendants that they would probably purchase, he stored in defendants’ warehouse. In November, 1868, he reeived 100 casks more, which he also stored with defendants under the same understanding.

I ■ peal from judgment of the General Term of the Supreme Court in the fourth judicial department in favor of plaintiff, entered upon an order denying a motion for a new trial, and directing judgment on a verdict. This action was brought to recover damages for the alleged negligent killing of Nathaniel P. Blair, plaintiff’s intestate The accident causing the death of Blair occurred April 2, 1874.

(Reported below, 5 Hun, 109.) This action was brought to enforce the specific-performance of a contract between one Vincent Stephens and plaintiff for the sale and conveyance by the former to the latter of certain premises in the village of Homellsville, Steuben county.

Clinton as principal, and by the other defendants as sureties, conditioned as follows: “ The condition of this obligation is such that, whereas the above bounden De Witt W. Clinton, of Buffalo, Hew York, has been appointed as an agent of the said Western Hew York Life Insurance Company, for the purpose of procuring applications for life insurance and collecting premiums thereon; now, if the said De Witt W. Clinton shall well and truly pay or hand over to said company all…

Arpear from order of the General Term of the Supreme Court, in the fourth judicial department, setting aside a non-suit on trial at Circuit, and granting a new trial. (Reported below, 4 Hun, 386.) This action was brought to recover damages for injuries received by plaintiff from falling upon a sidewalk on State street, in the city of Auburn, which, it was alleged, was improperly constructed and was negligently suffered to remain in an unsafe condition.

The facts appear sufficiently in the opinion. The question of the allowance of time for good behavior is one for the determination of the executive and not for the courts. (Laws 1862, chap. 417, p. 748; 5 Edms. Stat., 204; Laws 1863, chap. 415, p. 708; 6 Edms. Stat., 148; Laws 1864, chap. 321, p. 763; 6 Edms. Stat., 255; Laws 1874, chap. 451, p 594, § 12.)

- 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. This action was brought to recover the sum of $500 alleged to have been paid by plaintiff, for the use and benefit of defendant, at his request.

(Reported below, 7 J. & S., 489.) This action was brought by plaintiff, as survivor of the firm of Isaac H. Smith & Son, to recover an alleged balance due that firm for goods sold. The defence was the statute of limitations.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department affirming an order of Special Term.</p> <p>The nature of the Special Term order and the facts are sufficiently stated in the opinion.</p>

This action was brought, among other things, to set aside certain conveyances of real estate made by plaintiffs’ testator to defendant, on the ground of fraud. Several of the parcels of land conveyed had been bid off by defendant npon foreclosure sale.

Miller, plaintiffs assignee, of certain judgments herein. The facts are sufficiently stated in the opinion. The conveyance from Crawford to his wife, while fraudulent as to creditors, was perfectly good inter partes. (Jackson v. Guernsey, 16 J. R., 189; Osborn v. Moser, id., 187; Hall v. Stryker, 9 Abb.

(Reported below, 5 Hun, 31.) This was an action for false imprisonment. The defence was that defendant was a justice of the peace of the town of Colchester, Delaware county, and that he caused plaintiff to be imprisoned for contempt in refusing to answer a question put to her, as a witness, in an action on trial before him, as such justice.

This action was brought by plaintiff, as judgment creditor, to vacate and set aside certain conveyances1 or deeds in trust, made by John Fellows to, defendant John Heermans, as fraudulent and void against creditors. Fellows, who was one of the original parties defendant, died after the commencement of the action and- his. personal representatives were substituted in his stead.

Appear from judgment of the General Term of the Court of Common Pleas for the city and county of Hew York affirming a judgment in favor of plaintiff, entered upon a verdict. The nature of the action and the facts are set forth sufficiently in the opinion. The statute authorizing summary proceedings for the recovery of the possession of premises does not authorize them to be instituted against corporate bodies.

. Appeal by J. B. Yirolet from an order of the General Term of the Supreme Court in the second judicial department, affirming an order of Special Term denying a motion to confirm a referee’s report.

<p>Arpead from order of the General Term of the Supreme Court, in the first judicial department, reversing an order of Special Term, vacating assessments for paving One hundred and nineteenth street from Third avenue to Avenue A, and for paving Second avenue from Eighty-sixth to One Hundred and Twenty-fifth streets, in the city of Hew York. (Reported below, 5 Hun, 442.)</p> <p>The petitioner is a religious corporation, and the lots assessed are owned and used by it for public worship.</p> <p>The application to vacate the assessment was made upon the ground that no valuation was ever put upon the property in the assessment roll by the general tax assessing officers, and that, therefore, the assessments in question were more than one-half the amount of the assessed valuation, and so void under the act chapter 326, Laws of 1840, section 7.</p> <p>No valuation having been placed upon petitioner’s land by the tax commissioners or their deputies, the assessment is void. (Laws 1840, chap. 326, § 7; Laws 1859, chap. 302, § 2; In re Palmer, 31 How., 42; Nat. Bk. of Chemung v. Elmira, 53 N. Y., 49; Turfleds Case, 19 Abb., 149; First Presb. Church v. City of Fort Wayne, 36 Ind., 338; 4 U. S. Dig., 491 [1873]; Voorhees v. Bk. of U. S., 10 Pet., 449; Prosser v. Secor, 5 Barb., 608.) Where persons are to be divested of their property by statute, the directions of the statute must be strictly followed. ( Whitney v. Thomas, 23 N. Y., 286; Westfield v. Preston, 49.id., 349; Howell v. Buffalo, 15 id., 512; Sharp v. Spier, 4 Hill, 76, 92; Palmer v. Lawrence, 6 Lans., 282; Doughty v. Hope, 3 Den., 594; Henderson v. Baltimore, 8 Md., 352:) The laws of 1872 and 1874 cannot be held to impose the assessments on petitioner’s property. (Denny v. Mattoon, 2 Al., 361; Nelson v. Rountree, 23 Wis., 367; Griffin v. Cunningham, 20 Grat., 31; Mayor, etc., v. Horn, 26 Md., 194; McDaniel v. Correll, 19 111., 226.)</p> <p>The omission of the tax commissioners to value the lots sought to be assessed furnishes no ground for vacating the assessments. (2 Laws 1872, chap. 580, § 7, p. 1416; Laws 1874, chap. 313, p. 366; In re Meyer, 50 N. Y., 504; In re VanAntwerp, 56 id., 261; Lennon v. Mayor, etc., 55 id., 361.)</p>

<p>Appeal from order of the General Term of the Supreme Court, in the third .judicial department, reversing a judgment in favor of plaintiff, entered upon a decision of the court, on trial at Special Term. (Reported below, 4 T. & 0., 385.)</p> <p>This action was brought 'by plaintiff, as executrix of the will of Bichólas Brandow, deceased, to recover moneys alleged to have been expended by the testator, as guardian for the infant children -of Lucas E. Brandow, and.in case there were no moneys to pay the same to charge the payment upon the real estate left by said Lucas. The facts, as found by the court, are, in substance, as follows:</p> <p>Lucas E. Brandow-died March 15,1859, leaving a last will and testatment, the material clause in which was as follows: “ In the second place, after my debts and funeral expenses are paid, I do hereby will, in trust, to -my wife Elizabeth, all my property, both personal and real, whatsoever and wheresoever during her lifetime; in consideration of which it shall be her duty to care, provide and educate our children until they are of age. After her death all the real estate which may be found is to be divided equally among my sons; and all my personal property which shall be found then shall .be equally divided among my daughters'.”</p> <p>He left him surviving his widow Elizabeth and eight minor children, four sons and four daughters.</p> <p>He owned a large farm, the premises described in the complaint, and considerable personal property.</p> <p>The will was admitted to probate, and Elizabeth Brandow, the widow, and said Nicholas Brandow were appointed administrators of the estate, with the will annexed. They qualified as such and entered upon the discharge of their duties. An action was brought in May, 1859, in behalf of Elizabeth, to obtain a construction of the will, and the General Term of the Supreme Court, in that action, decided that it gave her a life estate in and to the whole real and personal estate, and authorized her to use so much of the said estate, both real and personal, over and above the annual income thereof, as.may be necessary for the maintenance and education of the said children during their minority. Elizabeth took charge of the children and all the real and ■ personal estate; provided for, educated and maintained the children, and carried on the farm—using, selling and disposing of so much of the property, as was necessary for such purposes, from the death of Lucas in 1859, and executed and performed the duties imposed upon her under the trust created by the will until March 10, 1861, when she died. Upon her death Nicholas Brandow, the surviving administrator, who was the brother of Lucas and the uncle of the children, took upon himself the execution of the trust. He took possession of and carried on the farm, received its rents, issues and profits, provided and maintained all the children together upon the homestead; he paid for their clothes and schooling and expended moneys in their behalf as a family. These expenditures were made by him in good faith, and under the belief that he was the proper and legal guardian of the children, and that it was his legal duty as such, and as administrator, and under the terms of the will, to maintain, provide for and educate the children; said Nicholas thus acted for the infants from the death of Elizabeth until the 5th day of August, 1863, when he resigned his trust to Burton G. Morss, who, on that day, was appointed general guardian for the infants. All matters pertaining to the infants, their lands, personal property and maintenance, were thereupon settled by and between Nicholas Brandow and the general guardian, and all property in his hands was turned over to the latter, excepting that the claims above stated were left unsettled, Nicholas supposing them to be proper charges in his account as administrator of the estate of Lucas, and for this reason were not presented.</p> <p>On the 28th day of September, 1867, a final accounting was had before the surrogate in the estate of Lucas E. Brandow, deceased. The account rendered at that time by Nicholas Brandow, as administrator, contained the items of expenditure above specified; the general guardian Horss objected to these items, on the ground they were not proper items to be included in the said account; that they were charges against the heirs and not the estate. Thereupon said items of expenditures were taken out and a decree was entered closing up and settling said estate, exclusive of the said items ; and Morss agreed, in consideration of the withdrawal of said claims, that he would pay to Nicholas the amount so expended by him out of any funds or property in his hands belonging to the said infants. The personal property belonging to the estate of Lucas was all exhausted in the course of administration, and there was no personal property in the hands of the general guardian, or otherwise, belonging to said infants from which to pay the plaintiff’s claim.</p> <p>As conclusion of law the court found that plaintiff was entitled to judgment as asked in the complaint.</p> <p>The title to the real estate vested in the testator’s sons, subject to the life estate of the widow, and the execution of the special power in trust in favor of all the infants. (1 Edms. Stat., 684, § 95; Sterreche v. Dickinson, 9 Barb., 516; 4 Kent, 313, 319; 4 East, 441; 3 Bur., 1446; 11 J. R., 171; 3 Sandf., 555; Smith v. Bow m, 35 N. Y., 83; Adams’ Eq. [6th ed.], 105; 1 Spence Orig. Jur., chap. 81.) The power in trust survived the widow, .and 'the court will execute it. (Dominick v. Sayre, 3 Sandf., 555; 2 J. Ch., 1; 5 Barb., 190 ; 14 J. R., 537; Wil. Eq. Jur., 84; 1 Edm. Stat., 684, 685, § 100.) The infants are entitled to the whole estate for their, support and maintenance during minority. (4 N. Y. S. C., 387.)</p> <p>The trust, as to the support and maintenance of the children, continued only until the death of ■ the widow. (3 R. S. [5th ed.], 157, .§ 22; id., 22, § 87; id., 2, § 5; Hawley v. James, 16 Wend., 61; Gott v. Cook, 7 Paige, 521; 24 Wend., 644; Post v. Hover, 30 Barb., 312; Scott v. Monell, 5 N. Y. Sur. R., 431.)</p>

<p>Under the general railroad act the question as to the necessity of the appropriation of lands for the use of a railroad corporation is a judicial one for the court to determine; and when controverted the facts must, in some form, be presented to the court to enable it to decide.</p> <p>Where a railroad corporation makes application to acquire land in addition to that which it is entitled to take for its roadway, and objections are made by the owner, coupled with a denial of the special allegations of the petition respecting the purposes for which the land is required, the burden is upon the petitioner of adducing proof of the special circumstances alleged in support of the averment that it requires the land.</p> <p>The provision of the general railroad act (§ 15, chap. 140, Laws of 1850, as amended by § 2, chap. 282, Laws of 1854), authorizing the land owner to disprove the allegations of the petition was intended to enable him to introduce proof upon his part to meet that offered by the petitioner, and to disprove allegations of the petition capable of being disproved; as to the special circumstances lying within the knowledge of the petitioner it is put to its proofs, if the owner show sufficient cause against the petition.</p>

There were two appeals in tliis matter. The one from an order of the General Term of the Supreme Court in the fourth judicial department affirming an order of Special Term appointing commissioners on the petition of the Board of Water Commissioners of the city of Rochester to appraise the damages of the Rochester Water Company. The other, an appeal from an order of said General Term affirming an order of Special Term conforming the report of commissioners so appointed.

This action was brought against defendants, all of whom were stockholders and a portion trustees of the Utica Steam Woolen Company, to recover the amount of a promissory note executed by one Peter Clogher as agent of said company and in its name, it being alleged and claimed, in substance, that after the expiration of the company charter its trustees continued the business with the knowledge of the stockholders, and that they were liable as copartners.

<p>In an action by an indorser of a promissory note, wbo has paid the same, against a prior indorser, it is competent for defendant to prove by paroi that all the indorsers were accommodation indorsers, and by agreement they were, as between themselves, co-sureties.</p> <p>In such an action it appeared that the holder of the note sued the note and collected it of the subsequent indorser, at the request of, and under an arrangement with, the prior indorser, who thereupon gave security. Held, that this did not estop the latter from setting up the agreement between the indorsers.</p> <p>Evidence was given tending to show that the agreement was made in reference to a prior note which had been renewed from time to time until the note in question was given. The court charged, in substance, that if this was so, and if the last note was signed with the arrangement resting upon the minds of the indorsers, the jury would have no doubt in coming to the conclusion that the agreement attached to the last note. Held, no error.</p> <p>There were four indorsers, between whom the agreement was made. Two were not parties. It was proved that they were insolvent, and plaintiff recovered judgment for half the note. Held (Church, Ch. J., dissenting), that the action being one of law against one of the co-sureties, plaintiff was only entitled to recover defendant’s proportion, to wit: one-fourth . of the debt; that in order to make defendant liable for the one-half , because of the insolvency of the others, an action in equity against all should have been brought; also, that the pleadings could not be changed to conform to the facts, as the proper parties were not before the court.</p>

<p>An1 accidental inSurance’policy contained a clause providing that no claim should be made thereunder “where the death or injury may have happened while the insured was, or in consequence of his having been, under the influence of intoxicating drink.” The insured was killed by a pistol shot. In an action upon the policy, held, that if the death of the insured occurred while h'e was under the influence of intoxicating drink, this alone- avoided the policy without regard to the question-whether that condition was the natural and- reasonable cause of the’ death, or in any manner contributed thereto; and, also, that such a provision was proper and" reasonable.</p> <p>Bradley v. Mutual Benefit life Insurance Company (45 H. Y., 422) and Welts v. Connecticut Mutual Life Insurance Company (48 id., 34) distinguished.</p>

<p>Where a lender has received a security providing for the payment of the precise amount loaned by him with lawful interest, the fact that his agent, without his authority, knowledge or participation, has extorted from the borrower a sum of money upon the false pretence that a portion thereof was a bonus for his principal does not taint the security with usury. The employment of an agent to effect a loan does not impliedly or apparently authorize him to violate law or do an illegal act.</p> <p>The fact that an action upon the security is commenced by the principal after knowledge upon his part of the exaction of the agent is not a ratification thereof; the security coming to him unaffected by usury, he has the right to enforce it.</p> <p>After payment of a portion of the amount due upon a bond secured by mortgage, the obligors applied to the agent of the obligees for a reloan of the sum paid upon the same securities. This the obligees agreed to. The agent exacted of the obligors §225 professedly for the obligees, who did not receive any portion of it and knew nothing of the representation. One of the obligees was informed by the obligors before the loan of the terms their agent exacted, to which he replied that it was too much for the agent’s services. The obligees loaned the full amount, and it did not appear that they knew how much was finally paid or agreed to be paid to the agent. Meld, that the evidence rebutted any inference that the obligees connived at, consented to, or authorized the charge, and that, therefore, there was no usury.</p> <p>Algor v. Gardner (54 N. Y., 360) distinguished.</p> <p>Msterez v. Purdy (6 Hun, 46) reversed.</p>

Appeals from orders of the General Term of the Supreme Court in the third judicial department, affirming orders of Special Term referring said actions. The actions were not referable without consent of parties. By consent of the attorneys of the respective parties an order was entered referring them to a referee named. After a partial hearing was had, the referee refused to act further.

(Reported below, 4 Hun, 683.) This action was brought to recover damages for injuries alleged to have been received in being forcibly ejected from | one of defendant’s cars by the conductor of the train. The defence was that plaintiff was ejected for non-payment of fare. Plaintiff took passage on one of defendant’s trains at Binghamton for Port Crane, and his evidence tended to show that he paid his fare.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order affirming an order of Special Term sustaining a demurrer to plaintiff’s complaint. (Beported below, 5 Hun, 301.)</p> <p>The complaint in this action alleged, in substance, that in August, 1871, letters patent were duly issued to Bichard N. Watrous and W. W. Kellogg for an alleged new and useful improvement in the construction of dies for forming the lips of auger and auger bits; that in September, 1871, said Kellogg duly assigned his interest in such letters patent to one George Worrall, who owned the same until in October, 1874, when he assigned all his interest therein to the plaintiff herein; that at or about the time of the granting of said letters patent said Watrous made and had some arrangement and agreement with the defendants whereby they were, so far as the said Watrous was and is concerned, to have the right to use said improvement in the manufacture of augers, and that the defendants have used the same in their business since about the time of the transfer by Kellogg to Worrall, and still continued to use the same and have derived benefits from the use of the same; that said arrangement and agreement between said Watrons and the defendants had reference only to the rights and interests of said Watrons; that before the commencement of this action the plaintiff requested the defendants to account to him for the use of said improvement, and pay over whatever sum was due to the plaintiff by reason of the use thereof as aforesaid, “ as tenant in common of said improvement and letters,” which the defendants refused to do, and as relief asks that the defendants pay to the plaintiff one-half of the value of the use of such improvement and for an accounting.</p> <p>The defendant demurred upon two grounds: First. That the complaint did not state facts sufficient to constitute a cause of action. Second. That the court had no jurisdiction of the subject of the action.</p> <p>The rule that one tenant in common cannot sue his co-tenant for the sole use of the common property in the absence of some agreement does not apply and cannot be invoked by defendant. (14 Mass., 149; 18 Barb., 265.) The rule that one tenant in common of land using the whole is not liable to his co-tenants for the rents and profits received does not apply to patented rights owned by different parties. (Sargent v. Parsons, 12 Mass., 153; Pitts v. Hall, 3 Blatch., 201-206; Mathers v. Green, 34 Beav., 170.)</p> <p>Plaintiff and defendant were not partners in the ownership of the letters patent or in any of the rights secured thereby. (Curtis on Patents [4th ed.j, 209, 210; Parkhurst v. Kinsman, 2 Blatch., 72; Clum v. Brewer, 2 Curt. O. B., 506, 524.) One tenant in common of real estate cannot be called to account for benefits derived from' the use of the common property if he has not excluded his co-tenant therefrom. ( Woolever v. Knapp, 18 Barb., 265; Dresser v. Dresser, 40 id., 300; Wilcox v. Wilcox, 48 id., 327; Story on Part., § 89.) This rule applies to patents. (Curtis on Patents [4th ed.], 210, 214.) This action can only be maintained in a United States court. (Dudley v. Mayhew, 3 N. Y., 9; Hovey v. Rub. Tip Pencil Co., 57 id., 119; U. S. R. S., § 711, p. 135.)</p>

This action was upon a policy of fire insurance issued by defendant to plaintiff, insuring him, as stated in the policy,. “ on his two-story and extension frame shingle-roof building, occupied as dwelling, situate,” etc. “It is a part of this contract that any person other than the assured who may have procured this insurance to he taken by this company shall be deemed to be the agent of the assured named in this policy, and not of this company, under any circumstances…

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department affirming a judgment in favor of plaintiffs, entered upon a decision, of the court at Special Term.</p> <p>This action was brought to obtain a construction of two wills, one that of Albert Banta, the other that of Charles Edward Banta, son of said Albert Banta. The plaintiffs are the general legatees under the will of said Charles Edward Banta. Defendant George Hubbell is executor of the said will, and also administrator, with the will annexed, of Albert Banta. Defendant Stanley A. Banta is the son of Albert Banta.</p> <p>The court found the following facts, in substance:</p> <p>That Albert Banta died prior to the 10th day of February, 1864, possessed of a large quantity of real estate, part of which was situated in this State and part in the State of Iowa, and of sufficient personal property to satisfy the legacies bequeathed to his sons and to furnish the annuity provided for the widow, as hereafter stated; that said Albert Banta left Mm surviving two sons, Charles Edward and Stanley Adelbert, and a widow, Sarah A., who constituted his only heirs and next of kin; that he left a last will and testament, bearing date February 3, 1858, and a codicil thereto, bearing date August 20, 1862, which were duly admitted to probate by the surrogate of Ontario county, and letters testamentary were duly issued to said widow, Sarah A. Banta, who accepted said trust and continued to act as such executrix till her death.</p> <p>The will gives legacies of $1,000 each to the two sons, and provides for their support and the support of their mother, during their minority, “out of the rents, issues and profits” of the estate. It also gives to the widow the use of the homestead and furniture for Efe, and an annuity of $500 a year after the sons reach twenty-one, during her Efe, in Eeu of dower. An investment is directed sufficient to produce such annuity.</p> <p>The sixth clause of the will is as follows:</p> <p>“ Sixth. After my youngest child shall arrive at the age of twenty-three years, I direct my executors to divide my real estate equally between said sons, Charles Edward and Stanley Adelbert.”</p> <p>The seventh item gives, subject to the foregoing bequests: to his two sons, share and share alike, aH his personal property, to be divided on his youngest one arriving at the age of twenty-tM-ee, except the investment for the benefit of the widow, wMch was not to be divided until after her decease.</p> <p>The codicil simply contained a direction requiring his executrix to sell and dispose of all his real estate.</p> <p>That said executrix, by virtue of said will and codicil, disposed of the real estate situated in the State of Iowa, for cash, and on the 2d day of October, 1867, and on the 13th day of December, 1862, had two distinct accountings before said surrogate, who upon each of such accountings duly decreed that the money then in such executrix’s hands should be distributed as so much money in her hands as executrix; that the sum of $8,000 was set apart and invested in United States bonds, by said executrix, to raise the annuity of $500 for the use of said widow, as in said will directed, and that the same was kept so invested, and remained in the hands of said executrix, together with the accumulations thereon over and above said annuity, up to the time of her death; that on the 8th day of October, 1870, said executrix died, and on the fifteenth day of same month the defendant, George Hubbell, was duly appointed administrator de Txmis non with the will annexed, of the estate of Albert Banta, deceased; that he accepted such trust, and still continues such administrator; that, at the time said defendant was so appointed he came into the possession of all the personal estate of said Albert Banta, then remaining undisposed of, together with the $8,000 in the form of bonds, and its accumulation as aforesaid.</p> <p>That after the death of said Albert Banta, and in the month of September, 1864, Charles Edward, one of the said sons of Albert Banta, died, unmarried, leaving the defendant Stanley Adelbert his sole heir and next of kin; that at the time of such death said Charles Edward was over the age of twenty-three years.</p> <p>That he left his last will and testament, bearing date September 10, 1864, which was duly admitted to probate and letters testamentary thereunder were on that day duly issued to the defendant George Hubhell, as executor, who accepted such trust, and still remains such executor. In and by said will said Charles Edward gave legacies to the plaintiffs amounting to $18,000, and gave all the rest and residue of his property to his brother, Stanley Adelbert Banta.</p> <p>That said Charles Edward, at his death, was possessed of no property except what he derived from the estate of his father, said Albert Banta, and that he had only received from such estate $1,000, of which sum but a few dollars remained at his decease; that the defendant George Hubbell, as executor, has paid to plaintiffs on account of their said legacies, in proportion to their respective legacies, the sum of $13,781.01, leaving the balance of said legacies unpaid.</p> <p>That all the real estate remaining undisposed of at the death of Sarah H. Banta, executrix, was vested in the defendant Stanley A. Banta, and that at that time he entered into possession thereof, and has continued to enjoy the same ever since.</p> <p>That said defendant George HubbeE, as administrator de bonis non, on the 27th day of March, 1871, had, upon his own application, a final accounting before said surrogate; that said surrogate decreed, that of the assets then in the hands of said administrator, one-half thereof should be paid to the defendant Stanley A. Banta, and the remaining one-half to the defendant George HubbeE, as trustee of the estate of Charles Edward Banta, to be held by him for the sole benefit of the defendant Stanley A. Banta.</p> <p>That the only parties cited to appear on that accounting were defendant George HubbeE, as executor of Charles Edward Banta, deceased, and defendant Stanley A. Banta ; that the plaintiffs were not in any manner represented on such accounting; that the defendant HubbeE, as executor of said Charles Edward, refused to appeal from said decree, and refused to aBow plaintiffs, or either of them, to appeal in his name, although they offered to indemnify him fuBy against all costs and liabifities; that defendant HubbeE, as executor of said Charles Edward Banta, has refused and still refuses to pay these plaintiffs, or either of them, any sum whatever towards the satisfaction of their said legacies, since the accounting and decree aforesaid.</p> <p>As conclusions of law, the court found, that upon the death of Albert Banta, his estate, both real and personal, vested in his sons in equal parts, subject to the charges and provisions made in favor of the widow; that by the terms of the wiE of Charles Edward Banta, the plaintiffs were entitled to the payment of their legacies, together with interest, to be computed after one year from the death of testator; that said legacies, by the terms of said wiE, were made a charge and lien upon any estate, real or personal, vested in said testator at the time of his death.</p> <p>That the decretal order made by the surrogate, on the 27th day of March, 1871, was in no wise valid and binding on plaintiffs ; and it appointed a referee to investigate the accounts of Hubbell, as administrator of Albert Banta and as executor of Charles Edward Banta, and directed the defendants to pay over to the referee any and all assets of the two estates in their possession, save that defendant Stanley A. Banta was authorized to retain one-half the residuary estate of Albert Banta, and that the referee, from the assets received by him belonging to the estate of Charles Edward Banta, satisfy plaintiff’s legacies.</p> <p>The General Term, upon appeal, affirmed the decision and findings, save so much thereof as authorized the referee to act as receiver, and in lieu thereof authorized plaintiff, if defendant refused to comply with the decree as to an accounting, or if, after accounting before the referee, he refuse to provide for the payment of plaintiff’s legacies to apply for the appointment of a receiver. An accounting was had before the referee, who found that there was in the hands of Hubbell, as administrator de boms non of Albert Banta, $9,134.58; of which the sum of $4,938.34 belonged to the estate of Charles Edward Banta; also, that there were portions of Albert Banta’s real estate unsold. This report was confirmed and judgment was entered directing Hubbell to pay to plaintiffs the moneys so in his hands belonging to Charles Edward Banta’s estate, less certain specified deductions, and appointing a referee to sell the real estate in this State, etc.</p> <p>There was, by the will of Albert Banta, no equitable conversion of his real estate into money. (Kinner v. Rogers, 42 N. Y., 531—535; Post v. Rover, 33 id., 593, 599; 1 Jarman on Wills, 465; Lynes v. Townsend, 33 Mass., 593, 599; Reynolds v. Reynolds, 16 id., 257; 1 Wms. on Exrs., 554, 555 ; 2 Spence on Eq. Jur., 261; Bogert v. Hertell, 4 Hill, 492; Smith v. Claxton, 4 Mad., 484; Harris v. Clark, 7 N. Y., 242, 260; White v. Howard, 46 id., 144, 162; Wright v. Trustees, 1 Hoff., 203, 218; Randall v. Bookey, Prec. in Ch., 162; Emblyn v. Freeman, id., 541; Hawley v. James, 5 Paige, 318, 344; 7 id., 213, 219; L. & D. on Eq. Conv., 93, 116; Ackvoys v. Smithson, 1 Br. C. C., 503; Curse v. Barley, 2 P. Wins., 22; 1 Roper on Legacies, 530; Jackson v. Janson, 6 J. R., 651, 660; Wood v. Keyes, 8 Paige, 365; O’Hara on Wills, 157; 2 Keen, 653; In re Fox, 52 N. Y., 530; Hoppock v. Tucker, 59 id., 208; Smith v. Claxton, 4 Mad., 484; Ross v. Roberts, 4 H. Y. Supr. C., 318.) The decree of the surrogate of March 27, 1871, was valid and effective to conclude any person interested in the estate of Charles Edward Banta. (Dyckman v. Mayor, etc., 5 N. Y., 443; Sheldon v. Wright, id., 497, 514; Vonrhees v. Bk. of U. S., 10 Pet., 449; B. Svg. Bk. v. Fldridge, 28 Conn., 556 ; Bailey v. Ryder, 10 N. Y., 363, 370; Schooner Hoppett v. U. S., 7 Cranch, 389; Harrison v. Nixon, 9 Pet., 503; Galand v. Davis, 4 How. [U. S.], 148; Thomas v. Austin, 4 Barb., 265, 273; N. Y. C. Ins. Co. v. Nat. Pro. Ins. Co., 20 id., 468, 473; 2 R. S., 97, § 66; Graham v. Dewitt, 3 Brad., 192; Fisher v. Hepburn, 48 N. Y., 41; Mead v. Mitchell, 17 id., 210; Cole v. Reynolds, 18 id., 74, 77; Bk. of Poughkeepsie v. Hasbrouck, 6 id., 216; Wright v. Trustees, 1 Hoff. Ch., 202; Smith v. Lawrence, 11 Paige, 206; McGregor v. McGregor, 35 N. Y., 208.) It was error to hold that the legacies given to plaintiffs under the will of Charles Edward were made a charge and lien upon the real estate vested in said testator at the time of 'his death. (Dupton v. Lupton, 2 J. Ch., 614, 623; Reynolds v. Reynolds, 16 N. Y., 257; Kinnier v. Rogers, 42 id., 531; Lynes v. Townsend, 33 id., 562; Simpson v. English, 4 T. & C., 80; Goddard v. Pomeroy, 36 Barb., 546; Castle v. Gillett, L. R., 16 Eq., 530, 544; Lewis v. Darling, 16 How. [U. S.], 1; Tracy v. Tracy, 15 Barb., 503; R. C. Ger. Ch. v. Watcher, 42 id., 43; Shutters v. John, 38 id., 80; Myers v. Eddy, 35 id., 203; Hill on Trustees, 360.)</p> <p>The vesting of the estate in Charles Edward and Stanley was not postponed beyond the death of their father. (Hoppock v. Tucker, 59 N. Y., 202.) They took vested interests in moieties as of the testator’s death in all lands of which he died seized, not liable to be defeated by any subsequent condition of survivorship of either before arriving at the given age, and without any limitation whatever. (Crosby v. Wendell, 6 Paige, 543-548; Stagy v. Jackson, 1 N. Y., 206; 41 id., 289; 2 Edw. Ch., 156-159; Livingston v. Green, 6 Lans., 50-55; 52 N. Y., 122.) The death of one of the sons prior to the other cannot be construed as divesting the estate. (Johnson v. Valentine, 4 Sandf., 37; Stagg v. Jackson, 1 N. Y., 206 ; Converse v. Kellogg, 7 Barb., 590; Doe v. Peruyn, 3 T. R., 484; Rose v. Hill, 3 Bun, 381.) The intention to charge the real estate with the payment of the legacies is declared in the will and codicil. (R. C. Ch. v. Watcher, 42 Barb., 43; Shutters v. Johnson, 38 id., 80; Taylor v. Dodd, 58 N. Y., 335; 1 Tucker, 32; 2 Sandf. Ch., 131; 1 id., 132; Hays v. Gourley, 3 T. & C., 115.) A devise, grant or conveyance of the “ use and income ” carries the land and personal estate itself. (Craig v. Craig, 3 Barbour’s Ch.; 2 Jarman on Wills [2d ed.], 376, 420; Reed v. Reed, 9 Mass., 372; Fom v. Phelps, 17 Wend., 393; Rhodes v. Rhodes, 3 Sandf. Ch., 279; 5 id., 467; 7 Hill, 305 ; 3 Bradf., 144, 231, 287; Scott v. Guernsey, 48 N. Y., 106.) The estate which vested in Charles E., September 10, 1864, was both devisable and assignable. (1 Redf. on Wills, chap. 9, § 30, p. 388 [ed. 1854] ; Powell on Devises [1st Am. ed.], 314; Jarman on Wills, 764, 771; Wood v. Cone, 7 Paige, 472; Coster v. Lorillard, 14 Wend., 321, 350, 382; Kane v. Gott, 24 id., 641, 660 ; 13 Alb. L. J., 198, 199.) The doctrine of equitable conversion is applicable under the will of Albert Banta. (L. & D. on Eq. Conv., 8; 1 Jarman on Wills [3d ed.], 550; Bogart v. Hartell, 4 Hdlj 492; Johnson v. Bennett, 39 Barb., 237-251; Dodge v. Pond, 23 B. Y., 69; Chamberlain v. Chamberlain, 43 id., 424; Stagg v. Jackson, 1 id., 206.)</p>

<p>Defendant sold and assigned to plaintiff a legacy. In an action to recover damages, upon allegations that the purchase was induced by fraudulent ■representations, it appeared that defendant represented, in substance, that the legacy was ás good as a mortgage upon any man’s farm,</p> <p>, and that plaintiff might inquire. Plaintiff did inquire of persons to whom he was referred by defendant, who stated the legacy to be good. Its value depended upon the question whether it was charge able upon the testator’s real estate. The personal estate was insufficient, but both real and personal more than sufficient to pay it. An attorney, at the request of the parties, examined the will and gave his opinion that the legacy was good. In an action subsequently brought to obtain a construction of the will it was adjudged that the legacy was not a charge on the real estate. The court was requested to charge, in. substance, that what was said by defendant was under the circumstances but an expression of opinion. The court refused so to charge, and submitted, that question to the jury. Held, error; that defendant made no -false statements of facts, and what he said could have been only an-expression of opinion.</p> <p>It appeared that defendant had been informed, prior to the sale, by one of "the executors that an action for a construction of the will was about to" be commenced, and that he did not disclose this to plaintiff. Held (Folger, and Earl, JJ., dissenting), that the judgment could not be sustained on the ground of a fraudulent concealment, although the action might have been maintained thereon, as this did not remedy the error in the refusal to charge, under which the jury may have held the representations made were fraudulent, and so have determined the case.</p>

This action was brought by plaintiff as mortgagee, and claiming under a mortgage upon real estate against defendants, who are judgment creditors of the mortgagor, and the sheriff holding executions, issued on their judgments, to restrain them from selling on said executions certain machinery advertised to be sold as personal property, which plaintiff claimed to be part of the realty.

(Eeported below, 7 J. & 6., 331.) This action was upon a policy of marine insurance. The terms of the policy and the facts appear sufficiently in the opinion. The putting into Sidney of the vessel was not such a deviation from the voyage as avoided the policy. (Pelly v. Ex. Ins. Co., 1 Burr, 341, 351; Smith’s Mer. Law [1st Am. ed.], 363; Reade v. Comm. Ins. Co., 3 J. R., 358 ; Stevens v. Comm. M. Ins. Co., 26 N. Y., 403; Noble v. Kennoway, 1 Dougl., 510; Wadsworth v. Pac.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of plaintiff entered upon a verdict.</p> <p>This action was brought for an alleged conversion by defendant of 500 shares of the stock of the Chicago and Alton Railroad Company.</p> <p>Plaintiff, through one U. F. Rogers, who acted as his agent, employed the defendants, who were doing business as stock brokers in the city of New Tork, under the firm name of Drake Brothers, to make speculative purchases of stocks for him, upon a margin.</p> <p>Rogers had been, previously operating in stocks, the defendants acting as his brokers. A written agreement had been made between them. The evidence was conflicting as to whether this agreement had been abandoned, and as to whether it was extended and applied to plaintiffs transactions. Plaintiff gave to Rogers the following letter of instructions, which Rogers delivered to defendants :</p> <p>“Mew York, April 16, 1868.</p> <p>“ Messrs. Drake Brothers :</p> <p>“ G-ehtl’m.—You are hereby authorized to negotiate for my acct. such transactions in stocks and other securities as Mr. U. F. Rogers may think best to direct.</p> <p>“ All transactions under his directions be duly knowledged and confirmed, and in every way subject to the usages of your office.</p> <p>. “Yours truly.</p> <p>“WM. M. BAKER.”</p> <p>Prior to this defendants had bought on plaintiff’s account 500 shares of the Chicago and Alton Railroad stock. The stock having declined and plaintiff having failed to furnish additional margin, defendants sold the stock at a loss, in Movember, 1868, at the stock exchange, without giving plaintiff any notice of the time or place of sale.</p> <p>Upon the trial of the action defendants’ counsel asked one of the defendants, who was being examined as a witness, the following question: “In the year 1868, from the first of January to the first of December, had you a custom in your office in reference to the manner in which sales were made of stocks which you had purcliashed for your customers when the margin was insufficient in cases of sales on account of an insufficient margin.” ■ This was objected to, and objection sustained.</p> <p>Said counsel then offered to prove by the witness “that in 1868, from the first of January to the first of December, there was a custom in their mode of doing business in cases of the sales of stocks of customers purchased under circumstances similar to this stock for Mr. Baker, when a sale was made on account of the margin being insufficient on account of a failure to furnish sufficient margin, and that by that custom the stock was sold at. the stock exchange in the city of New York, and no notice was given to the customer of the time or place of the sale.” This was objected to. Objection sustained, and defendants’ counsel duly excepted.</p> <p>The court charged the jury as follows :■ “If you find that the contract was as .claimed by the plaintiff, and this sale was made without notice, you will assess the damages upon the following principles: The plaintiff is entitled to recover, as I damages, what it would have cost to replace the stock, that is, I the price of the stock, on a day within a reasonable time after the wrongful sale, to replace the stock after deducting what was due to the defendants in the. dealing between the parties.” To which defendants’ counsel duly' excepted.</p> <p>The ruling of the judge excluding evidence of the general usage between brokers and their customers, was erroneous.' (2 Greenl. Ev. [Redf. ed ], 224; 1 Smith’s L. Cas. [6th Am. ed.], 835 ; Mollett v. Robinson, L. R., 5 C. P., 646; 7 id., 84; Horton v. Morgan, 19 N. Y., 170; 41 id., 244; Allen v. Dykers, 3 Hill, 597; Sutton v. Latham, 10 Ad. & El., 27; Bayliffe v. Butterworth, 1 Exch., 425; Pollock v. Stables, 12 Q. B., 765; Grissell v. Bristowe, L. R., 4 C. P., 36; Coles v. Bristowe, L. R., 4 Ch. App., 3; Maxted v. Paine, L. R., 6 Exch., 132; Duncan v. Hall, id., 255; Fleet v. Murton, L. R.,7 Q. B., 126.) Defendants were not bound to give notice of the time and place of sale. (Marine Nat. Bk. v. Nat. City Bk., 59 N. Y., 67, 72.) Plaintiff having failed to disaffirm the sale until this action was commenced, must be deemed to have ratified it, and cannot maintain this action. (Hanks v. Drake, 49 Barb., 186; Hope v. Lawrence, 50 id., 258; Law v. Cross, 1 Black, 539; Foster v. Rockwell, 104 Mass., 172; Coucier v. Ritter, 4 Wash., 553; Smith v. Cologan, 2 T. R., 188, n.; Towle v. Stevenson, 1 J. Cas., 110; Cairnes v. Bleecker, 2 J. R., 301; Baker v. Drake, 53 N. Y., 211, 217.)</p> <p>The exception to the exclusion of evidence of usage in Wall street, or custom among brokers, was not well taken. (Bower v. Newell, 4 Seld., 190; Dykers v. Allen, 7 Hill, 497; Merchant's Bank v. Woodruff, 6 Hill, 174; Wheeler v. Newbould, 16 N. Y., 392; Higgins v. Morse, 34 id., 417; Berrine v. Lord, 1 Seld., 95; Thompson v. Biggs, 5 Wal., 663.) Plaintiffs stipulation acknowledging all transactions under ¡Roger’s directions to be subject to the usages of “ defendants’ office,” did not apply to the unauthorized sale, and the evidence offered as to it was not admissible. (Markham v. Jaudon, 41 N. Y., 235.) The stocks purchased by defendants for plaintiff were his property. (Andrews v. Clark, 3 Bosw., 585; Mallory v. Willis, 4 N. Y., 76; Pollen v. Leroy, 30 id., 549; Mallory v. Lord, 29 Barb., 455; Merwin v. Hamilton, 2 Duer, 244.) Defendants held the stock as security for the advance made by them. (Ashton v. Greene, 3 Campb., 426;Oakley v. Oakley, 16 Q. B., 941; Griffith v. Perry, 1 E. & E., 680; Blackburn on Sales, 325; Benjamin on Sales, 594) Defendants were pledgees, and had no right to sell it. (Story on Bailments, §§ 7, 297; Stearns v. Marsh, 4 Den., 227; Wilson v. Little, 2 N. Y., 443; 16 id., 396; Story’s Eq. Jur., § 1008; 2 Kent’s Com., 582.) Ho right to sell it without notice was conferred on defendants by their agreement with plaintiff. (Russell on Factors, 212; Marfield v. Goodhue, 3 N. Y., 62; Gihon v. Stanton, 5 Seld., 476.)</p>

<p>Although, in an action for malicious prosecution it appears that the apparent facts were such that a discreet and prudent person might have been led to a belief that plaintiff was guilty of the crime for which he was prosecuted by defendant, yet if it appear that the latter had knowledge of facts which would explain the suspicious appearances, and exonerate plaintiff, he cannot justify the prosecution by putting forth the prima fade circumstances, and excluding those thus within his knowledge tending to prove innocence.</p> <p>Plaintiff had been for many years confidential managing clerk for defendant, having charge of the money drawer, and control and supervision over the employes, including the cashier. Upon examining his account it appeared that some items charged to him upon a petty cash-book, kept by the cashier, had not been transferred to the cash-book kept by plaintiff, and a larger number of charges upon the latter book had not been transferred to the ledger. There was also an erasure and some false additions in favor of plaintiff. Defendant caused plaintiff’s arrest for embezzlement. In an action for malicious prosecution, the evidence tended to show that plaintiff admitted the correctness of the account as made up by the examiner and settled with defendant by conveying to him certain real estate, the.latter giving a general release. Plaintiff testified that he kept a private memorandum-book which explained the apparent discrepancies, in showing sums of money loaned by him from time to time to defendant, which he deducted from the sums charged to him, and carried the balance only into the ledger account; that this account for loans was adjusted once a year; that when defendant spoke to him of the discrepancies, he produced the memorandum-book, which defendant examined, and requested permission to take: this was granted, but defendant afterward refused to produce it, and denied all knowledge of it; that he settled with plaintiff through fear of prosecution, believing the latter had suppressed his only evidence. All this was contradicted by the defendant. Held, that upon the facts unexplained by plaintiff’s testimony, there was no want of probable cause, yet his testimony, if true, tended strongly to show bad faith on the part of defendant, and justified a finding of malicious prosecution; and that the question as to its credibility was one of fact for the jury.</p> <p>The court charged in substance that if defendant, prior to making complaint against plaintiff, settled for the moneys claimed to have been embezzled as for moneys had and received, this would be evidence that he did not believe plaintiff had embezzled the moneys. Held error; that if money was embezzled, defendant had a right to settle as for a debt upon an implied contract, and such settlement was no bar to a criminal prosecution; nor did it furnish evidence that defendant did not believe the money had been embezzled.</p> <p>It was urged, in answer to the exception to the charge, that the moneys received by plaintiff were not intrusted to him as agent, but were received from the cashier. Eeld, first, that money paid by the cashier to plaintiff by his direction was the same as if taken by himself from the drawer or safe, as he had charge of all the money; second, that the charge did not embrace this point.</p> <p>Fagrum v. Knox (8 J. & S., 41) reversed.</p>

(Deported below, é Hun, 278.) This action was brought to recover an amount alleged to be due as royalty upon the manufacture and sale of a patented article under a license and agreement between the parties.

This action was brought to recover the sum of $400, gold, alleged to have been had and received by defendant, belonging to plaintiffs. The facts appear sufficiently in the opinion. To justify a recovery against the captain, plaintiffs would have had to prove that he was their agent, and received the $400 for them. (Stevens v. Com. Mut. Ins. Co., 26 N. Y., 397; Fernandez v. Gt. W. Ins.

This action was brought to foreclose a mortgage executed by defendants, Elenor Kashaw and her husband, to the Mutual Protection Life Insurance Company, plaintiff’s assignor, to secure a bond given for a loan of $7,000. The facts appear in the opinion. To constitute usury there must be a corrupt intent, and a receiving of more than legal interest by the lender.

(Reported bélow, 5 Hun, 16.) This action was brought to have a trust declared in plaintiff’s favor in certain premises purchased by defendants. In 1862, Parkhurst Whitney, of Miagara, Miagara county, died, leaving a will, by the thirteenth clause of which he bequeathed to his grandchildren, Olympia, Helen and the plaintiff, $4,000 each, to be paid in the manner and from the fund thereinafter provided.

Appear from judgment of the General Term of the Supreme Court in the third judicial department in favor of plaintiff, entered upon an order denying á motion for a new ¿rial and directing judgment on a verdict. (Memorandum of decision below, 4 Hun, 802.) This action was brought to recover damages sustained in the purchase of certain stock by plaintiff of defendants, which purchase was alleged to have been induced by fraudulent representations on the part of defendants.

<p>The question whether the use for which private property is sought to be taken, under and by the exercise of the right of eminent domain, is public or private, is a judicial one, to be determined by the courts; the grant by the legislature of the right to take, is not conclusive evidence that the use is a public one.</p> <p>The use of lands for the purposes of rural cemetery associations, incorporated under the general law (chap. 133, Laws of 1847, as amended by chap. 280, Laws of 1852, and chap. 245, Laws of 1874), is private, not public.</p> <p>The provision, therefore, of the act of 1873 (chap. 452, Laws of 1873), authorizing the taking of lands for the purposes of such an association, by proceeding in inmtum, is unconstitutional and void.</p> <p>In re DeanmlU Gemetery Association (5 Hun, 482) reversed.</p>

This action was brought to restrain defendants from the use of wooden pipe, with a bore of an inch and five eighths, which was being used by them to take water from a spring upon plaintiff’s premises, or from using any pipe, for that purpose, with a bore greater than three-eighths of an inch.

Apt-gat, from judgment of the General Term of the Supreme Court in the fourth judicial department affirming a judgment in favor of plaintiff, entered- upon the report of a referee. This action was brought for an accounting and to recover the interest of Charles E. Case in the assets of the firm of Case, Woodin & Conger, in which firm said Case was a partner at the time of his death, and which interest plaintiff claimed to have purchased on execution sale.

(Reported below, 6 Hun, 88.) The complaint in this action alleged in substance that in March, 1872, one Alonzo Dutch entered into a contract with the “school trustees of the Tenth ward of the city of Hew York,” who were acting under the authority of the department of public instruction, by which plaintiffs agreed to do the carpenter work for a new school-house, about being erected, at a price stipulated, payable in installments.

(Deported below, 6 Hun, 92.) This action was brought to recover compensation for attendance upon the Court of Oyer and Terminer of the city and: county of Hew York. It appeared that on the 11th January* 1871, plaintiff was appointed by the sheriff of the city and county of Héw York a special deputy, as recited in the appointment, “ to assist in preserving the public peace, to attend the Court of Oyer and Terminer.” Plaintiff was not at the time either constable or marshal.

This action was brought by plaintiff, as assignee in bankruptcy of one Flanigan, to set aside a general assignment for the benefit of creditors, made by him, within six months prior to the commencement of bankruptcy proceedings, to defendant, and to compel defendant to account for the property received by him under said assignment. The facts are sufficiently stated in the opinion.

This was an action for .frapd. Defendant purchased of plaintiff a pair of horses, turning out in part payment a promissory note. Held: error; that.plaintiff was not obliged to sue the note as a condition precedent to his right to recover; the; posts .were not flle proximate result or the natural consequence of the fraud; and therefore were not a proper item of damages.

This was an appeal from an order of General Term affirming an order of the surrogate of the county of New York directing the payment to… Held: that an accounting should be had and the rights of legatees and distributees adjudged before the assets of the estate were further encroached upon; and that defendant had failed to establish a legal right to be paid the legacy in full from the fund charged; also, that as important questions of fact were put at issue, by the…

This was an action to foreclose a mechanic's lien on lands formerly owned by defendant Westervelt, but before the filing of the lien sold and conveyed to defendant Donovan.