Volume 67 — New York Reports

It appeared by plaintiffs’ affidavit, that about December 23, 1874, defendant contracted, through a broker, to purchase of plaintiffs 6,000 bushels of malt for $7,920.57, upon credit, except $476 for storage and charges. The malt was billed to defendant, December 31,1874, and on January 8,1875, defendant gave his notes for the purchase-price less the sum so paid in cash, at two, three and four months.

(Reported below, 5 J. & S., 516.) This action was brought to recover the value of a portmanteau and contents, alleged to have been received by defendant to be transported to New York. Plaintiff purchased a ticket at Montreal of the Grand Trunk Railway Company, from that city to New York, and had his baggage, including the portmanteau in question, checked through.

The indictment charged that the plaintiff in error “ in and upon one Walter Westlake, in the peace of God and of the people of the State, then and there being, willfully and feloniously and with premeditated design, did make an assault, and that the said Owen Tally with the teeth of him, the thumb of him, the said Walter Westlake, then and there willfully and feloniously and from premeditated design, did cut, bite, slit and destroy on purpose, with intent, then and there and…

(Reported below, 5 Hun, 195.) This action was brought to recover a balance of salary alleged to be due plaintiff as clerk of the district court of the city of New York for the third judicial district. The salary of such clerk is fixed by chapter 138 of the Laws of 1872, at $3,000 per annum.

The complaint alleged in substance, that plaintiff was engaged in the business of conducting and managing a place of public amusement in the city of Dew York, known as Wallack’s theatre, where public dramatic performances were exhibited.

The nature of the action and the facts are sufficiently set forth in the opinion. The parol agreement under which plaintiff claimed to have a trust declared in the land of defendants, was void under the statute of frauds. (2 R. S., 134, §§ 6, 8; Levy v. Brush, 45 N. Y., 589, 596; Smith v. Burnham, 3 Sumn., 435; Story’s ‘Eq.

(Mem. of decision below, 5 Hun, 649.) This action was brought to recover damages for an alleged breach of a contract, under and by which plaintiff was employed to teach the district school in District No. 3, of the town of Norwich, Chenango county. The facts sufficiently appear in the opinion. The trustee of a school district has no authority to hire a teacher for a term to commence' after his term of office has expired, and bind his successors in office or the district.

<p>Where a judgment has been affirmed by the General Term, with costs, an entry of judgment without including costs is regular; the respondent may waive costs, and, by entering up judgment upon the order of affirmance without inserting them, he does waive them.</p> <p>The docketing of a judgment is only necessary to create a lien upon lands. Under the statutory requirement, that judgments shall be entered in a "judgment book,” separate books are not required for the entry of judgments in legal and equitable actions.</p> <p>Where separate books are kept, a departure from the usual practice of the office by an entry of a judgment in one book which properly belongs in the other, may be disregarded, or the error corrected by the court, in its discretion, and its action is not reviewable here.</p> <p>So an order denying a motion to set aside a judgment, because of failure to file a proper judgment roll, is not reviewable here; if what was done amounts to a legal nullity, no substantial rights of defendant are impaired by the denial; if the roll is not in due form, or the filing, for any reason, is irregular, the granting or refusing the application is discretionary.</p>

The nature of the action and the facts are set forth sufficiently in the opinion. The hoard of supervisors had power to purchase the goods in question. It was a corporate act. (People v. Stout, 23 Barb., 352; 1 Black. Com., 81; Hall v. Lauderdale, 46 N. Y., 70 ; Bd. Suprs. v. Brewer, 4 Lans., 24; People v. Ingersoll, 58 N. Y., 1; State Bd.’of Agriculture v. Citizens' St. R. Co., 17 Am.

The nature of the action and the facts are sufficiently set forth in the opinion. It was error to refuse to allow defendant to prove that plaintiff did not own the claim. (Eaton v. Alger, 57 Barb., 179 ; Sanford v. Sanford, 45 N. Y., 723 ; Davis v. Hoppock, 6 Duer, 255; Andrews v. Bond, 16 Barb., 633; Evans v. Williams, 60 id., 346 ; Thompson v. E. R. R. Co., 45 N. Y., 468; Greenfield v. Mass. Mut. L. Ins. Co., 47 id., 430; Ontario Bk. v. N. J. Stbt.

(Reported below, Y J. & S., 155.) This action was brought to recover damages for injuries alleged to have been sustained through the negligence of defendant’s employe. Plaintiff’s evidence tended to show that he, with two other lads, his companions, signaled to one of defendant’s cars and called to the driver to stop; he did so, and the boys started to get on to the rear platform.

The nature of the action and the facts appear sufficiently in the opinion. The referee erred in overruling defendant’s objection to admitting in evidence the opinion of plaintiff and his other witnesses as to the value of his services.

It appeared that on June 25, 1870, an order was regularly-made and filed by William D. Strong, the then commissioner of said town, laying out said highway. Commissioners were appointed, and the damages duly assessed. Ho appeal was taken from the order or the assessment.

The will, after certain bequests, contained these clauses: “ Third.

the Supreme Court, in the second judicial department, modifying and affirming as modified a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 6 Hun, 285.) This action was brought to recover back the purchase-price paid for two railroad bonds. In March, 1870, plaintiff purchased of defendant two coupon bonds of the Des Moines Yalley Railroad Company, each for $1,000, for $1,800.

(Reported below, 3 Hun, 64.) This action was brought to recover a balance alleged to be due upon an award made in 1860 for lands of plaintiffs, taken for the widening of Worth street, in the city of New York. The answer set up the statute of limitations, and also set up an unpaid assessment upon the premises, to the amount of the balance unpaid of the award imposed upon the same lands for widening Center street.

This action was brought to recover damages for breach of a contract of employment. On the 29th June, 1872, defendant’s firm, E. M. Waters & Co., entered into a written agreement with plaintiff and two others, employing them as clerks for said firm for one year, and agreeing to pay them, as salaries, for their services, a sum equal to one-quarter of the net profits of the business exclusive of said salaries, of which plaintiff was to receive seven-fifteenths.

Appeal on the part of defendant, Henry C. Bispham, from order of the General Term of the Supreme Court, in the first judicial department, reversing an order of Special Term, respecting the distribution of surplus money arising upon a foreclosure sale in this action. (Hem. of decision below, 3 Hun, 210.) The facts sufficiently appear in the opinion. The respondents were bona fide holders of the mortgage for a valuable consideration.

These were cross-appeals from a judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial without a jury. The nature of the action and the facts are set forth sufficiently in the opinion. When a statute respecting the salary of a public official admits of two interpretations, the construction should be favorable to the claims of the official.

(Mem. of decision below, 5 Hun, 103.) This was an action upon a promissory note, made by the firm of H. C. Barnes & Co., of which firm defendants were sole partners. The note was given October 3, 1863, payable “ fifteen days demand after date.” About June 21, 1864, defendant, TaEman, sold out all his interest in the partnership property and effects to defendant Barnes, who agreed to assume and pay aE the firm debts.

This action was brought to recover damages for being ejected out of the defendant’s train.

<p>A sheriff having several executions in his hands, issued upon judgments rendered in counties outside the judicial district in which he resides, may make a motion in his own county for directions as to the disposition of moneys collected hy him, hy levy and sale, under the executions.</p> <p>The provision of the Code (sub. 4, § 401), providing that motions must be made in the district in which the action is triable, or in an adjoining county, etc., refers to motions in an action while'it is pending, or such as relate in some way to its pendency or procedure.</p> <p>Prior to the making of such a motion the sheriff had commenced an action against all the execution creditors, to determine their respective rights; some of the defendants answered, one demurred on the ground that the complaint did not state facts constituting a cause of action; the demurrer was sustained by the General Term. The action was pending at the time of making the motion. Meld, that this was no bar to the motion; that it was at least a matter of discretion with the court, whether' to grant relief on the motion during the pendency of the action.</p> <p>The property levied upon and sold by the sheriff belonged to a firm composed of defendants. Plaintiff, one of the execution creditors, obtained his judgment by default against defendants jointly, upon claims alleged to be due from their firm. The execution upon this judgment was the first one issued and delivered to the sheriff. Upon motion thereafter made by defendant W., the judgment was opened, and he was allowed to answer; he did so, denying the indebtedness, and upon trial obtained judgment, adjudging that the firm was not indebted to plaintiff. The other two defendants not having joined in the motion the original judgment was left standing as against them. Meld, that by the change in the original judgment the execution was practically superseded ; that if it retained any vitality it was only against the two defendants, for their debt, not the debt of the firm, and hence could take only their interest in the firm after payment of partnership debts; and that a subsequent execution, duly issued, upon a judgment against all the partners upon a firm debt, was entitled to a preference.</p>

The relator is a national bank. In Eovember, 1873, it presented to defendant The Board of Supervisors of Montgomery County, under chapter 525, Laws of 1873, a claim for taxes alleged to have been levied and paid by it upon United States bonds and securities which were exempt from taxation.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department denying appellant’s motion to set aside the report on character of a committee appointed to examine appellant on application for admission to practice as attorney and counselor and to admit said appellant. The facts sufficiently appear in the opinion.</p>

• Appeal from judgment of the General Term of the Superior Oourt of the city of New York, affirming a judgment in favor of defendant entered upon an order dismissing plaintiff’s complaint on trial. The action was brought to recover damages for an alleged breach of a contract to deliver a quantity of plaster stone.

This was an action by plaintiff, as receiver of the Ocean Dational Bank, upon a bond executed by defendant, of which the following is a copy: “ Whereas, W. F. Gleason has opened an account in the Ocean Dational Bank, and will offer notes and acceptances there for discount; “Dow, then, I, the undersigned, Charles W. Copeland, am held and firmly bound unto said Ocean Dational Bank in the sum of $2,000, in money of the United States, to be to them, their successors and assigns,…

This was an action of trespass. The facts sufficiently appear in the opinion. The land in question never was a highway. (Powers v. Suff. Mfg.

This was an action of ejectment. Both parties claimed under the will of Andrew Christie, executed February 19, 1824; the material clause of which is as follows : “ First.

(Reported below, 6 Hun, 186.) This action was .brought to recover $76,025 currency alleged to have been received by defendant as the purchase-price of $50,000 of gold sold and delivered by it as agent of plaintiffs.

This action was brought to foreclose a mechanic’s lien. The facts appear sufficiently in the opinion. The sheds erected on defendants’ piers came under the provisions of chapter 669, Laws of 1872. (Laws 1875, chap. 249, § 1; Potter’s Dwarris, 144, Rule 7.)

(Reported below, 6 Hun, 600.) This action was brought to recover damages for injuries to plaintiff’s cattle. The evidence tended to show these facts: In September, 1872, the plaintiff was in possession of a farm of land near Ilion, in the county of Herkimer, on which he had a herd of cattle. The defendant’s railroad ran along the southerly side of the farm adjoining a public highway which lay between the railroad and the farm.

<p>Upon the death of one of the makers of a joint promissory note, who signed simply as surety, his estate is absolutely discharged from the payment thereof, both in law and equity.</p> <p>It is immaterial that the surety died after a joint judgment against him and his principal; nor is his position affected by the fact that an appeal on his part was pending at the time of his death, and that he had given an undertaking upon such appeal, providing for the payment of the judgment if affirmed.</p> <p>Where, therefore, a motion was made to substitute the personal representatives of a surety, against whom and his principal a joint judgment had been obtained, as defendant in his stead, he having died after affirmance by the General Term, and during the pendency of an appeal to this court, upon which appeal an undertaking had been given staying execution, held, that the motion must be denied; that there could be no propriety in the substitution, as the judgment could never be enforced or properly affirmed; that the appeal could not be continued simply for the purpose of enabling the plaintiff, in case of affirmance, to bring an action upon the undertaking, as there could be no liability upon the undertaking after the judgment had been discharged, either by act of the parties or operation of law.</p>

(Reported below, 6 Hun, 613.) This action was brought upon an account stated ; the complaint alleged various errors and omissions in the account which it asked to have corrected. Richard T. P. Pulteney, the original plaintiff, died during the pendency of the action, and plaintiff, his administrator, with will annexed, was substituted.

(Mem. of decision below, 6 Hun, 646.) This action was brought to recover a balance alleged to be due upon a contract. The defendant had a contract with the New York Central and Hudson River Railroad Company to do the work and furnish certain material for additional tracks from Schenectady to Fort Plain. The defendant sublet to the plaintiff certain sections on that contract. The specifications are the same in the contract and in the subcontract.

(Reported below, 5 Hun, 1.) This action was brought to recover the amount of four policies of insurance issued by the defendant upon the life of William F. Diefendorf for his benefit, and by him assigned to the plaintiff. The policies were issued in 1867; the first one in July, 1867. The assured died on the 21st day of March, 1871.

(Reported below, 8 J. & S., 328.) This action was brought to set aside an assignment made by the defendants Joseph Morton, Leon Weil and Alphonse Weil, composing the firm of Weil Brothers & Co., to defendant Austin Baldwin, for the benefit of creditors. The ground of the action was that the schedules made by the assignors were not properly verified. It appeared that in June, 1874, plaintiff commenced an action against said copartners upon a partnership obligation.

(Reported below, 5 Hun, 602.) This action was brought to recover damages for the flooding of plaintiff’s house and premises, alleged to have been occasioned by the neglect of defendant to provide a sewer or outlet to carry off the water from the street gutter in front of plaintiff’s premises.

(Reported below, 6 Hun, 546.) This action was brought to recover damages for injury to the contents of certain trunks belonging to plaintiff. Plaintiff’s proof on the trial was in substance as follows: The plaintiff was a wholesale clothing merchant in Rochester. His son Marcus was traveling for him as agent, and selling his goods. On the 18th of August, 1813, he was at Flint, Michigan.

(Reported below, sub nom. McMillam v. 8. L. G. amd W. Go., 5 Hun, 12.) This was an action to foreclose a.mechanic’s lien. The original plaintiff was George McMillan; after judgment, he assigned it to the present plaintiff, who was substituted as plaintiff. In July, 1871, defendant contracted with S. B. Coe for the erection, by the latter, of a building upon its premises, in Tates county.

The prisoner and Richard Sheffield, the deceased, were convicts confined in Auburn State prison. The homicide was committed, in one of the shops of the prison, with a case knife, which the prisoner had previously ground down to a point; this he plunged into the heart of the deceased. The facts pertinent to the different questions presented are set forth sufficiently in the opinion.

<p>The fact that a railroad corporation is in possession of lands as lessee under an unexpired lease is no impediment to proceedings on its part under the general railroad act to acquire title in fee; the condemnation of the title does not impair the obligation of a covenant to surrender, or any other covenant in the lease, but simply transfers them with the title.</p> <p>Where, after the commencement of proceedings by a railroad corporation to acquire title to lands, it leases its road to another company for a long term of years, the lease does not, per se, operate to abrogate the proceedings; the land sought to be condemned may be as necessary, for the purposes of the corporation instituting the proceedings, after as before the lease; but if the necessity is only in favor of the lessee, it is competent for it to continue the proceedings in the name of the lessor.</p>

Appeal by Mary E. Price from an order of the General Term of the Supreme Court in the first judicial department, reversing an order of Special Term which set aside the report of a referee and denied the prayer of Henry S. Hewson, purchaser, to be refunded certain moneys paid by him upon the purchase of the interest of said Mary E. Price, an infant. Said order appealed from, also granted the prayer of said petitioner.

(Reported below, 5 Daly, 510.) This action was brought to recover damages for the alleged breach of a contract of sale on the part of the defendants.

Radcliffe and others, the owners of real estate sought to he condemned under the general railroad act for the purposes of said company. (Reported below, 8 Hun, 34.) Proceedings were instituted by said corporation under said act in October, 1875.

In January, 1869, the plaintiff herein, whp was the guardian of Matilda Lotten, an infant, had in his hands, as said guardian, $4,000 belonging to his ward. He made and executed, individually, to himself, as guardian, a bond conditioned to pay that sum, and a mortgage upon certain premises owned by him, to secure the same.

This action was brought to foreclose a mechanic’s lien upon certain premises in the city of New York, the legal title to which was in defendant Hayward.

(Mem. of decision below, 5 Hun, 554.) TMs action was upon a policy of insurance issued by defendant, insuring, among other things, plaintiff’s dwelling-house.

The complaint alleged, in substance, that Joshua Whipple, in his lifetime, caused certain real estate, specified and described in the complaint, which had been purchased and paid for by him, to be conveyed to defendant, Ruth D. Wilcox, which real estate Whipple improved at his own expense, and at great cost, and occupied up to the time of his death, said conveyance being so made and accepted for the purpose of hindering, delaying and defrauding the creditors of said.

(Reported below, 8 J. & S., 126.) This action was brought to recover damages for injuries alleged to have been occasioned to plaintiff’s premises, in the city of New York, by the flow of water and filth from defendant’s premises adjoining.

This was an action upon a policy of fire insurance issued by defendants to Oaldey, Clapp & Co., upon property at Horseheads, New York. After loss, the claim was assigned to plaintiffs intestate. The facts pertinent to the questions discussed appear sufficiently in the opinion. The judge erred in submitting the question of waiver to the. jury. (Underwood v. Farmers’, etc., Ins. Co., 57 N. Y., 500; May on Ins., 618, 621; Sec. Ins.

This action was upon an endowment policy issued by defendant in 1867, upon the life of plaintiff for $1,000, payable in six years. The answer admitted the issuing of the policy, and set up as a counter-claim various loans made by defendant to the plaintiff upon the policy amounting to $204.41, and alleged an offer to pay the balance. The court directed a verdict for the full amount of the policy with interest, amounting to $1,083, and a verdict was rendered accordingly.

(Reported below, 8 J. & S., 406.) This action was brought to set aside a sale at public auction made by the defendant, the Vermont Copper Mining Company, of 10,941 shares of the stock in the company belonging to plaintiffs’ testator, and to restrain the company from transferring the stock to the purchaser.

Appear 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 and affirming an order denying a motion for a new trial.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, modifying a judgment in favor of plaintiff entered upon the report of a referee, and affirming it as modified. (Reported below, 6 Hun, 293.)</p> <p>This action is brought to recover of the defendant an alleged unpaid balance of his subscription to the capital stock of the plaintiff.</p> <p>The corporation was attempted to be created under the general law of 1848, authorizing the formation of corporations for manufacturing, mining, mechanical and chemical purposes. The certificate, under and by virtue of which the defendant and others undertook to create the corporation, was filed in September, 1863. The purposes specified in the certificate were stated as follows : “ For the purpose of building tanks of iron or other materials, and storing and keeping for hire oil of various kinds, and for doing all such other business as may be pertinent to or connected with the storage of oil, petroleum or other articles, for compensation.”</p> <p>The defendant claimed that the act of 1848 did not authorize the creation of a corporation for the purposes expressed in the certificate, and that therefore his subscription was void.</p> <p>Defendant was one of the originators of the enterprise, and for several years one of the trustees, and took an active part in the organization and management of the company, and contracted with it as a lawfully organized corporation. The corporation became insolvent, and after the commencement of the action a receiver was appointed, who thereafter prosecuted the action in his own behalf and for the benefit of creditors. The only subscription made by the defendant was to the certificate whereby the corporation was created, and placing opposite to his signature the number (250) of shares taken by him. Fifty shares of the 250 subscribed for by the defendant were paid for by him, and by his direction transferred to an iron manufacturing company of which he was the president. After the organization of the company the defendant made an arrangement with John Egerton, with the consent of the company, whereby Egerton agreed to take off the hands of the defendant 200 shares of this stock, hy giving his notes to he indorsed by the defendant for the amount. Egerton gave three notes in July, 1864, indorsed by the defendant for $2,500 each, and the defendant thereupon gave an order to the company that on the payment of those notes an equal amount of stock should he transferred to Egerton. The three notes were paid and seventy-five shares of the stock were transferred to Egerton, in pursuance of the order of the defendant. In October, 1864, Egerton gave three other notes, indorsed by the defendant ; one for about $1,500, which was given for the interest which had accrued on the unpaid subscription of the defendant, and two others, due in January and February, applicable to the purchase of the stock. With these last notes the defendant gave an order on the company that, on the payment of the three notes, fifty more shares of the stock should he transferred to Egerton, and also an order on the company to pay Egerton the dividend on the whole 200 shares. The $1,500 note was paid. The larger notes were renewed several times, with the indorsement of the defendant, until finally one of the notes so renewed was given up to Egerton, and a new note for an extended time, not indorsed hy the defendant, but by another party, was received hy the company as a substitute for the note so surrendered. The case does not show that this was with the knowledge or consent of the defendant.</p> <p>The remaining $2,500 note was renewed, with interest added, until it amounted to $2,790.74, for which sum a note was given hy Egerton, indorsed by defendant. This was transí erred by the corporation to one Power, as collateral security for a claim against the company. He brought suit against defendant thereon before the commencement of this action, which was pending at the time of trial. But on the trial it was produced by the plaintiff, and with the consent of Power offered for cancellation.</p> <p>The referee directed judgment for the whole amount of unpaid subscription, with interest, not giving credit for either of the two $2,500 notes or their renewals. The General Term modified the judgment by deducting therefrom the amount of the $2,500 note, with interest, which was taken up as above stated, and the note of Edgerton, indorsed by a third person, substituted therefor.</p> <p>Further facts appear in the opinion.</p> <p>Plaintiff was never legally organized for any lawful purpose. (Makelumne M. Co. v. Woodbury, 14 Cal., 424; 14 N. Y., 546; N. Y., D. and C. Co. R. R. Co. v. Mabbett, 58 N. Y., 397; M. and T. P. R. Co. v. Lapham, 18 Barb., 312.) The declaration in the certificate, as to the number of shares taken, does not amount in law to a subscription. (Burrow v. Smith, 10 N. Y., 550; 16 id., 457, note; 6 Pick., 23; 31 Me., 470; 24 Barb., 518; 24 N. Y., 150; 1 Cai., 381; 6 Mass., 40; 8 id., 138; 14 id., 286; A. & A. on Corp., 479.) The agreement that defendant should not be held for more than fifty shares, was executed and should be upheld. (Redf. on Railways, 83, §§ 7, 2, 3 ; id., §§ 3-7; Dorris v. French, 11 Sup. Ct. R., 292; 41 Pa. St., 64; 21 Ill., 96; 13 id., 576; 10 Barb., 260; 2 id., 294; 16 Wal., 390.) The legal effect of the abandonment by defendant of its business would be to defeat this action. (15 B. Mon., 21; 18 Barb., 312; Redf. on Railways, 80, § 6, p. 94.) If defendant’s alleged subscription were valid, the most that could be done would be to sue him with all other non-paying subscribers, to compel pro rata contributions to pay debts. (Mann v. Pentz, 3 N. Y., 415-422; 25 id., 214; 12 Abb., 268; 1 Lans., 381; 2 id., 12.)</p> <p>No demand of payment was necessary. (Spear v. Crawford, 14 Wend., 20; Palmer v. Lawrence, 3 Sand., 164; N. R. R. R. Co. v. Miller, 10 Barb., 260 ; Sch. R. R. Co. v. Thatcher, 11 N. Y., 103 ; Buffalo, etc., R. R. Co. v. Mason, 16 id., 452; Rens., etc., R. R. Co. v. Borst, 31 id., 535; Dorris v. French, 11 N. Y. Sup. Ct., 292.) Defendant cannot now be permitted to allege any defect in plaintiff’s organization. (Schen. R. R. Co. v. Thatcher, 11 N. Y., 103; Aspinwall v. Sacchi, 57 id., 331; Buffalo, etc., R. R. Co. v. Carey, 26 id., 75; White v. Ross, 15 Abb., 66 ; O. , etc., P. R. Co. v. Rust, 5 How., 390; Sands v. Hill, 42 Barb., 654; White v. Coventry, 29 id., 305; Hyatt v. Esmond, 27 id., 601; Cooper v. Shover, 41 id., 51; Dorris v. Sweeny, 64 id., 636; 60 N. Y., 463; 11 N. Y. Sup. Ct. R., 292 ; id., 164.) The contract of subscription merged all prior and contemporaneous negotiations, and paroi testimony is not proper to alter and vary it. (Thorp v. Ross, 4 Keyes, 536; Riley v. City of Brooklyn, 46 N. Y., 444; Westcott v. Thompson, 18 id., 363; Morton v. Woodruff, 2 id., 153 ; Van Keller v. Schulting, 50 id., 108; Mayor, etc., v. Brooklyn F. Ins. Co., 3 Abb. Ct. App. Dec., 251; W. M. R. R. Co. v. Eastman, 34 N. H., 124; Pittsburgh R. R. Co. v. Stewart, 41 Pa., 54; Conn., etc., R. R. Co. v. Bailey, 24 Vt., 465; Erie, etc., R. R. Co. v. Patrick, 2 Keyes, 256 ; Burke v. Smith, 16 Wall., 390; Piscat. Ferry Co. v. Jones, 39 N. H., 491.) The fraudulent representations of the projectors of the company could not affect the subscription or release the subscriber. (Oglevie v. Knox F. Ins. Co., 22 How. [U. S.], 380; Buffalo, etc., R. R. Co. v. Dudley, 14 N. Y., 336 ; Kelsey v. N. L. Oil Co., 45 id., 505; Litchfield Bk. v. Church, 29 Conn., 137; Graff v. Pitts., etc., R. R. Co., 31 Pa., 489.)</p>

<p>A common carrier of passengers may establish on his car or vessel an agency for the delivery of passengers’ baggage, and may exclude all other persons from entering upon it for the purpose of soliciting or receiving orders from passengers in competition with such agency.</p> <p>Plaintiff, an expressman, sought passage upon defendant’s boat for the purpose, among other things, of taking, while on the boat, orders from the passengers for the delivery of baggage. Defendant had granted the privilege of transacting this business on the boat to another, and as plaintiff continued it after having been directed to desist, and refused to promise to discontinue it, defendant caused him to be ejected from its boat, and refused him passage. In an action to recover damages, held, that defendant’s action was justifiable, and that it was not liable.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, modifying a judgment entered upon the report of a referee. (Hem. of decision below, 5 Hun, 114.)</p> <p>This action was brought to have a bond and mortgage executed by plaintiff to William J. Lever, originally one of the defendants herein, and whose personal representatives are now parties defendant, declared void, and that the same be set aside and canceled of record. The referee found the following facts:</p> <p>That in Harch, 1869, the plaintiff Seth Baker applied to William J. Lever to leam where a loan of some money could be made, and was by him informed that.his son (the defendant John J. Lever) had $500 which the latter might loan; that afterwards said plaintiff called upon the father and son and then understood from them that the loan of $500 would be made by John J. Lever, to him, if he would purchase of William J. Lever certain capital stock of the Andover Woolen Manufacturing Company; that Baker agreed to purchase six shares of $100 each, of said capital stock, for the sum of $500, and thereupon the said John J. Lever loaned to him the sum of $500, and .the said William J. Lever sold to him the said stock, and delivered to him certificates thereof, with transfers to him indorsed' thereon, and the plaintiff Seth Bake]’, on the 15th' of March, 1869, executed his bond to the defendant John J. Lever, conditioned for the payment of the $500 loaned, and interest, and with his wife Elizabeth the plaintiff Baker executed a mortgage to secure the payment of the said bond to the said John J. Lever, and at the same time the said plaintiff Seth Baker executed his other bond of that date, conditioned for the payment to William J. Lever $500 (the price of such stock) and interest, and with his said wife executed a mortgage to the said William J. Lever, who afterwards, on the 17th day of March, 1869, assigned the same to his son, the defendant John 'J. Lever as a gift or advancement to him, as was contemplated and understood when the loan and sale of stock were made as aforesaid, which last mentioned bond and mortgage are the ones in question. That at the time of the sale of the said stock to Baker, he believed that it was worth the price he agreed to and did pay therefor; that in fact, the said stock was then worth and saleable for only the sum of thirty per cent of its nominal value, and continued saleable for that sum for the period of four months thereafter; and that afterward the property of the said company was sold and the proceeds thereof were not more than sufficient to pay liabilities of the company, and said stock and all the capital stock of the company became and was thereafter actually worthless. That the said Andover Woolen Manufacturing Company was organized in 1866; that said William J. Lever was one of the original subscribers to the capital stock, and had been a stockholder from that time; that he was president of the company from 1867 to May, 1868, and at the time of the sale by him of the said stock to the plaintiff, he was familiar with and knew the condition of the company; that up tc that time the business of the company had been operated at a loss, and he was advised that the liabilities of the company, exclusive of the capital stock, nearly equaled the value of its property, real and personal, and the plaintiff was ignorant of the actual condition of the affairs of the company; that the value of the stock, the valuation and prospect of the company were at the time of the negotiation and sale in question the subject of conversation between the plaintiff and the said William J. Lever, and the latter then suppressed and omitted to state to the plaintiff the facts in relation to the situation of the company of which the said William J. Lever had knowledge, and thereby induced the plaintiff to believe and understand that the value of the said six shares of stock was $500, and those facts within the knowledge of the said William J. Lever, which affected the value of the said stock, were then suppressed by the latter with the intent and for the purpose of inducing the plaintiff to make the purchase at the price aforesaid, and the latter was thereby induced to make the purchase and give the bond and mortgage aforesaid, and that such transaction was fraudulent on the part of the said William J.- Lever. That the plaintiff, Seth Baker, has held the said stock since such transfer, and on the 16th day of November, 1872, he offered to return and deliver the certificates to William J. and John J. respectively, and tendered the same and offered to make transfers thereof to such one of them as they might advise or direct, and demanded that the said bond and mortgage be surrendered up and canceled; that the defendants, and each of them, refused to accept the return and transfer of the said stock, and the said defendant John J. Lever also refused to surrender up or cancel the said bond and mortgage.</p> <p>The referee found, as conclusions of law, among other things:</p> <p>That the said sale of the stock, the price of which the said bond and mortgage were given to secure, was fraudulent on the part of the said William'J. Lever. That on the 16th day of November, 1862, the plaintiff was not entitled to a surrender and cancellation of the said bond and mortgage upon the demand thereof then made by him; but that he would then have been entitled to such surrender and cancellation if he had then tendered or offered to pay to the defendant, John J. Lever, $180 and interest thereon, from March 15, 1869, less two payments of thirty-five dollars each, applied as of the time they were made respectively. That on payment to the said John J. Lever of the sum produced as last aforesaid, amounting at the date of this report to $160.27, with interest thereon from the date hereof, and the defendant’s costs of this action, the said plaintiff will be entitled to have the said bond and mortgage delivered up and canceled; and, if the said mortgage has been or shall be recorded, then upon such payment the plaintiff will also be entitled to have satisfaction thereof acknowledged and the said mortgage satisfied of record.</p> <p>The General Term adjudged that the judgment be reversed so far as it required the payment of thirty per cent and costs, and that the judgment be modified and entered that the bond and mortgage described in the complaint are fraudulent and void ; and that the same be delivered up to the plaintiff Seth Baker, and canceled, and that the defendant John J. Lever execute and deliver satisfaction of the mortgage to said Seth Baker.</p> <p>The delay of four years in offering to rescind was a confirmation of the contract. (Fisher v. Friedenhall, 21 Barb., 82; Roth v. Palmer, 27 id., 654; Mattawan Co. v. Bentley, 13 id., 644; Wheaton v. Baker, 14 id., 594; Voorhies v. Earl, 2 Hill, 288; Kennedy v. Thorp, 51 N. Y., 174; Bk. of Beloit v. Beale, 34 id., 475; Goss v. Mather, 2 Lans., 285; Baker v. Robbins, 2 Den., 138; Baker v. Spencer, 47 N. Y., 562; Ross v. Titterton, 6 Hun, 284; Bruce v. Davenport, 1 Abb. Ct. App. Dec., 237; Upton v. Tribilcock, 13 Alb. L. J., 27.) Lever being an innocent purchaser for value of the bond and mortgage, as against him the right to rescind could not exist. (Winne v. McDonald, 39 N. Y., 240; Dows v. Greene, 24 id., 644; Fassett v. Smith, 23 id., 252; Lacker v. Rhodes, 45 Barb., 499.)</p> <p>A person deceived by the fraudulent misstatements of another owes him no duty of active vigilance in the discovery of the fact that they are false. (Baker v. Spencer, 47 N. Y., 562; Ketchum v. Traxwell, 7 Alb. L. J., 137; Brown v. Post, 1 Hun, 304; Neblett v. McFarland, Alb. L. J., Feb. 19, 1876, p. 134.)</p>

(Mem. of decision below, 6 Hun, 655.) This action was brought to foreclose a mechanic’s lien, filed under and in accordance with the provisions of chapter 489, Laws of 1873.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, aíBrming a judgment in favor of plaintiffs entered upon the decision of the court at Special Term. (Reported below, 5 Hun, 638.)</p> <p>This action was brought upon certain alleged guaranties executed by defendant indorsed upon the bonds of the Boston, Hartford and Erie Railroad Company.</p> <p>In October, 1867, defendant and the said The Boston, Hartford and Erie Railroad Company entered into a contract whereby the former agreed to guaranty the payment of interest upon a certain amount of the bonds of the latter in consideration of the latter constructing a road connecting the roads of the two companies, and agreeing to conduct the business passing from one road to the other on joint account.</p> <p>Hnder this agreement the latter company issued its bonds of $1,000 each, with interest coupons or warrants attached, pboth negotiable. Indorsed upon each was a guaranty in the following form:</p> <p>“ In consideration of the provisions of a contract of even date for the use of the Boston, Hartford and Erie railroad by the Erie Railway Company, the Erie Railway Company hereby agrees with the holder of this bond that the several interest warrants hereto attached shall be paid as they respectively mature.</p> <p>“ Witness the seal of the Erie Railway Company and the signature of its secretary, at the city of New York, the 8th day of October, 1867.</p> <p>“HORATIO H. OTIS, Secretary.”</p> <p>Defendant subsequently became possessed of all these bonds, and those in question in this action were transferred to John Arnot, plaintiffs’ testator. The circumstances under which he acquired title and further facts pertinent to the question presented are set forth sufficiently in the opinion.</p> <p>Corporations have only such powers as are expressly conferred upon them by law and as are incidental to the principal authority and necessary to its due execution. (Leavitt v. Palmer, 3 N. Y., 19; Talmage v. Pell, 7 id., 328; People v. Utica Ins. Co., 15 J. R., 358; N. Y. F. Ins. Co. v. Sturges, 2 Cow., 664; N. Y. F. Ins. Co. v. Ely, id., 678; Bard v. Chamberlain, 3 Sand. Ch., 31; Cutskill Bk. v. Gray, 14 Barb., 471.) In all actions by or against a corporation founded on an executory contract the defence that it is ultra vires, in the sense that the corporation had no authority of law to enter into it, is open to either party. (3 N. Y., 19; Abbott v. B. and C. Stbt. Co., 1 Md. Ch., 542; Green v. Seymour, 3 Sand. Ch., 285; White v. Franklin Bk., 22 Pick., 181; L. and F. Ins. Co. v. Mechs. F. Ins. Co., 7 Wend., 31; N. R. Ins. Co. v. Lawrence, 3 id., 483; Bangor Boom Co. v. Whiting, 29 Me., 123; Root v. Goddard, 3 McL., 102; Orr v. Lacy, 2 Doug., 230.) The alleged guaranty not being within the express or implied authority of defendant’s company was void and cannot be enforced. (Root v. Goddard, 3 McL, 102; M., etc., Assn. v. Meriden Agency, 24 Conn., 159; Fisher v. N. Y. C. and H. R. R. R. Co., 46 N. Y., 653; Midland R. Co. v. G. W. R. Co., 8 Ch. App., 841; Pearce v. M. and L. R. R. Co., 21 How. [U. S.], 441; Zabriski v. Cleve., etc., Co., 23 id., 398; Coleman v. E. C. Co., 10 Beav., 1; Berry v. Yates, 24 Barb., 199; M. Svgs. Bk. v. M. Ag. Co., 24 Conn., 159; H. and N. H. R. R. Co. v. Croswell, 5 Hill, 383; Wiley v. First Nat. Bk., 14 U. S. L. Reg., No. 6; Stevens v. R. and B. R. R. Co., 29 Vt., 544; 7 N. Y., 328; G. E. R. Co. v. Tanner, 8 Ch. App., 152; B. P., etc., Co. ex parte Grady, 9 Jur. [N. S.], 631; Albert v. Svgs. Bk. of Balt., 1 Md. Ch., 407; Ohio L. Ins. Co. v. Mer. Ins. Co., 11 Humph., 1.)</p> <p>The contract between the Boston, Hartford and Erie Railroad Company and defendant was not ultra vires. (Sutton’s Hospital, Coke R., part 10 ; Brady v. Mayor, etc., 1 Barb., 590; Leavitt v. N. Am. Bkg. Co., 5 id., 9; Curtis v. Leavitt, 15 N. Y., 219, 262; Olcott v. Tioga R. R. Co., 27 id., 546; Feeny v. People F. Ins. Co., 2 Robt., 599; Barry v. Mech. Ex. Co., 1 Sandf. Ch., 280; Ketchum v. City of Buffalo, 14 N. Y., 375; Town of Middletown v. R. R. Co., 43 How., 481, 489; Green’s Brice’s Ultra Vires, 38-40, and note; id., 318-336, and notes ; C. P. and I. R. R. Co. v. Ind. and B. R. Co., 5 McL., 450 ; 1 Den., 337; Burcle v. Eckart, 3 N. Y., 132; Story’s Con., 41, 48; Brice on Ultra Vires, 284, 291; Green’s Ultra Vires, 327; W. R. Co. v. G.W. R. Co., L. R., 8 Ch. App., 841; Rich v. A. R. C. Co., L. R., 9 Exch., 224, 263; Bissell v. M. S. and N. J. R. Co., 22 N. Y., 259; Buffett v. T. and B. R. Co., 40 id., 168; Parish v. Wheeler, 22 id., 494; Fisher V. N. Y. C., etc., R. R. Co., 46 id., 644, 653; O. and L. C. R. R. Co. v. Vt. and C. R. R. Co., 6 T. & C., 489 ; Zabriskie v. C., C. and C. R. R. Co., 23 How. [U. S.], 382; Moss. v. R. L. M. Co., 5 Hill, 137; N. Y. F. D. Co. v. N. J. O. Co., 3 Duer, 648; Akin v. Blanchard, 32 Barb., 527; Burtis v. B. and S. L. R. Co., 24 N. Y., 269; Burchfield v. N. C. R. R. Co., 57 Barb., 589; Carey v. C. and T. R. R. Co., 29 id., 57; Root v. G. W. R. Co., 45 N. Y., 524; Olcott v. Tioga R. R. Co., 27 id., 560; Laws 1851, chap. 19, § 28, sub. 6; Laws 1854, chap. 282, § 13; Laws 1855, chap. 302; Town of M. v. R. and O. R. R. Co., 43 How., 490.) It was proper for defendant to guaranty the interest maturing on the bonds in question. (15 N. Y., 266, 267; M. Bk. Assn. v. N. Y. L. Co., 35 id., 506; 27 id., 560; Nelson v. Eaton, 26 id., 410; Parrish v. Wheeler, 22 id., 494; 23 How. [U. S.], 382; G. B. , Ultra Vires, 66, 115-123.) The presumption, in the absence of proof to the contrary, is that the bonds were not issued in violation of the terms of the contract. (Akin v. Blanchard, 32 Barb., 527; G. B., Ultra Vires, 40, 430; Chautauqua Co. Bk. v. Risley, 19 N. Y., 382.) The makers of the bonds are estopped from setting up a lack of power. (Bissell v. M. S. and N. J. R. R. Co., 22 N. Y., 258; id., 494; St. John v. Roberts, 31 id., 441; Bk. of Genesee v. Patchin Bk., 13 id., 315; Erwin v. Downs, 15 id., 576; Cogill v. Am. Ex. R. R. Co., 1 id., 113; Remsen v. Graves, 41 id., 471; Oakley v. Boorman, 21 Wend., 588; McKnight v. Wheeler, 6 Hill, 492; 35 N. Y., 505; 27 id., 560; 25 id., 496.) The same rules governing other commercial paper are applicable to these bonds. (25 N. Y., 496 ; Bk. of Rome v. Vil. of Rome, 19 id., 20; Welch, v. Sage, 47 id., 143; Evertsen v. Nat. Bk. of Newport, 4 Hun, 692; Brown v. Leavitt, 61 N. Y., 113; Newman v. Frost, 52 id., 422; Youngs v. Lec, 12 id., 554; Day v. Saunders, 37 How. Pr., 534; 27 N. Y., 560; 29 id., 220; 24 id., 269; 41 Barb., 25; 19 N. Y., 382; 35 id., 505; Belmont Branch Bk. v. Hoge, 35 id., 68; Magee v. Badger, 34 id., 249 ; 47 id., 143.)</p>

The prisoners were indicted for stealing the sum of ninety dollars, the property of Christian Olason. He was on his way from Nebraska to Hamburgh, in Germany, and took the train from Philadelphia to New York, in the progress of his journey.

(Reported below 8 Hun, 275.) The facts are sufficiently set forth in the opinion. The charges of relator were proper and legal charges against the county. (3 R. S. [Banks’ 5th ed.], 1050, 1051, § 22 [m. p.] 752, 1062; Crocker on Sheriffs, 418, 419; 2 R. S. [Edm. ed.], 780; People ex rel. Hall v. Suprs. of N. Y., 32 N. Y., 473; 1 R. S. [Banks’ 6th ed.], 927.) Ro item of the relator’s claim could be a county charge unless by provision of the statute. (People ex rel.

(¡Reported below, 8 Hun, 334.) The relators alleged that they weré duly elected aldermen and assistant aldermen of the city of Sew York, pursuant to the city charter, and took the oath of office; that the boards of aldermen and assistant aldermen duly organized as such, but that the mayor refused to recognize them; that the act chapter 335 Laws of 1873 abolishing the board of assistant aldermen and establishing what is termed the minority system of electing the board of…

(Reported below, Y Hun, 15.) This was an action to recover back a sum alleged to have been overpaid by mistake by plaintiffs’ testator, Edward J. Wilson, upon the purchase by him of a piece of land of defendant. Prior to October 9, 1868, plaintiffs’ testator and defendant entered into negotiations for the purchase by the former of the latter of a piece of land.

Ireland, deceased. The fourteenth clause of the will of deceased provided as follows: “I hereby nominate and appoint Israel Corse, Esquire, my grand nephew, William Johnson, Esquire, and John B. Ireland, Esquire, executors and trustees of this my will, and I further direct that said John B. Ireland shall receive a commission of six per cent upon all moneys collected by him.” The testator died seized of a large amount of real estate and of personal property.

Appeal, from judgment of the General Term of the Supreme Court in'the fourth judicial department, affirming a judgment (except as to costs) in favor of plaintiff entered upon the report of a referee. (Reported below, 2 Hun, 520.) This action was upon the indorsement by defendant’s testator, Maria F. Bergen, of a promissory note for $1,000, made by W. N. Cross, and upon which said Maria F. Bergen was an accommodation indorser.

(Reported below, 6 Hun, 49.) The nature of the action and the facts appear sufficiently in the opinion. Any construction of doubtful or apparently inconsistent clauses which will be in harmony with the general scheme of a will is resorted to, and availed of, to preserve its dispositions. (Roper on Legacies, 1460, 1461; Sherratt v. Bentley, 2 M. & R., 149; Smith v. Pybus, 9 Ves., 567; Collet v. Lawrence, 1 Ves.

This action was brought to obtain a construction of the last will and testament of Martin Kalbfleiseh, late of the city of Brooklyn, deceased. Said testator died in February, 1873, leaving a will dated January 18, 1873, and a codicil thereto dated February 4, 1873, both of which were duly admitted to probate. The following is a copy of the material portions of the will: “ First.

<p>So long as the owner of property violates no duty which he owes to others or to the State, he cannot he called in question for the manner in which he uses or manages it; and if, in the lawful exercise of his right to so use it, another is injured, he is not liable.</p> <p>Plaintiffs intestate, P., a lad eighteen years old, lost his life hy falling into a vat of boiling liquid in defendants’ saltpeter factory where he had gone hy direction of his employer to pay a bill due one of the defendants. In the factory were a large number of vats and tanks. The vat into which the deceased fell was at one side and under a passageway nine feet wide at the angle of its intersection with another leading to defendants’ office. There was an opening to the vat, in the floor, closed by a cover, which was removed at the" time of the accident. A sky-light was directly over the passageway at this point, making it very light in the • daytime. The deceased did not enter the factory at the usual entrance, but crossed an adjoining lot and canal, climbed a fence and entered by a back door, and, in passing along the passage to the office, fell into the vat. Defendants’ workmen were in the habit of entering the factory in the same way P. did, and occasionally others did so also. On each of the doors in front’was a sign “no admittance” save one where the sign was “no admittance except on business,” at which a person was usually in attendance to admit persons to the factory. In an action to recover damages, held, that defendants were not liable; that P., if not a trespasser, was, at most, in the factory by defendants’ sufferance, and took the risks attendant upon being there in the condition in which the factory was; that no duty rested upon defendants to guard the vat for the protection of the deceased.</p>

(Reported below, 8 Hun, 30.) Application was made against twenty-two owners of different parcels of land. One petition was presented, entitled as above, and one answer was put in for all the owners on trial of the issues. It was stipulated that the evidence taken in one case should be considered as taken in all.

■ Appeal from order of the General Term of the Superior Court of the city of New York reversing a judgment in favor of defendant, entered upon an order dismissing plaintiff’s complaint on trial, and granting a new trial. This action was brought to recover damages for the alleged negligence of defendant, causing the death of plaintiff’s intestate. The plaintiff left London, England, in July, 1870, and since the twenty-seventh of that month has resided in the city of New York.

(Reported below, 8 Hun, 9.) The nature of the action and the facts are sufficiently set forth in the opinion. The child of the deceased son took the-whole of his share.

(Reported below, 7 Hun, 195.) The action was to recover for the alleged conversion of the avails of goods consigned by plaintiff'to defendants for sale, and by them sold, and instead of being remitted according to agreement, converted. The General Term reversed the order upon the ground that the preponderance of proof was with the defendants, and established that the parties treated the indebtedness simply as an ordinary liability on contract.

The examination was had before a justice of the Supreme Court; the direct examination was completed and the cross-examination commenced, but, inconsequence of the indisposition of the witness, was postponed from time to time, and the deposition was finally certified to by the judge, returned and filed. Defendants, Samuel A. Wood and others, moved that the deposition be suppressed, which motion was denied.

<p>The provisions of the Revised Statutes giving a widow damages for withholding dower (1 R. S., 743, § 19, et seq.), were intended to prescribe the sole rule to determine the amount thereof; and by and under the statute alone can she now recover, either at law or in equity.</p> <p>As to whether an executor of an heir at law has the right to charge the estate of his testator, or expend the assets in his hands, for the payment of arrears of dower, where dower has not been assigned, guare.</p> <p>J. died in 1856, intestate, leaving a widow and five children. Gr. and D., two of the children, bought out the interests of the others in certain real estate of which J. died seized, and subsequently G. conveyed his interest to D. D. died in March, 1871, leaving a will of which G. was executor; he, in January, 1873, allowed to the widow of J., for the arrears of her dower, the value of the use of one-third of the real estate for six years prior to the testator’s death, and gave his promissory note to her for the amount, deducting a sum paid by the testator in his lifetime. No dower had been admeasured or demanded, and no action to recover the same had been commenced. The amount of the note was allowed to the executor on settlement of his accounts by the surrogate. Held, error; that the allowance, if it could be sustained at all, must stand in the place of a judgment for damages; and, as the said statute (§ 30) only allows damages to be estimated for six years prior to a judgment therefor, the allowance could only be for a period beginning six years prior to the time it was made, and ending at the testator’s death, about four years and two months; also, that as, by said statute (§20), the widow is only entitled to recover damages of other persons than the heirs of her husband, from the time of demanding dower of them, and as, although the testator was an heir, yet he inherited but an undivided one-fifth, and derived title to four-fifths of the lands by grant, for the value of the use of those four-fifths he was liable only from the time demand was made; and, no demand having been made, he was only liable for one-fifth of the use for the period above stated; and that, therefore, the executor had no authority to pay the widow her damages out of the assets of the estate, upon the basis adopted, still less to charge the estate by an executory contract to make such payment.</p> <p>In the deed from the three other children to G. and D., it was stated to be the intent to leave the right of dower in the lands to be adjusted and arranged by the grantees. EM, that the obligation thus imposed upon the grantees was joint, and G. had no right or power, as executor of the estate of D., to put the whole burden upon it to the relief of himself.</p> <p>A surrogate has jurisdiction to hear and adjudge upon a claim of an executor against the estate of his testator, whether the same be disputed or not.</p> <p>A petition of appeal from a surrogate’s decree settling the accounts of an executor, allowing, among other things, a claim of the executor against the estate, of $1,500, stated, as one ground of appeal, that the surrogate erred in adjudging that the estate was indebted, upon the proofs, to the executor for the sum so allowed. Held, that it was error for the General Term to decline to pass upon the sufficiency of the evidence to sustain the decree; and that, in reviewing the judgment of the General Term, it was the duty of this court to look into the testimony and to determine that question.</p>

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, reversing a decree of the surrogate of the county of New York, which adjudged that an instrument presented for probate as the last will and testament of John Kelly, deceased, was not properly executed and attested, and refused to admit the same to probate, and remitting the proceedings to said surrogate, with instructions to admit the same to probate. (Reported below, /T Hun, 290.)</p> <p>Of the last clause of the instrument, so presented for pro-' bate, and the attestation clause, the following is a copy, with the signatures as they appear:</p> <p>“Likewise, I make, constitute and appoint Edward McCarthy to be executor (J. Kelly) of this my last will and testament, hereby revoking all former wills by me made.</p> <p>“ In witness whereof, I have hereunto subscribed my name and affixed my seal, the 24th day of July, 1874, in the year of our Lord one thousand eight hundred and sixty.</p> <p>“ Witnesses:</p> <p>“ Edward McCarthy.</p> <p>“ Daniel Yah Clief.</p> <p>“ Subscribed by John Kelly, the testator named in the foregoing will, in the presence of each of us, and at the time of making such subscription the above instrument was declared by the said testator to be the last will and testament, and each of us, at the request of said testator, and in-presence, and in the presence of each other, sign his name as a witness thereto at the end of the will.</p> <p>“ Residing at 7 Clark street.</p> <p>“Residing at Ho. 11 Sullivan street.”</p> <p>The instrument was partly printed and partly written.</p> <p>It appeared from the evidence of the witnesses, McCarthy and Yan Chef, that the testator presented the instrument to them, saying: “I drawed up a will for fear any thing might happen me before coming back; in case there was any discussion about the trifle of money I have, I want you to witness this will.” At the time, the name “ J. Kelly ” was written in, as it appears, in the last clause. The witnesses then signed their names, and thereafter the testator wrote the name “John Kelly,” as it appears in the attestation clause. Further facts i ppear in the opinion.</p> <p>The witnesses to the will ¡ hould have signed after the will was signed by the testator. (Jackson v. Jackson, 39 N. Y., 153, 163.) The will was not signed by the testator at the end, as required by the statute. (Redf. L. and Pr. Sur. Courts, 75, 76; Wms. on Exrs., 65; Smee v. Bryer, 6 Notes of Cases, 420; In re Milward, 1 Curt., 912; McGuire v. Kerr, 2 Bradf., 244, 257; Remsen v. Brinkerhoff, 26 Wend., 325 ; Heady’s Will, 15 Abb. Pr. [N. S.], 211-219; Jackson v. Jackson, 39 N. Y., 153; Hoysradt, v. Kingman, 22 id., 372.) A will must be signed by the testator, in the presence of each of the witnesses, or the signature acknowledged, by him to have been made in their presence. (2 R. S., 7, § 40 ; Chaffee v. Bap. Mis. Cor., 10 Paige, 85, 92; Remsen v. Brinkerhoff, 26 Wend., 331; Lewis v. Lewis, 11 N. Y., 220.)</p> <p>The will was properly subscribed by the testator and the witnesses. (McGuire v. Kerr, 2 Bradf., 257; Redf. on Wills, 703 ; Conboy v. Jennings, 1 S. C. R., 622; Cohen's Estate, 1 Tuck., 286 ; Hitchcock v. Thompson, 13 S. C. R., 279 ; In re Gilman, 38 Barb., 364; Townele v. Hall, 4 N. Y., 140; Thompson v. Quinby, 2 Bradf., 449 ; In re Duane, 8 Jur. [N. S.], 752; In re Woodly, 3 Sw. & Tr., 429; In re Cooms, L. R., P. & D., 302; In re Baker, Prerog. Ct., 1844; 3 Notes of Cases, 162; 2 Pars, on Cont., 515; 4 East, 130; 3 Sandf., 318 ; 17 N. Y., 194; 14 M. & W., 794; 1 Redf. on Wills, 208, 209; Winson v. Pratt, 5 J. B. M., 484; Roper v. Franklin, 6 Grat., 1; Rucker v. Lambdon, 12 Sw. & M., 230; Secherest v. Edwards, 4 Metc. [Ky.], 163.) The subscription of the testator, and the acknowledgment thereof to the attesting witnesses was in conformity with the statute. (Harrison v. Harrison, 36 N. Y., 486; Baskin v. Baskin, id., 416; Butler v. Benson, 1 Barb., 526 ; 1 Jarm. [ed. 1861], 74; Ellis v. Smith, 1 Ves., Jr., 11; 1 Redf. on Wills, 209-211; Armstrong v. Armstrong, 29 Ala., 538 ; Rosser v. Franklin, 6 Grat., 1; Dudley v. Dudley, 3 Leigh., 436 ; Bone v. Spear, 1 Philim., 345 ; Tone v. Castle, 1 Curt., 303; Dewey v. Dewey, 1 Metc., 349 ; Nicherson v. Brick, 19 Cush., 332; Tilden v. Tildm, 13 Gray, 110 ; Todd v. Thompson, 9 L. T. [N. S], 177; Hall v. Hall, 17 Pick., 373.) The declaration of the testator, at the time of acknowledging the signatures, that the paper was his last will and testament was sufficiently within the statute. (Hunn v. Case, 5 N. Y. Surr., 307; Van Hoosier v. Van Hoosier, id., 365; Hunt v. Moobrie, 3 Bradf., 322; Tunnison v. Tunnison, 4 id., 138; White v. Trustees, 6 Bing., 310; Risben v. Hicks, 3 Bradf., 353 ; Nipper v. Groesbeck, 22 Barb., 670.) The absence of a seal was not fatal. (In re Diez, 50 N. Y., 88.) This is a case where mere technical objections should be rejected. (Redf. on Wills, 212, 213 ; In re Walker, 1 Sw. & Tr., 653 ; In re Cassmore, 1 L. R., 653.)</p>

This action was brought to recover damages for the alleged negligent killing of William McGovern, plaintiff’s intestate. The facts sufficiently appear in the opinion. The motion for a nonsuit should have been granted. (Culhane v. N. Y. C. amd H. R. R. R. Co., 60 N. Y., 133-137; Reynolds v. N. Y. C. and H. R. R. R. Co., 58 id., 248; Warner v. N. Y. C. and H. R. R. R. Co., 44 id., 466; 2 Redf.

(Reported below, 5 Hun, 165.) This action was brought to recover damages for the alleged negligence of defendant in allowing an excavation, made by it across a public highway, to remain unguarded and unprotected, thereby causing the death of Richard Ditchett, plaintiff’s intestate.

<p>Where, in a foreclosure suit, persons holding prior mortgages are not made parties, and no provision is made as to them in the judgment, the sale must be subject to such mortgages, and no portion of the proceeds of the sale can be applied in payment thereof.</p>

Pike, entered upon an order dismissing the complaint as to them. (Reported below, 8 Hun, 237.) The action was originally brought against said Samuel IT. Pike and defendant Lafayette Harrison, in form against the latter upon a contract between him and plaintiff, and against the •former as guarantor. Pike died after the commencement of the action, and his executors were substituted as defendants in his stead.

Arpeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming a judgment in favor of plaintiffs, entered upon a decision of the court at Special Term. (Reported below, 7 Hun, 357.) This was an action for the foreclosure of a mortgage executed by Ethan A. Pierce and wife to Aurora O. Pierce, and by her assigned to the plaintiff’s testator. The facts appear sufficiently in the opinion.

(Reported below, 5 Hun, 434.) The petition showed that a former assessment upon the lots for paving had been paid. The assessment in question was confirmed January 30, 1874. The ordinance authorizing the work was passed by the common council April 27, 1871. When the work was done did not appear in the petition, nor did it contain any statement in reference thereto.

<p>This was a motion to dismiss an appeal.</p> <p>The facts sufficiently appear in the opinion.</p>

This action was brought to recover the purchase-price alleged to have been paid by plaintiff to John Arnot, defendant’s testator, upon sale by him to plaintiff of what purported to be bonds of the New York and Erie Railroad Company, which proved to be forgeries. The facts sufficiently appear in the opinion. At the close of the evidence on the trial, the court directed a verdict for defendants, to which plaintiff’s counsel duly excepted. A verdict was rendered accordingly.

This action was brought by plaintiff to recover §940.85, claimed to be due him for his salary as counsel to the health department of the city of New York, from April 30,1873, to July 8, 1873. Plaintiff was appointed counsel to the health department, January 15, 1873, at a salary of $5,000.

This action was brought to recover, as for money paid by mistake, the amount paid by plaintiff to defendant upon a check which had been altered and raised after issue. The cheek was drawn upon plaintiff by H. J. Cipperly & Go., to the order of J, Cox, for twenty-four dollars and sixteen cents. The check was altered by erasing the amount, the date and the name of the payee. The .amount was raised to $4,222.75, and the name of Duff & Tienken entered as payees.

This actios was brought upon a guaranty executed by John H. Rapp, defendant’s testator guaranteeing the payment, on the part of the lessees, of the rent reserved in a lease of certain premises in the city of New York. The lease was executed by and between Melehoir Ducker, plaintiffs’ testator as lessor, and Richard Doane and others, as lessees; it was for a term of five years, from May 1, 1870, at a yearly rent of $6,000, payable in quarterly payments thereafter.

(Mem. of decision below, 6 Hun, 229.) A formal charge for neglect of duty with specifications was presented, and a copy of the same, with notice of time and place of hearing, were served upon relator. Upon the notice was indorsed the following : “ I hereby admit the within charge as specified and waive trial thereon,” with what purported to be the relator’s signature attached.

<p>Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, affirming a judgment in favor of plaintiff’s testator, entered upon a decision of the court upon trial without a jury.</p> <p>This action was upon a policy of life insurance, issued upon the life of William E. Bunker, and by him assigned to plaintiff’s testator.</p> <p>The policy was for the term of the natural life of the insured, and contained a condition forfeiting it and all premiums paid thereon “ in case the premium or premiums shall not be paid to said company on or before the time specified for the payment of the same.” The premiums were to be paid semi-annually. The insured died September 19, 1874. The defence was that the policy was forfeited by the non-payment of the semi-annual premium due by the terms of the policy, August 26, 1874. Prior to that day a card notifying the insured when the premium fell due had been sent to him by defendant. This was presented to defendant’s president, who made and signed the following indorsement thereon: u Payment extended until October 10, 1874.” On the day named plaintiff tendered to defendant the amount of said semi-annual premium, which defendant refused to accept.</p> <p>The indorsement being a simple extension of the option to continue, the policy should, necessarily, have been exercised before the death of the assured. (Howell v. Knick. Ins. Co., 44 N. Y., 284, 285 ; Pritchard v. Life As. Soc., 3 C. B. [N. S.], 643; Tyler v. N. Am. Ins. Co., 4 Robt., 151; Bliss on L. Ins. [2d ed.], 312-316; Tarleton v. Staniforth, 5 T. R., 695 ; Simpson v. Ins. Co., 2 C. B. [N. S.], 257; Want v. Blunt, 12 East, 183; Acey v. Fernie, 7 M. &. W., 151; Phœ. Co. v. Sheridan, 8 H. of L. Cas., 745; Mut. B. Ins. Co. v. Ruse, 8 Ga., 534; Robert v. N. E. Mut. Ins. Co., 1 Disney, 355 ; Blanchard v. At. Co., 33 N. H., 6; Donald v. Put. Ins. Co., 2 Ins. L. J., 738; Lafavour v. Ins. Co., 1 Phil., 558; Worthington v. C. O. Ins. Co., 41 Conn., 372.) The contract, as construed by plaintiff, was void for want of consideration. (1 Pars. on Con., 427; Burnet v. Bisco, 4 J. R., 235; People v. Howell, id., 296; 1 Saund., 211, n. 2; Cammeyer v. Luth. Churches, etc., 2 Sandf. Ch., 275; M. and B. Plk. R. Co. v. Snedeker, 18 Barb., 317; Smith v. Ware, 13 J. R., 257.) To excuse the non-payment of the premium prior to the death of the insured, it must be shown that payment was rendered impossible without fault of the insured. (Cohen v. N. Y. Ins. Co., 50 N. Y., 610; Sands v. N. Y. Ins. Co., id., 926; Martine v. Inter'l Ins. Co., 53 id., 339 ; N. Y. L. Ins. Co. v. Strathom, 3 Centl. L. J., 723; Robert v. N. E. Ins. Co., 1 Disney, 355.)</p> <p>27o consideration was necessary for an extension of the time for the payment of the premium. (Washoe Tool Co. v. Hib. Ins. Co., 7 Hun, 74; Leslie v. Kniek. Ins. Co., 2 id., 616; Bolton v. Am. M. L. Ins. Co., 25 Conn., 542; 1 Pars on Con. [1st ed.], 427; Fleming v. Gilbert, 3 J. R., 528; Boutwell v. O'Keefe, 32 Barb., 434; Young v. Hunter, 6 N. Y., 203; Evans v. Thompson, 5 East, 189-193; Hasbrouck v. Tappen, 15 J. R., 200-204.) The time specified in a policy of insurance for .the payment of the premium may be extended by paroi or otherwise. (Goit v. N. P. Ins. Co., 25 Barb., 189; Trustees, etc. v. B'klyn F. Ins. Co., 19 N. Y., 305 ; Howell v. Knick. L. Ins. Co., 44 id., 276; Dean v. Ætna L. Ins. Co., 2 Hun, 358; Washoe Tool Co. v Hib. F. Ins. Co., 7 id., 74.) Defendant, by extending the time for payment of the premium, is estopped flora claiming a forfeiture. (Dezell v. Odell, 3 Hill, 219 ; Reynolds v. Lounsbury, 6 id., 534; Underwood v. F. J. Ins. Co., 57 N. Y., 500; Leslie v. Knick. L. Ins. Co., 2 Hun, 616.)</p>

Motion to dismiss appeal from order. The nature of the order and grounds of motion are stated in the opinion. The statutes under which defendant acted being remedial, should be liberally construed. (Potter’s Dwar. on Stats., 140, 144, 145, 203, 210, 231, 239.) The order was not appealable.

The facts sufficiently appear in the opinion. A statute affecting the compensation of an officer when the words admit of two interpretations should be construed in the way most favorable to the claim of the officer. (U. S. v. Morse, 3 Story, 87.) ¡Repeal by implication is not favored in the law.

The nature of the action and the facts sufficiently appear in the opinion. The evidence offered by plaintiff was admissible under section 399 of the Code. (Simmons v. Sisson, 26 N. Y., 264; Lobdell v. Lobdell, 36 id., 327; Cary v. White, 59 id., 336.)

This action was upon a policy of life insurance issued by defendant upon the life of John H. Flynn, plaintiffs’ intestate, By the policy, the declarations and statements made in the application were warranted by the assured “to be in all respects true and without the suppression of any facts relating to the health or circumstances” of the assured, and it was declared that the violation of this condition in any respect rendered the policy null and void.

This action is brought to recover penalties claimed in the complaint to have been incurred by the defendant, in acting as the agent of a foreign insurance company, in the issuing and delivery of insurance policies, “ in violation of the insurance acts and statutes of this State.” No particular statute was referred to.

This action was brought by the attorney-general to vacate .and annul certain letters patent of .lands under water in the Hudson river, issued pursuant to a resolution of the commissioners of the land office, on the ground that it was executed under mistake, and in ignorance of material facts. The facts are set forth sufficiently in the opinion.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department affirming the proceedings of the commissioners of taxes and assessments, in the city and county of ¡New York, in assessing the shareholders of the relator, the Gallatin ¡National Bank, upon their stock in said hank, and dismissing a writ of eerbiora/ri brought to review such proceedings. (Reported below, 8 Hun, 536.)</p> <p>The said bank was first incorporated under the general banking law of this State. In pursuance of the provisions of chapter 97, Laws of 1865, it was converted into a national bank. The par value of the shares of its capital stock is fifty dollars. The said commissioners assessed the value at seventy-two dollars and two cents. The relators appeared and opposed the assessment; the president of the bank making affidavit that the actual value of the shares was but sixty-four dollars. The commissioners thereupon assumed this as the value, deducted five dollars per share as the proportion of the value of the real estate belonging to the bank, and reduced their assessment to fifty-nine dollars per share.</p> <p>Further facts appear in the opinion.</p> <p>The repeal in chapter 761, Laws of 1866, of section 10 of chapter 97, Laws of 1865, was unconstitutional, as affecting the validity of a contract between the relators and the States. (Cent. B. and B. Co. v. Georgia, 20 How., 665.) The assessment was illegal, the-valuation being, in reality, a taxation of the capital of the bank. (2 Wall., 200; 3 id., 573; 4 id., 244.)</p> <p>The actual, and not the par, value, where the two do not coincide, is the standard to be adopted by the commissioners in assessing the value of shares of the capital stock of a national bank upon the stockholders thereof. (2 Laws of 1866, chap. 771, p. 1647; 1 R. S., 393, § 17.) The stockholders cannot avoid taxation on the actual value of their stock because a part, or even the whole, of the capital stock of the bank is invested in United States bonds. (Van Allen v. The Assessors, 3 Wall., 573;. People v. The Comrs., 4 id., 244.)</p>

This action was in the nature of a quo wa/rrambo to try the title to the office of clerk of the Eighth District Court of the city of ISTew York. Healey, the relator, was appointed clerk of said court Hay 20, 1872, by the justice for the district, under the provisions of chapter 438, Laws of 1872.

This action was brought to restrain the collection of an assessment imposed upon plaintiffs’ lands for the improvement of Oak street, in the city of Rochester. The decision upon a former appeal is reported in 65 hi. Y., 516.

This action was brought to recover damages for the alleged breach of a contract to sell and deliver á quantity of wood. The contract, according to plaintiff’s evidence, was made by paroi in May, 1869. By it plaintiff agreed to sell and deliver to defendant 1,000 cords of wood, or so much of that quantity as he could cut and deliver, which defendant agreed to purchase and pay for at three dollars and fifty cents per cord for hard wood, and three dollars per cord for soft wood.

This was an appeal by Joseph Potter, plaintiff in the action last entitled, from an order requiring the creditors of defendant’s assignors to come in and prove their claims in the action secondly above entitled, and restraining proceedings in the others. These actions were brought by plaintiffs, in behalf of themselves and other creditors, against defendant, as an assignee for the benefit of creditors, for an accounting and closing up of the trust.

This was an action upon a policy of insurance issued hy defendant upon the life of William E. Shaft, plaintiff’s intestate.

• This action was brought originally by the members of the firm of hi able, Hammett & Co., who had obtained a judgment against one Delamater, to have a prior judgment, in favor of defendants against Delamater, decreed paid and satisfied, and to restrain them from receiving the avails of a sale, on execution, of the property of the judgment debtor.

The petition was filed under chapter 338, Laws of 1858, upon the ground that the assessment was not confirmed by the common council and because the resolutions' authorizing it were not published as required. The order granting the prayer of the petition was, upon motion, set aside upon affidavits showing that the petitioner was not the owner and had no interest in the premises. The motion to vacate not having been made within a year, the court had not authority to grant it.

(Reported helow, 7 Hun, 662.) This action was brought originally by Maria Jane Cornell, wife of defendant Mark Cornell, to restrain the perfecting of a sale of certain premises in Westchester county to defendant Stewart; to have it adjudged that a deed conveying said premises to defendant Hopper in trust for defendant Cornell and a deed from Hopper to defendants Jayne and Mercer, also in trust for Cornell, were taken, and that the premises were held thereunder in trust for…

(Reported below, 4 Hun, 91.) This action was originally brought to foreclose a mechanic’s lien under chapter 402, Laws of 1854 (the lien law applicable to Westchester county). Upon a former trial, a judgment in favor of the plaintiffs, entered upon the report of a referee, was reversed by this court (50 27. Y., 145) and a new trial ordered. Upon the second trial no lien was claimed, but a personal judgment was asked for.

” It was conceded that all the provisions of the said statute, which, by its terms, were made by the act prerequisites to the issuing of the bonds by the mayor, had been complied with, and the only questions raised were as to the constitutionality of the act. Chapter 445, Laws of 1876, is a local act, and its subject is not expressed in its title in compliance with the provision of article 3, section 16 of the Constitution.

<p>This case presented the same question and was decided upon authority of People ex rel. v. Tappan {supra).</p>

This case presented the same question as Schenck v. The Mai/or, etc. {ante, p. 44), and was disposed of on the authority of that case. As to some of the accounts set forth in the complaint and allowed by the referee, however, the court held there was no evidence to sustain the finding of the referee.

This action was brought to have the assignment of a bond and mortgage, executed by plaintiff to defendant as collateral security for a loan, given up and canceled on the ground of usury. Decided on the facts in the case.

A claim; was presented by plaintiffs as executors of the estate of Paran Stevens against the estate of defendant’s testator for repairs and… Held: that this was a guaranty simply of the amount necessary to lay the floor in the old building, not of the entire floor; that the fact that the amount specified ($2,500) proved to be sufficient to lay the entire floor did not affect the construction to be given the letter, as it was a mere estimate, made before the work was done,…