Volume 67 — Barbour's New York Supreme Court Reports

APPEAL, by the defendants, from a judgment entered upon the report of a referee, in an action for an accounting between partners.

<p>In order to render a stockholder in a manufacturing corporation personally liable for the debts of the corporation, under sec. 24 of the act of 1848» (chap. 40,) it is not necessary for a creditor to show a judgment recovered against the corporation, and an execution returned unsatisfied in whole or in part.</p> <p>The clause of that section which requires the return of an execution unsatisfied applies only to stockholders who have ceased to be such; not to persons sued as stockholders of the company. An agreement to sell stock, not consummated, is not enough to authorize the defence that the creditor’s remedy against the corporation has not been exhausted.</p> <p>Under section 26 of the act of 1848, a completed transfer of the stock, entered on the books of the corporation, is -essential, in order to exonerate the original stockholder from his liability for the debts of the corporation.</p> <p>The corporation being absolutely required, by that section, to keep a book which shall show who the existing stockholders are, it is no answer to a creditor objecting that an alleged transfer was not registered, to say that the company had no such book, at the time.</p> <p>Section 24 of the act of 1848, requiring, as a condition precedent to the personal liability of a stockholder, the commencement of a suit against the corporation, for the recovery of a debt, is not complied with by commencing a suit for the recovery of a part of the debt.</p> <p>Accordingly, where a creditor brought an action against a corporation, before a justice of the peace, upon an account for work and labor, &c., amounting to $366,60, the complaint claiming $200 only, (that being the extent of the justice’s jurisdiction,) and no suit had been brought against the company for the balance of the account; Held, in an action by a creditor against a stockholder, that the recovery must be limited to $200 and interest.</p>

THE referee appointed in this action having made a report therein in favor of the plaintiff for $6,113.80, with costs, which the defendants claimed was irregular, and the plaintiffs having presented their bill of costs to the clerk for adjustment, the clerk refused to tax said costs, which refusal the plaintiffs claimed was irregular.

THIS action was brought to recover the amount of a check for $5,000, dated New York, January 31, 1865, payable in gold, drawn by Morgan & Sons, on the Bank of New York, payable to their own order,… Held: as a matter of law, that the defendant was entitled to a verdict, and refused to submit any question to the jury, and directed a verdict for the defendant, to which, as to all of the other rulings on the trial, the plaintiff’s counsel excepted. This ruling was wrong. 1.

<p>APPEAL, by the defendants, from a judgment at the circuit, in favor of the plaintiffs.</p> <p>The common council of the city of New York, in March, 1865, presented a petition to this court, praying for the appointment of commissioners to estimate and assess the damages sustained by owners and other persons interested in certain lands proposed to be taken for the purpose of extending Church street in said city. Such proceedings were had in this court, on the petition, that commissioners were appointed to assess said damages, and they made an estimate and assessment of such damages, in and by which they assessed the damages sustained by the plaintiffs, by reason of taking their land, at the sum of $93,180. The report of the commissioners was confirmed on the 30th of December, 1867.</p> <p>On the 7th of December, 1868, the plaintiff presented to the common council a petition praying for the payment of the said damages, with interest from the 7th of January, 1868, the day on which the report was filed; but the same were not paid until the 12th of June, 1869.</p> <p>The plaintiffs demanded the payment of interest on said damages from the expiration of four months from the confirmation of said report. This the defendants refused to pay. The plaintiffs received the amount of damages awarded. And it was conceded by the counsel that in the receipt for the damages the plaintiffs expressly stated they did not waive their claim for interest.</p> <p>It was proved, on the trial, that the interest on the damages awarded to the plaintiffs from the 7th of December, 1868, when the petition was presented to the common council, until the 2d of June, 1868, was $3,274.93, and that the interest on that sum from the 12th of June, 1868, until the trial, was $160.95, making, in all, $3,435.98.</p> <p>The defendants’ counsel moved to dismiss the complaint, upon the following grounds :</p> <p>1st. That no proper demand of the sum awarded had been made.</p> <p>2d. That the plaintiffs having received the principal of the sum awarded, could not maintain an action to recover the interest.</p> <p>3d. That on the facts proved, the plaintiffs were not entitled to recover.</p> <p>The motion was denied, and the plaintiffs’ counsel excepted.</p> <p>The defendants put in evidence a resolution passed by the common council and approved by the mayor on the 13th of March, 1869; and that the actual opening of Church street took place on the first day of March, 1869.</p> <p>The defendants offered to prove that the plaintiffs remained in the possession, and had not been disturbed in the use and enjoyment, of the premises for which the award was made, down to and including the time when the aforesaid principal was paid, and also down to the 13th of March, 1869. The plaintiffs objected to the evidence. The objection was sustained, and the defendants’ counsel excepted.</p> <p>The defendants’ counsel renewed his motion to dismiss the complaint, on the grounds above stated and on the further ground that by the resolution of the common council the street was not opened until the 1st of March, 1869, and the damages did not become due until that time, and that on the whole case the plaintiffs could not recover.</p> <p>The motion was denied, and the defendants’ counsel excepted.</p> <p>The court directed a verdict in favor of the plaintiffs for $3,435.98. To which ruling and direction the defendants’ counsel excepted.</p>

<p>A prisoner under indictment cam admit, as testimony to be considered by the jury, on the trial, depositions of non-resident witnesses, taken prior to the trial, or de bene esse, by his consent and im his presence.</p> <p>Where the prisoner, both before and at the trial, consented that depositions so taken should be read in evidence on the trial; held that such consent was a waiver of more formal proof, and was binding upon the prisoner.</p>

APPEAL, by the plaintiff, from a judgment entered at a Special Term, dismissing the complaint. TMs action was tried at a Special Term of this court, in October, 1872, before Justice Barrett. The defendants Onderdonk and Field are the only ones who answered or contested the action. No testimony was introduced by them on the trial.

APPEAL by the defendants, Eckert & Winter, from a judgment entered on the verdict of a jury. The action was brought on a promissory note, made by the defendants, Eckert & Winter, to the order of Altenbrand Brothers, and by them indorsed and sold to plaintiffs. The defendants, Eckert & Winter, were alone served with process, although the Altenbrands were nominal parties.

<p>PPEAL, by the plaintiffs, from a judgment entered at a Special Term, dismissing the complaint.</p> <p>On the 6th of February, 1873, a suit being pending in this court, wherein these plaintiffs were plaintiffs, and Robert Patton, Willard Ginn and John B. Folger were defendants, and an attachment having been issued therein, the present defendants, Crowell & Fisher, for the purpose of procuring a discharge of such attachment, executed an undertaking, entitled in said action, in these words:</p> <p>“An attachment having been issued in the above action to the sheriff of the city and county of New York, and the above named defendants having appeared in such action, and being about to apply to the officer who issued such attachment, or to the above mentioned court, for an order to discharge the same, we, Elisha Crowell, of No. 37 Lafayette avenue, in said city of Brooklyn, and Augustus G. Fisher, of No. 37 Lafayette avenue, in said city of Brooklyn, do hereby, pursuant to the statute in such case made and provided, undertake, in the sum of seven hundred dollars, that we will, on demand, pay to the above named plaintiff the amount of the judgment which may be recovered against the above named defendant in this action, not exceeding the above mentioned sum. Dated</p> <p>New York, February, 1872.</p> <p>Elisha Crowell, A. G. Fisher.”</p> <p>Thereupon the attachment was discharged, and the attached property was surrendered by the sheriff, under the order of the court.</p> <p>That action proceeded until the 13th of July, 1872, when the plaintiffs had judgments against Patton and Ginn, two of the three defendants therein, for $526.37.</p> <p>This action was brought upon that undertaking. The judge at the trial dismissed the complaint, on the ground that the plaintiffs recovered against two only of the three defendants, and therefore there had been no breach of the condition of the undertaking.</p>

PPEAL, by the plaintiff, from a judgment entered. upon a verdict, and from an order denying a motion for a new trial. The action was brought to recover rent of the defendants as assignees of a lease executed by West & Robeson of premises known as 21 Park Place, in the city of New York, to one Lewis A. Osborn.

THIS action was brought to reform a policy of insurance and recover thereon for a loss sustained. It was tried by consent before Justice Barnard, at Special Term, a jury having been waived.

PPEAL, by the plaintiffs, from an order made at a Special Term, sustaining a demurrer to the complaint, and dismissing the complaint. The complaint alleges that on the 13th day of April, 1870, the plaintiffs were and have ever since been, and are now in possession, and entitled to the possession of certain lands and premises in the city of Yew York, known as hi os. 152, 154, 158 and 160 Third avenue, claiming under a deed, a copy of which was annexed.

<p>APPEAL, by the plaintiffs, from, an order made at a Special Term, granting to the defendant an extra allowance of $750.</p> <p>The action was commenced by the plaintiffs to abate dispossession proceedings commenced against them by the defendant, and to obtain an injunction to restrain such proceedings in future. The only cause alleged by the plaintiffs for demanding such relief was the pendency of actions brought against them by the defendant for the recovery of the same property. The defendant derfiurred to the complaint. The court, at Special Term, made an order sustaining the demurrer and dismissing the complaint, which was affirmed at General Term. (S. C., ante, p. 77.)</p> <p>The only matter involved in this action is the abstract right of the defendant to pursue inconsistent remedies. The Code, § 309, gives the court no power to make an allowance in such a case. The power of a court to make an allowance in any case is exceptional, and ought to be abolished, or restrained within very narrow and clearly defined limits. Where the rights in controversy have no money value an allowance cannot be made. (The People v. The Albany and Susquehanna R. R. Co., 5 Lansing, 25, 36.) If the plaintiffs are entitled to a reversal of the order dismissing the complaint, they are entitled to a reversal of the order for an allowance which was predicated upon it.</p> <p>The extra allowance was properly granted. The dispossession proceedings were commenced to recover property worth $100,000, or a balance of about $15,000 of rent. This action was brought to obtain an abatement of such proceedings, and a permanent injunction to restrain similar proceedings in future. The defendants claimed, in arguing the motion before Judge Fancheb, that a proper basis of allowance was the value of the real estate itself, but he held that the rent due was the correct basis. The plaintiffs can hardly complain of this. On the most favorable construction for them, this was the amount of the subject-matter involved. The words of the Code are in the disjunctive: “Upon the amount of the recovery or claim, or subject-matter involved.” The value of the property to be directly affected by the result of an action affords a proper basis for computing the percentage authorized by section 309 of the Code in difficult and extraordinary cases. So held where the action was brought to restrain the defendants from discontinuing and removing a railroad. (People v. A. & V. R. R. Co., 16 Abb., 465.)</p> <p>In a strict sense, the amount of the plaintiffs’ claim was nothing, but they were attempting to prevent the defendant from recovering his property or his rent, and that was the amount involved.</p>

<p>ACTION to recover the possession of property- purchased by the plaintiffs at a foreclosure sale.</p>

THIS case came before the court on a case and exceptions, ordered to be first heard at Gteneral Term. The action was brought by the widow and heirs of Daniel Bartholomew, deceased intestate, for the recovery of real property, to wit, thirty acres in the south west corner of lot Ho. 5, of great lot Ho. 143 in the old town of Chemung, Chemung county.

APPEAL by the defendants from a judgment entered on the report of a referee. The action was brought to set aside a deed made by the plaintiffs to the defendant, Bean, on the ground of fraud, undue influence and incapacity of the grantors, and for an accounting. The case was heard before a referee, who directed judgment in favor of the plaintiffs, with costs. Judgment having been entered, the defendants appealed to the General Term of this court.

APPEAL by the plaintiff from an order denying a new trial on the minutes, and motion for new trial on case and exceptions, ordered to be heard in the first instance at the General Term. The action was brought to recover damages for the killing of James Moran by the defendant’s negligence. Moran was a brakeman on the defendant’s road, on a freight train running from West Albany to Syracuse.

HIS is an appeal from a judgment directed by a referee, to whom the action was referred to hear and determine it. (S. C., briefly reported, 3 Thomp. & C., 771.)

The action was brought to recover $1,000 alleged in the complaint to have been lent by the plaintiff to the defendant, at his request. The answer was a simple denial of the complaint. The action was tried before Justice Murray, with a jury. But three witnesses were sworn, on the trial, the plaintiff, in his own behalf—and the defendant and the former wife of the plaintiff on the defence.

HIS case came before the court upon a writ of certiorari, issued by Justice Doolittle, directed to E. B. Hastings, Esq., a justice of the peace of the city of Utica, and returnable at the General Term, to review a judgment rendered by said justice, in favor of the defendant and against the relator, in summary proceedings instituted by the relator to remove the defendant from the possession of premises occupied by her.

<p>APPEAL, by the defendant, from a judgment entered upon a verdict, and from an order denying a motion for a new trial, made upon the ground that the evidence did not support the verdict, and that the damages were excessive.</p>

HIS was an action of ejectment tried at the Rensselaer circuit, in June, 1869, before Justice Peckham and a jury. It appeared upon the trial, that on the 4th day of October, 1793, Stephen Van Rensselaer and.

THIS is an appeal from a judgment rendered at the Greene county circuit, and from an order denying a motion for a new trial. The action was for libel, which consisted in sending two letters to one Mrs. Hurd, a sister of the plaintiff, containing indecent and unwarranted aspersions upon the plaintiff’s conduct, and calculated to ruin her character. The first of these letters purports to be written at Oak Hill, August 23, 1867, and the last at Oak Hill, September 10, 1867.

APPEAL, by the defendant, from a judgment entered upon the report of a referee. The action was upon a check made by the defendant, payable to the order of Peters & Schierloh, and indorsed by them to the plaintiff.

<p>Where, by the terms of an executory agreement, the delivery of goods is to be at a specified place, to a specified person, who, as between him and the buyer, is not authorized to inspect the goods, but has a general authority to receive, weigh and forward such goods as the purchaser sends, and goods are in fact received by the agent and by him consigned to another agent of the buyer, at a distant place for sale, the purchaser will be held to have accepted the goods, and is precluded, in the absence of fraud, from subsequently calling in question the quantity, or quality, of the property sold, in an action brought by the vendor, for the contract price.</p> <p>It seems that it is the duty of the purchaser of an article of merchandise which, in its nature, is open to ready inspection, and which is, by the terms of the contract of sale, to be delivered at a specified place, to provide for the inspection of the commodity before it has been transported from the place of delivery, in pursuance of the buyer’s directions.</p> <p>The defendant contracted with the plaintiff for all the cheese the latter should make, in Ms dairy, during a specified term, the cheese to be delivered to A., an agent of the defendant at D., who had instructions from the defendant to receive such cheese as should be sent to him, and to weigh and forward the same to the defendant’s agent or consignee, in New York, for sale. Under this contract a quantity of cheese was received from the plaintiff, by A., and was by him weighed and forwarded to New York in pursuance of the" defendant’s directions. Held, that there was a delivery and acceptance of the cheese. That it was an article that could be inspected, and its quality ascertained; and this should have been done, at A.’s warehouse. And that after the goods had been accepted by the purchaser's agent, and forwarded to New York, it was too late for the defendant to raise any question as to the quality of the cheese.</p>

HIS was an action brought to recover the balance unpaid of the price of 203,100 hoops, which the plaintiff agreed to manufacture and deliver to the defendant at Carthage, in the county of Jefferson, at $3.50 per thousand. The hoops were to be well rived ash hoops, and of specified dimensions. Payments were to be made by instalments ; that is, from time to time as a certain number should be delivered. The contract was dated Dec. 8, 1862, and was for 200,000 hoops.

PPEAL, by the plaintiff j from a judgment entered at a Special Term, on a trial by the court without a jury, dismissing the complaint in this action. The triangular piece of ground which is the subject of controversy in this suit, was owned in fee by the Syracuse Company, so called.

MOTIOI7 for a new trial, on a case containing exceptions, which were ordered to be heard in the first instance at the General Term. The plaintiff claimed to recover for 3,438 cords of wood at four dollars per cord, less $8,000 which had been paid by the defendant. The defendant denied that it had purchased or received that quantity of wood from the plaintiff, and alleged that it purchased only 3,000 cords, and that the wood delivered actually amounted to only 3,091J cords.

APPEAL, by the defendant, from a judgment entered upon the report of a referee. The action was brought to recover damages for a breach of contract.

<p>APPEAL by the defendants from a judgment entered on a referee’s report. (S. C., reported briefly, 4 Hun, 649.)</p>

<p>Where there is no stipulation for credit or delay, on either side, in contracts for the sale of property, a delivery of it, and the payment of the price, are each conditions of the other, and neither party can sue for a breach without having offered performance on his own part. A mere readiness to perform is not sufficient.</p> <p>The plaintiff being, in January, 1865, the owner of $40,000 in gold, which had been purchased for him.by the defendants, as his brokers, entered into two agreements with M. for the sale thereof to him; by one of which he agreed to deliver to M. $20,000, at M.’s cation, between the 1st and 20th of February, and by the other he agreed to deliver to him $20,000, at any time when called for, between the 21st day of January and the 20th of February. The gold was to be delivered, and the price paid, in New York. These contracts, signed by M., were sent by the plaintiff to the defendants, with directions to deliver to M. the amounts of gold contracted for. On the 30th of January, an agent of M. demanded of the defendants, and received from them, the $20,000 first deliverable. The $20,000 .sold under the other agreement was not tendered by the defendants during the time specified in that agreement. Held, that it was the duty of the defendants to make such tender; and that the plaintiff having, by their neglect to do so, lost the benefit and advantage of the sale, and the right to enforce the contract, he was entitled to recover of the defendants the damages he had sustained.</p> <p>Held, also, that the plaintiff, on discovering that the defendants had failed to deliver or tender the gold, should have taken prompt measures to protect himself from further loss, by directing a sale of the gold on hand ; and that he having omitted to do so, the defendants were not liable for any loss occasioned by a subsequent fall in the price of gold.</p> <p>A party subjected to loss by the misconduct of another has no right to unnecessarily enhance it for the purpose of aggravating the injury caused by the wrong. Good faith requires him to protect himself from needless loss, so far as that can be accomplished by reasonable efforts and attention. Pm’ Daniels, J.</p>

<p>APPEAL, -by the defendant, from a judgment entered upon a verdict, and from an order denying a motion, made upon the judge’s minutes, for a new trial.</p>

<p>APPEAL by the defendant from a judgment entered on the verdict of a jury.</p>

APPEAL, by the defendants, from a judgment rendered at a Special Term. The action was brought by a judgment creditor of the defendant George Barandon, to set aside, as fraudulent and void, a mortgage upon two pieces of real estate in the city of ¡New York, and also a deed of the same premises, executed by him to the defendant, John Barandon. The judgment rendered at the Special Term was in favor of the plaintiff, declaring the conveyances void as against creditors.

<p>An exception to the sufficiency of the sureties in an undertaking given upon an appeal to the Court of Appeals having been taken, notice of justification was duly given. One of the sureties was approved, and the other not being considered sufficient, an adjournment was had, to give the appellants time to give additional surety. The attorneys then agreed that both the persons offered should be taken as sureties, the appellants’ attorney promising to have it ‘‘so marked by the court.” This was not done; but the appeal proceeded as if it had been, and was heard and decided in favor of the respondent. In an action upon the undertaking; held, that the sureties cquld ppt raise the objection that one of them failed to justify, and that the approval of the sureties, on justification, was not made, nor the allowance indorsed on the undertaking, as contemplated by section 196 of the Code.</p>

APPEAL, by the defendant, from a judgment entered upon the report of a referee. The action was brought by the plaintiff as ■ executor of James B. Murray, deceased, for a judicial construction of the will of the said James B. Murray, and a codicil thereto, and for a settlement of the executor’s accounts, and a final determination of the rights of the parties interested in the estate.

<p>Where six women made an indecent exposure of their persons, for money, to five men present and paying therefor; held, that such exhibition made the room wherein it occurred a “ public place,” within the meaning of the statute, although it was a room in a house of prostitution, and not open to the general public.</p> <p>Held, also, that the offence being a misdemeanor commit.tp.fi by all, at the same time, each aiding and abetting every other, the offence was joint, and the offenders could be jointly prosecuted and convicted.</p>

APPEAL, by the defendants, from an order made at a Special Term, overruling a demurrer to the complaint. On the 1st day of January, 1869, the plaintiff was appointed messenger to the president of the board of aldermen of the city of Few York, by the clerk of the common council, at a salary of $1,500 per annum. On the 23d of October, 1869, the board of aldermen increased his salary to $2,500 per annum.

<p>The order of proof, on the trial, is, in general, if not always, a matter of discretion with the court, and therefore not reviewable. ,</p> <p>In an action brought against the defendant as indorser of a promissory note, the defence was that the indorsement was a forgery. On the trial, the defendant offered to prove that a witness, called by the plaintiff, had been instrumental in getting one B. indicted for the forgery of the note in suit, insisting that if he was so instrumental it militated against, and impaired his opinion, previously given in evidence, to the effect that the indorsement was genuine. Held, that this was not necessarily so; and that the evidence was properly excluded.</p>

PPEAL, by the defendant, from a decision in favor of the plaintiff, made at Special Term, on a trial by the court without a jury. The action was brought by the plaintiffs, as joint owners of a steam towboat, navigating the Hudson river, for damages received by said boat by running foul of a telegraph cable of the defendant which crossed the river at a railroad bridge at Albany.

APPEALS, by Geo. E. Morse, from judgments entered upon the reports of a referee. The first two actions were brought by Geo. E. Morse, as administrator &c. of Ellis Morse, deceased, against Samuel White and others, to recover the amount due upon three judgments recovered against the defendants and assigned to said Ellis Morse. Samuel White having died during the pendency of those suits, the same were continued against his administrator, D. Z. Brockett.

<p>Where there is a non-joinder of parties plaintiff, yet if the answer does not set up such non-joinder as a separate and distinct defence, the objection will be deemed to have been waived.</p> <p>Although an answer be defective in form, yet if the cause is tried, before a jury, without any objection to the pleading on the ground of insufficiency, the objection will be deemed to have been waived; and upon appeal, the case will be examined on the merits of the matters litigated before the jury.</p> <p>Where the evidence is conflicting it is for the jury, who see the witnesses, hear them testify, and observe their manner of testifying, to settle the questions of fact between the parties. And where the proof is such as to authorize the jury to find for either party, on the disputed questions, accordingly as they shall credit the evidence favorable to one or the other of them, their verdict is conclusive upon the parties.</p> <p>Where there is sufficient evidence, if adopted as the truth of the case, to vindicate the verdict, the judgment cannot be reversed on the ground that the finding of the jury is unsupported by proof.</p>

<p>In an action to recover brokerage, of vendors, upon the sale of a farm, the defence was that the plaintiff was not employed by the defendants. The evidence as to the fact of employment being conflicting, testimony was offered by the defendants, going to show that the plaintiff was, in point of fact, in the employment of the purchaser, or acting in his behalf and interest. Held, that the evidence was properly admitted.</p> <p>And there being a question both as to the fact of the plaintiff’s employment by the defendants, and as to its extent; held, that evidence of all that he said and did, bearing on the subject of his services at and during the time he assumed to act in aid and furtherance of the object sought to be attained, was competent to be proved.</p> <p>That the defendants had a right to show what he did, and all he did, on the subject of the sale, to the delivery of the deed. But that if the plaintiff had 'earned his commissions when the contract was signed and delivered, evidence of his subsequent conduct in the matter was inadmissible.</p> <p>Sold, farther, that if employed simply to obtain a purchaser, the plaintiff’s commissions were earned when he produced a satisfactory buyer; but he was bound to show an employment, and the extent of it, and that he had performed the undertaking assumed in the contract with his principals.</p>

<p>The defendants, who were trustees of a manufacturing corporation organized under the act of 1848, (Laws of 1848, ch. 40,) and the acts amending the same, were charged with a violation of section two of chapter eighteen, title four of the first part of the Revised Statutes, (vol. 1, p. 1176, 4th ed.,) in having paid dividends not from the surplus profits of the plaintiff, but by withdrawing and dividing a part of the capital stock without the consent of the legislature. Held, that the two statutes were repugnant to, and in conflict with, each other; and that it was not the meaning or object of the law-makers to apply both statutes to trustees of a corporation created under the act of 1848.</p> <p>Held, also, that the legislature designed to provide, by the act of 1848, itself, for the cases in which individual liability should result from the acts prohibited.</p> <p>Accordingly, held, that an action could not be maintained against the defendants, as trustees, under the provisions of the Revised Statutes.</p> <p>A subsequent statute, which is clearly repugnant to a prior one, necessarily repeals the former, although it do not do so in terms; and even if the subsequent statute be not repugnant, in all its provisions, to a prior one, yet if the latest statute was clearly intended to prescribe the only rule which should govern in the case provided for, it repeals the original act.</p> <p>A subsequent statute, making a different provision on the same subject, is not to be construed as an explanatory act, but as an implied repeal of the former.</p> <p>The cases of Bowen v. Lease, (5 Hill, 221;) Robinson v. Bank of Utica, (21 N. Y., 406;) Sibell v. Remsen, (33 N. Y, 95;) and Harris v. Thompson, (15 Barb., 62,) commented on and distinguished.</p>

PPEAL, by the plaintiffs, from a judgment in favor of the defendant entered upon the verdict of a jury. The action was brought to recover damages for the alleged breach of a contract to deliver 6,000 tons of coal. The defendant was, in 1868, the operator of a coal mine, in Pennsylvania, and the firm of Chamberlain & Co. were commission coal merchants, in the city of New York. Upon the application of Chamberlain the defendant sent to the firm coal to sell on commission.

<p>APPEAL from an order of the Special Term denying a motion made by the defendant for a reference.</p>

APPEAL, by the plaintiff, from an order made at a Special Term, denying a motion to strike out the answer as irrelevant, &c. (S. C., very briefly reported, 4 Hun, 671.)

<p>APPEAL, by the plaintiffs, from an order of the Special Term setting aside a judgment.</p>

APPEAL by L. H. Meyer, from an order made at Special Term, directing him to appear and be examined as to property alleged to be held by him for the benefit of the defendant.

<p>The National Steam Navigation Company, preparatory to a dissolution of that corporation, transferred all its property to two liquidators, under the provisions of an English statute, and the said liquidators transferred all of said property to the defendant, on the 16th day of August, 1867; and on that day the Navigation Company ceased to do business, and commenced to wind up its affairs. Such transfer was made substantially upon the agreement and condition that the defendant should take and accept such property subject to the rights and equities therein subsisting, and particularly to the discharge of the several liabilities appearing on the books, papers and documents of the Navigation Company, and to all other liabilities of that company to which the said property was then subject; and would bear, pay and discharge, in due course, the several liabilities disclosed in said books, papers and documents, and all other debts, if any, of the said Navigation Company, and would devote and apply the property so to be made over to it for that purpose. On the 23d of June, 1868, a judgment was recovered by the plaintiff’s assignor, as administratrix, against the Navigation Company for an injury to her intestate, caused by the negligence of that company in navigating its vessel, on the 24th of October, 1867. In an action brought by the plaintiff to enforce that judgment against the defendant on the ground that it had assumed to pay the debts and liabilities of the Navigation Company :</p> <p>Held, 1. That the liability to the plaintiff’s assignor for an injury which occurred to her intestate on the 24th of October, 1867, could not appear in the books, papers and documents of the Navigation Company on the 16th of August preceding, and was not then a debt or liability of that company which was or could be assumed by the defendant.</p> <p>2. That the action of the plaintiff’s assignor, in which the judgment was recovered, was brought against the wrong party. That the defendant being, at the time when the injury occurred, the owner of the vessel causing the injury, and engaged in its navigation, the alleged wrongful act and negligence were its own, and not those of the Navigation Company, the corporation which was sued.</p> <p>3. That it could not be held that by the agreement made on the transfer of the property the defendant bound itself to pay its own liabilities that might</p> <p>• thereafter spring out of the wrongful acts and negligence of its own servants ; nor did the agreement contemplate or provide for liabilities of that kind which might be asserted by actions improperly brought against the Navigation Company, which had ceased to do business, and was existing only in the process of winding up its affairs.</p> <p>4. That the agreement did not embrace the judgment in question, unless it appeared that the injury happened by the act of the Navigation Company, or of its liquidators, in the course of the winding up of its affairs, under the statute mentioned therein.</p> <p>6. That it not being shown that the defendant was a privy to the suit against the Ravigation Company, so that the judgment therein could he treated as a judgment against itself, the defendant was not hound, nor estopped hy such judgment; and that the complaint was properly dismissed.</p>

<p>APPEAL from an order of the Special Term, adjudging the defendant to be in contempt for violating an injunction.</p>

APPEAL by the defendants in an action brought by Richard Bainbridge, now deceased, in his lifetime, against Charles P. Livermore and others, from an order made at a Special Term, granting , a motion made by Henry Bainbridge and another, executors of said Richard Bainbridge, for leave to revive and continue the action, &c. The action in question was commenced in November, 1864, to recover damages for the alleged illegal sale of the plaintiff’s stocks, gold and other…

<p>APPEAL from an order appointing commissioners of appraisal. (S. C., reported briefly, 4 Hun, 635.)</p>

<p>An action, by the United States, for the recovery of a sum of money claimed to be due and owing to the plaintiff, for unpaid duties upon imported goods, may be brought in a state court.</p> <p>The primary object of such an action is not simply to execute 'the laws of the United States, but to collect a debt by enforcing an obligation due to it.</p> <p>And in that class of cases, the United States, as a body politic, can maintain, an action in a state court, in the same manner as other states and sovereign-ties may sue.</p> <p>In the affidavit upon which an attachment, in such an action, was issued, it was stated that the defendant had “ imported and brought into the United States, at the port of New York,” the goods upon which the duties had accrued. Held, that these words amounted to an allegation of an importation of the goods by the defendant, complete in its nature, with the control and possession of the property actually in him.</p> <p>Held, also, that by importing the goods, the defendant had become indebted to the plaintiff for the amount of the duties; and that the law would infer that he intended and promised to pay the same.</p> <p>Held, further, that to enforce that liability an attachment might be issued.</p> <p>A former action for the same cause, commenced in another court, is no bar to a subsequent one, where it appears that no process was ever served in such former action, upon the defendant, and hence the court acquired no jurisdiction over the person; and that the attachment against property, issued therein, has been vacated.</p> <p>It is the duty of a sheriff, acting under an attachment, to attach the real and personal estate of the debtor. And that can only be done by taking it into his custody, where the property is tangible in its character.</p> <p>Hence, an order directing a sheriff, under an attachment, to open a safe and tin box containing the property and securities of the defendant, on deposit in a trust company, and to take therefrom and safely keep the property and evidences of debt, liable to attachment, found therein, is not improper.</p> <p>Such safe and box are not within the protection which the law affords to a debtor’s dwelling house, against an officer acting under civil process. They are simply places of deposit and safe keeping, which the sheriff may enter to make the seizure required by law, in the execution of the process.</p> <p>An order directing the exclusion of the counsel and agents of each party, at the time of the opening of a safe containing the property and securities of the defendant, by the sheriff, is a proper exercise of the discretion of the court.</p>

<p>APPEAL from order sustaining a demurrer to the plaintiffs’ complaint, and from the judgment entered pursuant to the same. (S. C., very briefly reported, 4 Hun, 627.)</p>

<p>The defendant’s charter, granted March 28, 1873, authorized it to construct and use passenger railways, in the city of New York, through certain streets therein, and “through and along West street, with double tracks to Christopher street, at the foot of Christopher street, North river.” The plaintiff’s charter, granted April 26,1873, authorized it to lay, construct and use a railroad for passengers in said city, through, upon and along certain routes therein specified, “ commencing at Christopher street ferry, and running thence through and along Christopher street, with a single track to Greenwich avenue, * * thence through and along West street, with a single track to the Christopher street ferry, the place of beginning.” Held, 1. That the defendant’s charter conferred upon it the power to extend its track to the North river, at the foot of Christopher street.</p> <p>2. That the plaintiff occupied no such relation towards the defendant, or the public streets, as entitled it to maintain an action to restrain the defendant from using the public streets.</p> <p>3. That the rights conferred upon the plaintiff, by its charter, were not exclusive, and did not prevent the legislature from conferring authority to fix the terminus of the defendant’s road at the North river, at the point designated.</p> <p>4. Nor did it confer upon the plaintiff the power or duty of interfering to protect the public interest, either on behalf of the city or of the general public.</p> <p>6. That if there was any excess of power in the claim of the defendant to run its track to Christopher street ferry, the public, alone, could interfere to restrain the defendant by injunction; unless it should be shown that some actual interference with the tracks as laid at that time, by the plaintiff, had occurred, or was about to be attempted.</p> <p>6. That there were no sufficient grounds for the issuing of a preliminary injunction ; and an order making the same absolute was reversed.</p>

<p>APPEAL from an order made at Special Term setting aside a verdict in favor of the defendants, and granting a new trial on the ground of surprise.</p>

<p>APPEAL, by the plaintiff, from an order of the Special Term, retaxing costs. (S. C., briefly reported, 4 Hun, 640.)</p>

APPEAL, by the defendants, from a judgment entered on a verdict. The action, was brought to recover back the amount of an assessment for a street improvement, which the plaintiff had paid to the defendant. The plaintiff being the owner of a lot assessed, attempted to pay the sum assessed thereon, but by mistake paid the assessment laid on an adjoining lot, not owned by him, and which assessment was subsequently vacated. (S. C., briefly reported, 4 Hun, 673.)

<p>Upon an application, by an insolveút and imprisoned .debtor, to be discharged from imprisonment, the notice required by the statute (2 Edm. Stat. at Large, 29, § 4,) was, by the order made, directed to be published in two papers named, and was required to be given for the 6th of June, 1874, at 11 a.m. The publication of the notice, in one of the papers, was of an application to be made on the third of June. Held, that upon such a notice the officer had no right to grant a discharge.</p> <p>That until the publication of the notice was made as directed, and proof of such publication was before the Officer, he was without jurisdiction.</p> <p>Held, also, that the right of the creditor to a certiorari in such a case, being positively given by the statute, the court had no right to withhold that remedy, notwithstanding the right of appeal from the erroneous order existed.</p>

<p>It is well settled that the delivery of a check is not a payment, unless there be an agreement to that effect, or unless the drawer, in consequence of some laches on the part of the holder, has sustained loss or injury in respect thereof and then only pro tanto.</p> <p>A creditor is not bound to accept a check, even if it be for the entire amount of his claim.</p> <p>Nor is he bound to receive money. He may, although it be sent to him, refuse to accept it, and leave the debtor to his plea of tender, when sued for the claim.</p> <p>He may do this, even though, having received the money, he keeps it subject to the order of the debtor. The latter must withdraw the money, and plead tender, and thus save himself from the costs of the controversy.</p> <p>The defendants being indebted to the plaintiff in the sum of $89.29, the proceeds of a consignment of produce sent to them for sale, sent their check for that amount to the plaintiff, with an account of sales. The plaintiff refused to accept the check, claiming that the defendants were indebted to him for balances on former shipments. He did not return or use the check, but held the same subject to the order of the drawers, and offered to surrender it, on the trial. Held, that the referee was correct in holding that the check was not a payment pro tanto of the plaintiff’s claim.</p>

<p>APPEAL from an order denying a motion to set aside an attachment. (S. C., briefly reported, 4 Hun, 638.)</p>

<p>APPEAL, by the defendant, from a judgment entered on the verdict of a jury. (S. C., reported briefly, 4 Hun, 633.)</p>

<p>APPEAL, by the plaintiff, from an order vacating an order made for the publication of the summons. (S. C., briefly reported, 4 Hun, 625.)</p>

<p>APPEAL from an order striking out the defendants’ answer as frivolous. (S. C., reported briefly, 4 Hun, 643.)</p>

THIS case came before the court on an appeal from an order denying a new trial on the minutes of the judge; and on a case and exceptions. It seems that judgment was entered ; but it was said by counsel that this was allowed only as security; and no appeal from the judgment appears in the papers.

fusing to vacate an order appointing commissioners of estimate; from order confirming their report; and from order confirming report of the local assessors of the city of Troy. (S. C., reported briefly, 3 Thomp. & C., 770.

THIS is an appeal from an order denying a new trial on the minutes of the court; also an appeal from the judgment in favor of the plaintiff on the verdict of the jury ; and there is also an appeal from an order of the Special Term denying a motion for a new trial on the ground of newly discovered evidence.' The action was brought upon a policy of insurance, issued by the defendants, upon the life of Joseph B. Althouse, the plaintiff’s testator.

THIS was an appeal by the defendants from an order denying a motion for a new trial on the ground of newly discovered evidence.

THIS is an appeal, by Adelia P. Fletcher and others, from a decree of the surrogate of Schuyler county, allowing to the respondent, Eleanor D. Updike, against the estate of her deceased husband, the sum of $2,491.23, the amount of her claim presented to that officer for allowance.

The action was brought by the plaintiff as bank comptroller of the state of Wisconsin, to enforce a bond executed to him by M. and the defendants’ testator, to secure the payment of the circulating notes of a bank in that state.

<p>Where, in an action against an executor, there has been a reference, and a report in favor of the plaintiff, and a certificate by the referee, showing the presentment of the- demand to the executor, an offer to refer, refusal by executor to refer, and a rejection of the claim, before suit brought, the proper practice is for the plaintiff to apply to the court for an order allowing costs.</p> <p>The referee has no power to pass upon that question.</p>

THIS action is in the nature of a bill in equity, to reach the interest of Edward Chillingworth in the premises described in the complaint, the title to which, he took in the name of his wife, and she having died leaving the defendant her heir at law. The findings will present the facts upon which the decision of the questions involved is based. The debt arose in 1853. The conveyance was in 1862, and the payments by Edward C. were in 1862.

MOTION on the part of the defendant to set aside a judgment for $28,373.58 damages, and $17.91 costs, entered in Oneida county clerk’s office 2d September, 1871. This action was brought to recover penalties given by the act of 1857 (chap. 185,) “to prevent extortion by railroad companies and was commenced by service of summons only, 17th May, 1875.

circuit in Lewis county. The action was to recover a balance of $1,056.04 alleged to remain unpaid on two promissory notes: The defence was satisfaction by way of property agreed to be accepted, and accepted in payment of these two notes, as well as thirty-six others which were held by the plaintiff against the defendant.

THIS is an action to foreclose a mortgage and to declare the plaintiff to have a lien upon the premises described in the complaint, for $1,300. The facts are sufficiently stated in the opinion of the court.

THE plaintiff furnished materials to one Pinkerton to be used, and which were used, in the construction of a dwelling house for Merriam. The dwelling was constructed in part, in pursuance of an agreement to pay $2,450. The notice of lien on which the plaintiff instituted proceedings under the mechanics’ lien law applicable to Onondaga county, (Laws of 1864, p. 856,) to foreclose such lien, was filed with the clerk of Onondaga county, July 3, 1872.

A JURY having been waived, the parties proved before the court that on the 11th day of May, 1873, the People’s Savings Bank, the People’s Safe Deposit and Savings Institution of the State of Mew York, at Syracuse, issued to the defendant a certificate, in the following words, viz.: “Mr. David Fish has deposited in this bank six hundred and one dollars, payable to the order of himself in current notes, on the return of this certificate, with interest at seven per cent, per…

MOTION by the defendant for a new trial, upon the grounds of newly discovered evidence and surprise. The case has been heard twice before a jury. On the first trial, the jury disagreed; the second trial resulted in a verdict for the plaintiff for the amount of the note sued on. The defence alleged that the note was a forgery.

TRIAL by the court without a jury. The action was brought to restrain the defendant by injunction. The plaintiffs are seised in fee of certain lands situate in the town of Frankfort, through which the waters of Starch Factory creek have been accustomed to flow for more than twenty years, in passing into the Mohawk river.

BY consent of parties, this action was referred, and after the reference the defendant died, and the action has been revived against his executors.

THIS application is made upon a petition verified by one of the directors of the railroad company, and a notice of motion, &c. The contestant appeared, and was allowed to file a denial of the allegations of the petition, and to give evidence to disprove the allegations stated in the petition.

MOTION to continue injunction. A preliminary injunction was allowed ex parte, and the defendant ordered to show cause why it should not be continued. The hearing, on the day for showing cause, was upon the pleadings only. The plaintiff offered to read further affidavits in support of his complaint. To that the defendant objected.

THIS is an action in equity, and was tried by the court, without a jury. The following facts were found by the court: 1st. That Abner W. Camp, late of the town of Dunkirk, died the owner in fee simple of the lands and premises described in the complaint. That he left a last will and testament, which has been duly admitted to probate, by and before the surrogate of Chautauqua county.

MOTION by the defendant to compel the clerk to tax defendant’s costs of appeal from the county court to General Term, and from a justice’s court to the county court of Jefferson county. The plaintiff recovered, before a justice of the peace of Jefferson county, a judgment for $23, damages and costs.

<p>A warrant issued by a justice of the peace, commanding the arrest of “ Myron Cooter,” on a criminal charge, affords no justification to the officer for the arrest and detention of Charles L. Cooter; especially where the evidence tends to show that the felony charged therein was committed by Myron, and not by Charles L.; and that there was no ground of suspicion against the latter.</p> <p>Process for the arrest of a person must so describe him that the officer may know, and that the party whose liberty is threatened may know, whether he is bound to submit.</p>

MOTIOIST, by the plaintiff, for leave to make á case and bill of exceptions, and to have the plaintiff’s attempt to appeal declared good and effectual, and that the appeal was taken in time. The action was tried in November, 1872, and leave given to make case, &c., in thirty-five days. No case was made within the time given by the order.

<p>MOTION by the plaintiff for judgment, for frivolousness of demurrer to complaint.</p>

After proof, by the plaintiff, of the balance remaining unpaid upon the account set out in the complaint, and by the defendant, of his discharge in bankruptcy, the court, upon the plaintiff’s motion, directed a verdict for the plaintiff for said balance, $239.94, April 26, 1876. The defendant claimed to have the burden of proof, and the claim was allowed to him. After the verdict for the plaintiff was directed, the defendant made a motion for a new trial, upon the minutes.

PROCEEDIN'GrS to open a new street, 500 feet from Mohawk street in the city of Utica. Commissioners were appointed by the recorder’s court of the city of Utica, March 10, 1875, and an appeal taken by Albertus Lewis. It came on to be heard at the Lewis Special Term, and as there were disputed questions of fact, an order appointing H. C. Miller, Esq., referee, to take and report evidence, and his conclusions on the facts, was made.

THIS was an action to foreclose a mortgage which was not executed by the wife of the mortgagor, and was not given for purchase-money. It was executéd after marriage. Defence by wife that she was not a necessary party, &c. She was served with the summons, and a notice that no personal claim was made against her. On the 14th of December, 1876, she was served by the plaintiff with a stipulation that nothing in the judgment should affect her claim to dower.

THIS action was brought for the single purpose of setting aside, and declaring void, a transfer of an interest in certain bonds and mortgages, made by Mary Decker, in her lifetime, to the defendant, John H. Waterman.

<p>Money borrowed upon the credit of county bonds which the county was authorized by statute to issue and is legally liable to pay, becomes the property of the county the moment it reaches the hands of the county treasurer, or is deposited and placed to his credit as such treasurer, in bank.</p> <p>The chamberlain of the city of New York being, ex officio, treasurer of the county of New York, the receipt of money by him, as such treasurer, is a receipt of it by the county.</p> <p>And where moneys so placed in the county treasury are, in pursuance of a corrupt, fraudulent and unlawful combination and conspiracy to that end, by individuals, drawn out of the treasury, and fraudulently divided between such persons and others, an action will lie against such persons, to recover the. moneys back, and damages for the fraud perpetrated upon the county.</p> <p>In such a case, the county, being the owner of the property fraudiilently obtained, is the “ real party in interest,” and the proper party to bring the action.</p> <p>The people of the state, by their Attorney-General, cannot maintain an action against the confederates to recover back the moneys so fraudulently taken and converted, or to recover damages for the fraudulent conspiracy and conversion.</p> <p>No complete determination of the controversy in respect to such moneys, or damages, can be had, to which the county is not a party.</p> <p>Power or right of the court to order an amendment of a complaint, upon the trial.</p>

HE plaintiff was married on the 26th day of June, 1867, at the city of Syracuse, to John Magee, and they lived together some two or three years and separated, she alleging his cruel treatment as the cause; and she brought a suit for a limited divorce, in this court, which was pending and about to be tried, in October, 1871.

<p>Action to recover unpaid instalments of annuity.</p>

HE defendant, by his counsel George F. Corn-stock, David Field and E. E. Bacon, has made application for a writ of error with a stay of proceedings, to be issued to the court of oyer and terminer of the city and county of Hew York. The application is based upon the error-book containing 1064 pages of printed matter, the printed bill of exceptions containing 778 pages, and upon printed and oral briefs, consisting of numerous pages, and a citation of numerous authorities.

ACTION to obtain a construction of the last will and codicils of James Lynch, deceased. The facts stated in the complaint were substantially admitted upon the trial. The defendants appeared, and demanded a construction favorable to them respectively.

ON the 12th day of March, 1869, J. D. Murphy was the owner of a steam tug boat or vessel called the “George S. Dodge,” and on that day he executed a mortgage thereof to the plaintiff and one Joseph Baltis (who subsequently assigned to the plaintiff,) to secure $3,650, on which mortgage there remains due about $3,000 ; in which mortgage he covenanted to insure her, and keep the policies assigned to the mortgagees, and in case the said policies were not kept up,the mortgagees…

TRIAL at the Erie circuit. Jury waived. The following facts were either proved or admitted on the trial. 1st. The plaintiffs are copartners, engaged in shipping oil from the oil fields in Western Pennsylvania to Boston, by railroad. 2d. The Buffalo and Erie Railroad Company was a common carrier of goods from and between Erie, Pa., and Buffalo, N. Y. It was consolidated into the Lake Shore and Michigan Southern Rail Road Company, and the latter company became liable to suit…

THIS action was tried at the Erie county circuit, by and before Justice Barker and a jury, in February, 1877. Upon the direction of the court, a verdict was rendered for the plaintiff for the sum of $142, that being the only sum claimed by the plaintiff. Upon receiving the verdict, the court, on its own motion, ordered the case to stand for further consideration. At a subsequent day, the counsel for the respective parties handed in written arguments.

<p>A CTION tried at the Erie circuit, in February, 1877, -jLJl. before Justice Barker, without a jury.</p>

ON the trial, a verdict was rendered for the plaintiff, and the defendant moved for a new trial on a case containing exceptions.

The action was to recover damages arising from the negligence of the defendant as a common carrier, in transporting a quantity of cabbages from Albany to New York, in consequence of which negligence the cabbages became frozen. The plaintiff recovered a verdict. (S. C., briefly reported, 10 Hun, 569.)

DEMURRER to the complaint, assigning the following canses of demurrer; (1.) That the plaintiff has not legal capacity to sue ; (2.) That there is a defect of parties plaintiff; (3.) That the complaint does not state facts sufficient to constitute a cause of action. The complaint states : 1. That the plaintiff is the wife of James Van Arnam. 2.

WRIT of error to the court of oyer and terminer of Onondaga county, upon- a conviction of the plaintiff of the crime of murder in the first degree. The facts of the case, so far as relates to the questions discussed and decided, are fully stated in the opinion. The case is noted in 5 Hun, 104, but not reported in full. The case went to the Court of Appeals, where the judgment was affirmed. (See 63 N. Y., 143.)

APPEAL, by the defendant, from a judgment entered upon a verdict in favor of the plaintiff, and also from an order denying a motion for a new trial, on a case and exceptions. The action was to recover damages for negligence in killing the plaintiff’s horse, and damaging his wagon, by means of a' collision with an engine of the defendant, at a street crossing, in Rochester.

<p>APPEAL from a judgment entered upon the report of a referee. Action to recover the price of goods sold and delivered.</p>

The action was to recover damages for carelessly and negligently sinking the plaintiff’s canal boat, in the East river, on the 27th of February, 1873. The plaintiff owned the boat Eddie and George, and about the 24th of February, 1873, Crane & Hurd, of Bridgeport, Conn., hired the plaintiff and his boat to receive a cargo of corn, at Hew York, to be towed by the defendants’ steam tugs to Bridgeport.

APPEAL frpm an order denying a motion for a new trial, The action was brought to recover for medical services and attendance. It was tried at the Onondaga circuit, in October, 1874, before Justice Hardin and a jury, when a verdict was directed in favor of the plaintiff, for $70.20. A motion was made, upon the minutes, for a new trial, which was denied.

The action was brought upon a promissory note as follows: , “ Macedón, March 5, 1873. $45.50. Eight months after date, I promise to pay to the order of Wm. O’Brien forty-five Voo dollars, at the First National Bank of Palmyra, value rec’d with interest.

PPEAL from a judgment in favor of the plaintiff for $2,350.25. The case was tried at the Ontario circuit in February, 1875, before Hon. Jambs C. Smith, a justice of the court.

<p>Although a monomaniac may make a valid will, if the delusion which affects the general soundness of his mind has no relation to the subject or object of the will, or the persons who would otherwise be likely, ordinarily, to be the recipients of his bounty; or where the provisions of the will are entirely unconnected with, and uninfluenced by, the particular delusions; yet where the will is the result of that particular delusion which has seized his mind, and controls its operations, the rule is otherwise.</p> <p>On an application to the surrogate, for probate of a will executed by B. in 1867, the evidence showed that in 1838 the testator was insane, and was, for some time, confined in the insane asylum. After his discharge, and in 1844, he had an acute attack of insanity. From that time down to the time of his death, in 1870, the proofs showed, in his acts and declarations, numerous facts clearly indicative of an unsound and diseased mind. He was a chronic and confirmed monomaniac in respect to the freemasons, and expressed fears of the loss of his property and life from them. Connected with this delusion was also a delusion that there was a conspiracy among his friends and acquaintances, to rob him of his property. He said he could not have anything to do with his folks; that they were all masons, or under the influence of masons; that he did not want any of his relations to have any of his property, because they were masons. Held that it was quite apparent that the will was prepared, dictated and executed under the influence of these delusions ; and that in this view, it was an insane will, and the testator was actually non compos mentis, when it was made and executed, and incapable of making any will.</p> <p>Held, also, that a decree of the surrogate, finding, adjudging and declaring that the testator was not of sound mind and memory, at the time of executing said will, and refusing to admit the same to probate, was right, and warranted by the evidence.</p>

The action was on a policy of insurance upon the plaintiff’s dwelling house and contents. Loss $566.95. It was tried at the Steuben circuit, in November, 1874, before the Hon. C. 0. Dwight, circuit judge. The plaintiff was nonsuited at the trial. The questions upon which the nonsuit was granted sufficiently appear in the opinion.

PPBAL from an order made at Special Term, denying costs to the plaintiff and giving costs to the defendant. The questions decided, and the facts upon which they depend, sufficiently appear in the opinion.