Volume 68 — New York Reports

This was an action of ejectment to recover a strip of land in the city of Brooklyn, fifty feet wide, on the southerly side of Atlantic avenue. The case has been already before this court sub norwme, Heard v. The Oity of BrooMyn (60 1ST. Y., 242).

<p>The bridge across Spuyten Duyvil creek, known as “Kingsbridge,” is embraced within the provisions of the act of 1869 (chap. 826, Laws of 1869), making it the duty of the board of commissioners of the Central park to prepare maps and plans of proposed changes in streets and avenues within certain territory therein described, and also the plans and location of all bridges, etc., over the Harlem river and Spuyten Duyvil creek, and providing that no proceedings should be had for any improvement “ within the area described,” unless said commissioners shall concur therein; and is also within the provisions of the act of 1870 (chap. 797, Laws of 1870), transferring the powers of the commissioners to the department of public parks, and conferring upon the officers named full power to build and construct any and all bridges, etc., across said river and creek, which may be planned or located.</p> <p>An intention to except Kingsbridge from the operation of said acts cannot be inferred from the provisions of the tax levy acts of 1867, 1868, 1869 and 1870 (chap, 586, Laws of 1867; chap. 853, Laws of 1868; chap. 867, Laws of 1869; chap. 383, Laws of 1870), authorizing moneys to be raised for " a new bridge at Kingsbridge.”</p> <p>Accordingly held, that the corporation of the city of New York was not liable for damages sustained by plaintiff by reason of his having been prevented from performing a contract made, in August, 1870, by him with the commissioners of public works for building a new stone bridge on the site of Kingsbridge, it not appearing that the contract was made with the concurrence of the board of commissioners of Central park, or of the department of public parks.</p>

This action was brought to recover the value of certain gravel and stone alleged to have been sold and delivered by plaintiff to defendant and used in the repair of one of its streets. The material was, as the evidence tended to show, furnished by plaintiff in 1869 and 1870, at the request of the superintendent of roads, to whom the bills were given and were certified by him to the street department. The material was taken and used on the streets.

<p>A plaintiff, suing upon an assigned claim, is the real party in interest, under the Code, if he has a valid transfer as against the assignor, and holds the legal title to the demand; the defendant has no legal interest to inquire whether the transfer was an actual sale or merely colorable, or whether a consideration was paid therefor. While such an inquiry may become material if the rights of creditors are involved, or when some defence or counter-claim against the assignor is sought to be interposed, it constitutes no defence on the ground that the plaintiff is not the real party in interest.</p> <p>In an action upon an assigned claim, plaintiff’s counsel requested the court to direct a verdict for plaintiff; the court denied the request, submitting, however, to the jury simply the question as to the right of the plaintiff to maintain the action, and charging that if the transfer was “a sham instrument,” plaintiff should be defeated, if not, that he was entitled to recover. Plaintiff’s counsel excepted to the refusal to direct a verdict. Held, that the exception was sufficient to present the question as to plaintiff’s right to maintain the action.</p>

This action was brought against defendants, as trustees of the American Seal Lock Company, a corporation organized under the general manufacturing act (chap. 40, Laws of 1848), to enforce the statutory liability to pay the debts of the corporation imposed by said act upon the trustees (§ 12), in case of failure on its part to make, file and publish an annual report. The case is reported on a former appeal in 63 Hew York, 62. The said corporation was organized in May, 1871.

<p>Appeal from judgment of the General Term of the Court of Common Pleas for the city and county of Uew York, affirming a judgment in favor of plaintiff entered upon the report of a referee.</p> <p>This was an action of ejectment, brought to recover possession of certain lots in the city of Hew York, formerly part of what was known as “ the Hopper farm.” Both parties claim under the will of John Hopper, who died seized of this farm, leaving a will in and by which his real estate was disposed of as follows:</p> <p>“ Secondly. — I give, devise and bequeath unto my three grandchildren namely, Garret Hopper Striker, Ann Striker and Wyntie Mott, wife of Jordan Mott, and their heirs forever, all my real estate, wheresoever and howsoever situate. The said real estate so devised to my said grandchildren to be disposed of as follows by my executors hereinafter named, and the survivors of them, or the executors or administrators of such survivors, that is to say : the said real estate shall not at any time hereafter be sold or alienated but my said executors, or the survivors of them, or the executors or administrators of such survivor, shah from time to time lease or rent the same on such terms and for such rent as they may deem most advantageous to my said heirs, and the rents issues and profits of the same shall be annually paid by my said executors, and the survivors of them, or the executors or administrators of such survivor, to my said heirs in equal proportions, and if either of my said heirs, or their children, lawfully begotten, shall choose to occupy any part of my said real estate, he, she or they shall have a preference to any other applicant on paying a reasonable rent for the same.”</p> <p>A subsequent clause in the will was in these words: “ And in case any of my said heirs and devisees shall die without lawful issue, then and in such case my will is that the share of the one so dying shall be and inure to the sole use, benefit and behoof of my said grandchildren and the survivor of them, and the heirs of such survivor forever.”</p> <p>The provisions of this will were passed upon by the Court of Chancery in Striker v. Mott (2 Paige, 387) and by the Court of Appeals in Brewster v. Striker (2 Comst., 19), also in Striker v. Mott (28 N. Y., 82).</p> <p>Said John Hopper left him surviving the three grandchildren, who were mentioned in his will and who were his only heirs at law. Said Garret H. Striker married after the death of John Hopper and had issue; said Ann Striker died in 1860 unmarried and leaving no issue; said Winifred Mott was married, and by such marriage had seven children, all of whom were living at the time of the death of Hopper, one of whom was Jordan Mott. On the 27th day of January, 1843, said Jordan Mott was adjudged a bankrupt under and in pursuance of the bankrupt act then in force.</p> <p>Prior to the year 1851, avenues and streets of the city of Hew York had been laid out and located over the whole of the “Hopper farm,” and in January, 1851, a city surveyor, made a map of said “ farm ” and divided the same into city lots which map was entitled “ Map of property situate in the nineteenth ward of the city of Hew York, belonging to the heirs of John Hopper, deceased ” and was filed in the register’s office of the city and county of Hew York.</p> <p>Said Winifred Mott died on the 16th day of March, 1862, leaving her surviving, the aforesaid Jordan Mott, and three other sons who were her only heirs at law.</p> <p>On the 17th day of October, 1863, the aforesaid Garret H. Striker commenced an action in the Supreme Court for a partition of the said Hopper farm, claiming, among other things, that under the decision in 28 Hew York, 82, one-third of said Hopper farm vested in fee simple, upon the death of Ann Striker, in him, and his sister Winifred Mott, and that upon the death of said Winifred Mott, one-third of said Hopper farm vested in fee simple under and by virtue of the provisions of the will of John Hopper aforesaid in her four sons, then surviving her as aforesaid. The assignee in bankruptcy of Jordan Mott was not made a party to the partition suit, nor did he appear therein.</p> <p>On or about the 10th day of January, 1865, a judgment was entered in said suit whereby a partition of said Hopper farm was decreed among the parties thereto, and by said judgment there was partitioned and set apart to Jordan Mott, as his portion of said farm, the premises described in the complaint.</p> <p>Subsequently to said judgment, said Jordan Mott made a conveyance of said premises, and the defendant, Joseph A. Scholtz, claimed to be the owner thereof under and by virtue of said conveyance.</p> <p>On or about the 13th day of June, 1868, an order was made, by the United States District Court, in bankruptcy, in the proceeding in the matter of the bankruptcy of Jordan Mott aforesaid, by which order the general assignee in bankruptcy aforesaid, was directed to sell at public auction all the right, title, interest, property, claim and demand whatsoever, whether in law or in equity, of the said Jordan Mott, of, in and to any arid all real estate in any manner described or referred to in the will of John Hopper, describing the same by metes and bounds, and among other property, the Hopper farm aforesaid.</p> <p>On or about the 11th day of September, 1868, in accordance with said order, said assignee sold and conveyed to plaintiff all the right, title and interest which said Jordan Mott had, and which he, the said assignee, had in the real estate aforesaid. Further facts appear in the opinion.</p> <p>The sale by the assignee was void, the notice of sale not having been published according to the requirements of the bankrupt law. (Bankrupt Law of 1841, §§ 6, 7; U. S. District Court Rules, 62, 70; In re Livingston, 2 Abb. [N. S.], 286; Walker v. Ducios, 18 La. Ann., 703; Harrison v. McCue, 43 Cal., 178; Scott v. Young American, 1 Newbury [Mich.], 107; Burt v. Place, 4 Wend., 591; Armstrong v. Percy, 5 id., 535; Ritchie v. Putnam, 13 id., 524; Williams v. Wood, 14 id., 126; Dresser v. Brooks, 3 Barb., 429; Bk. Charleston v. Emerick, 2 Sandf., 718; Onderdonk v. Voorhis, 2 Rob., 623; Robert v. Good, 36 N. Y., 408; Duncan v. Dubvis, 3 J. Cas., 135; High v. Wilson, 2 J. R., 476; Bloom v. Burdock, 1 Hill, 130; Thatcher v. Powell, 6 Wheat., 119; Jackson v. Estey, 7 Wend., 148.) The order of sale conferred no authority upon the general assignee to dispose of the bankrupt’s property, because it was made by the district judge, and not by the court. (Bankrupt Law 1841, § 9.) The real estate having been divided into lots, each lot should have been sold separately. (§ 47, art. 2, tit. 5, chap. 6 of part 3, R. S.; Conkling’s Treatise, chap. 7, p. 317; 4 U. S. Stat. at Large, chap. 68, p. 278.) The bankrupt took an estate in fee simple absolute under the will of John Hopper in the real estate devised. (Pells v. Brown, Cro. Jac., 590; Jackson v. Anderson, 16 J. R., 382; Striker v. Mott, 2 Paige, 387; Brewster v. Striker, 2 N. Y., 19.) There was nothing in the trust provision in the will of John Hopper which affected the fee of the real estate as limited to the three-grandchildren and their heirs. (Brewster v. Striker, 2 N. Y., 19; Wendell v. Crandall, 1 id., 491; 2 Den., 23; 4 Kent’s Com., 205 ; 2 Washb. on R. E., 547 [m. p. 228].) The rule in Shelley’s case is not' applicable in a case where there is no remainder to heirs," but the remainder is to the ancestor and his heirs. (Striker v. Mott, 28 N. Y., 82; 1 R. S., 725, § 28; Campbell v. Rawdon, 18 N. Y., 420; Fearne on Remainders, 28,29; 1 Jarman on Wills, 465,1 Washb. on R. E., 105 [m. p. 78]; 2 id., 490 [m. p. 182]; Hileman v. Bouslaugh, 13 Penn. St., 344.)</p> <p>The will of John Hopper gave to Jordan Mott as a purchaser an estate in remainder in the share devised to the trustees for the benefit of his mother. (Un. Nat. Bk. v. Kupper, Ct. App., Nov. 9, 1875; Striker v. Mott, 28 N. Y., 82-93; Brewster v. Striker, 2 id., 19; Wms. on R. P., * 244-247 [4th Am. ed.]; 3 Kent’s Com., 506; 2 Black. Com., 56, 72, 91, 287; Sullivan’s Lectures, L, XI, XV; Burgess v. White, 1 Eden, 191, 242; Campbell v. Rawdon, 18 N. Y., 420; 2 Washb. R. P., 269, § 3; 1 Preston on Estates, 298, 273; Hargraves Law Tracts, 573, 574, 503; Butler’s Fearne, 86, 77; 1 Bro. C. C., 216; Brown v. Lyon, 2 Seld., 420, 421; Hayes on Estates Tail, 7 Law Lib. Prop., 3, 8; Mandeville's Case, Co. Litt., 26; 2 Jarman on Wills [3d ed.], 56, 57; 1 Powell on Devises, 264, 300, 301; Doe v. Carleton, 1 Wilson, 225; Harris v. Barnes, 4 Burr., 215-17; Moore v. Littel, 41 N. Y., 71; Doe v. Elvey, 4 East, 318; Burnsall v. Davey, 1 B. & P., 215; White v. Collins, 1 Comyns, 289; Doe v. Burnsall, 6 E. R., 30; Davis v. Taul, 6 Dana, 51; Shapland v. Smith, 1 Bro. C. C., 75; Sugd. on Vendors [2d Am. ed.], 262-264; Jones v. Ld. Say & Sele, 8 Viner, 263; Kinch v. Ward, 2 Sim. & Stu., 409; Sylvester v. Wilson, 2 T. R., 444; Tippin v. Cosin, Carthew, 272; Doe v. Ironmonger, 3 East, 538; Ward v. Amory, 1 Curtis C. C., 428, 429.) By the word “ heirs ” in the first clause of the will, the testator meant issue, i. e., “ children.” (Striker v. Mott, 28 N. Y., 93; Taggart v. Murray, 53 id., 233,238,239; Doe v. Burnsall, 6 T. R., 30; 6 Greenl. Cruise, *237-239, §§ 20-26; 2 Washb. on R. P., 364, § 3 [ed. 1862] ; 1 Butler’s Fearne, 466 [Lond. ed., 1844]; Bundy v. Bundy, 38 N. Y., 410; Norris v. Beyea, 13 id., 273; Webh v. Hearing, Cro. Jac., 415; Nottingham v. Jennings, 1 P. Wms., 23; Parker v. Thacker, 3 Lev., 70; Ellis v. Mer. Bridge, 2 Pick., 243; Pinckney v. Pinckney, 1 Bradf., 269, 276; Haley v. Boston, 108 Mass., 576; Lewis on Perpetuities [ed. 1848], 311-317; Harris v. Davis, 1 Coll. Ch. C., 423; Goodright v. Goodridge, Wills, 373; Doe v. Black, 6 Taunt., 488; Exrs. of Rowe v. White, 16 N. Y. Eq. [1 C. E. Green], 411; Patterson v. Ellis, 11 W. R., 275-294; Anderson v. Jackson, 16 J. R., 405-415; Moffat v. Strong, 10 id., 16-18; Ellis v. M. Bridge, 2 Pick., 243; Burns v. Porter, 4 id., 198.) The estate of Jordan Mott was a remainder in fee which vested in interest at the testator’s death, liable to let in after-horn issue of Mrs. Mott until the termination of the precedent estate, and which could only be divested by the death of Jordan Mott in the lifetime of his mother. (Doe v. Newell, 1 M. & S., 327; Randall v. Doe, 5 Dow., 202; Doe v. Considine, 6 Wal., 458, 474; Roddy v. Fitzgerald, 6 H. L. Cas., 883; Doe v. Lawton, 4 Bing. [N. C.], 455; Doe v. Wright, 7 East, 259; Randall v. Tucker, 6 Taunt., 418; Roe v. Bacon, 4 M. & S., 366; Doe v. Lear, 1 A. & E. [N. S.], 239; Wells v. Ritter, 3 Whart., 208; Harrison v. Foreman, 5 Ves., 207; Ferson v. Dodge, 23 Pick., 287, 292; Finlay v. King’s Lessee, 3 Pet., 346; Egerton v. Earl B., 4 H. L. Cas., 1; Clavering v. Ellison, 7 id., 707; Doe v. Ward, 9 A. & E., 582; Carver v. Jackson, 4 Pet., 1, 90; Blanchard v. Blanchard, 1 Al., 223; Phipps v. Ackers, 9 C. & F., 583; Jeffers v. Lampson, 10 Ohio St., 101; Smith’s Appeal, 23 Penn. St., 9; Pierce v. Hakes, id., 231; McLachlan v. Taitt, 30 L. J. Ch., 276; In re Orlebar [L. R.], 20 Eq., 711; Hervey v. McLaughlin, 1 Price, 264; Manice v. Manice, 43 N. Y., 303, 380; Roome v. Phillips, 24 id., 363; Boraston’s Case, 3 Rep., 20; Phipps v. Acker, 9 C. & F., 583; Whitter v. Bremridge [L. R.], 2 Eq., 736; Doe v. Moore, 14 East, 601; Cropley v. Cooper, 19 Wal., 168; Arnold v. Buffum, 2 Mason, 208; Kelso v. Cuming, 1 Redf., 392; Bromfield v. Crowder, 1 B. & P. N. R., 313; 14 East, 604; Andrew v. Andrew [L. R.], 1 Ch. D., 410; Muskett v. Eaton, id., 437; Furness v. Fox, 1 Cush., 134; Taggart v. Murray, 53 N. Y., 233, 238; Doe v. Considine, 6 Wal., 458, 472-479; Cochran v. Van Surley, 2 Wend., 365; Williamson v. Field, 2 Sandf. Ch., 549-562; Williamson v. Barry, 8 How., 508, 532; Clarke v. Davenport, 1 Bosw., 95, 113; Kane v. Astor, 5 Sandf., 469; 9 N. Y., 113; Nodine v. Greenfield, 7 Paige, 544; Lawrence v. Bayard, id., 70; Depeyster v. Clendinning, 8 id., 295; Moore v. Lyons, 25 Wend., 119; 5 Paige, 465; Hawley v. James, 16 Wend., 137; Croxall v. Shererd, 5 Wal., 288; Leavitt v. Logan, 3 Wal. Jr., 184; Moore v. Littell, 41 N. Y., 72-75; Riley v. Garrett, 3 De G. & Sm., 629; Brown v. Brown, 3 Sm. & Giff., 568; Kersh v. Yongue, 7 Rich. Eq., 100; Gilman v. Redington, 24 N. Y., 9; Everett v. Everett, 29 id., 39; Festing v. Allen, 12 M. & W., 279; Rhodes v. Whitehead, 3 Dr. & Sm., 533.) Whether Jordan Mott’s interest was contingent or vested, it was alienable. (Moore v. Littel, 41 N. Y., 66; 53 id., 233; Higden v. Williamson, 3 P. Wms., 132; 2 Washb. R. P., 237, 238; Miller v. Emans, 19 N. Y., 398; Jones v. Roe, 3 T. R., 88; 1 H. Black., 30; Moor v. Hawkins, 3 Edm. Ch. Cas., 341; 1 H. Black., 34; Pinckney v. Pinckney, 1 Bradf., 273, 274; Pond v. Bergh, 10 Paige, 156; Mead v. Mitchell, 17 N. Y., 210; House v. Jackson, 50 id., 165; Jackson v. Sheridan, id., 660; Jackson v. Littel, 56 id., 111; House v. McCormick, 57 id., 316; Lawrence v. Bayard, 7 Paige, 76.) Being alienable, it passed to the assignee in bankruptcy, and from him to plaintiff. (Owen on Bankruptcy [ed. 1842], 57, 58; Higden v. Williamson, 3 P. Wms., 132; Stover v. Eyclesheiner, 4 Abb. Ct. App., 310; id., 218; 50 N. Y., 660; Carr v. Hilton, 1 Curt. C. C., 230; Charr v. Gale, 3 Wood [B. & M.], 38.) The two years’ limitation in the eighth section of the bankrupt act was not a bar to this action. (5 Stat. at Large, 446; Stevens v. Hauser, 39 N. Y., 302-312; In re Conant, 5 Blatch., 54; Sedgwick v. Casey, 4 Ben., 562; 4 Nat. Bk. Reg., 496; Smith v. Crawford, 6 id., 38; In re Krogman, 5 id., 116.) The action was properly brought. (Stevens v. Hauser, 39 N. Y., 302; 4 Kent, 446, note e; Hoyt v. Thompson, 5 N. Y., 320, 347; Truax v. Thorn, 2 Barb., 156; Tuttle v. Jackson, 6 Wend., 224; Code, § 111; Hamilton v. Wright, 37 N. Y., 502; Lowber v. Kelly, 9 Bosw., 494, 502; Towle v. Smith, 2 Robt., 489, 495; Hasbrouck v. Bunce, 3 T. & C., 311.)</p>

The nature of the action and the facts sufficiently appear in the opinion. The way claimed by plaintiff was a non-continuous quasi easement, which did not pass by the word “ appurtenances.” (Goddard on Easements, 70-74, 83-86; Polden v. Bastard, L. R. [1 Q. B.], 156; Washburn on Easements, 39, 40, m. p. ; Dodd v. Burchell, 1 H. & C., 113; Thomson v. Waterlow, L. R. [6 Eq.], 36; Langley v. Hammond, L. R. [3 Exch.], 161; Worthington v. Gimson, 2 E. & E., 618; 105 Eng.

<p>Public grants "to individuals, under which rights are claimed in impairment of public interests, are to be construed strictly against the grantee.</p> <p>The title to lands under tide-water in this country, which, before the revolution, was vested in the king, became, upon the separation of the colonies, vested in the States within which they were situated; and the State legislatures may exercise the same powers which, previous to the revolution, could have been exercised by the king alone, or by him in conjunction with parliament, subject only to the restrictions imposed by the Constitution of the State and of the United States.</p> <p>The legislature of the State may, as the representative of the people, grant the soil, or confer an exclusive privilege in tide-waters, or authorize a use inconsistent with public rights, subject to the paramount control of congress.</p> <p>A grant of land under tide-water, made pursuant to the act of 1813 (chap. 74, Laws of 1813), as amended in 1815 (chap. 199, Laws of 1815), gives to the grantee a title to the soil, but does not authorize an interference with the public right in the waters. Such grants are made in the interest of commerce, and operate as a license to the grantee to erect wharves and piers upon the lands granted, which those interests require.</p> <p>The grantee, by virtue of his proprietary interest, can exclude any other person from the permanent occupation of the land granted; but the State does not by the grant divest itself of the right to regulate the use of the granted premises in the interest of the public, and for the protection of commerce and navigation.</p> <p>Under and in pursuance of said acts letters patent were issued to Q-. granting to him a piece of land, described therein, under tide-water in New York bay, to have and to hold “ as a good and indefeasible estate of inheritance forever.” No words were contained in the grant excluding the exercise by the State government of control of the water above the land granted. Prior to the passage of the act of 1857 (chap. 763, Laws of 1857) establishing bulk-head and pier lines for the harbor of New York, the second section of which prohibits the filling in, in the waters of the port beyond the bulk-head lines, excepting piers of a width and with an intervening water space specified, and prohibits the extension of piers beyond the pier lines, no piers had been erected on the land granted to G. Reid, that the act was a lawful exercise of legislative powers; that the owners of the Gr. grant were bound to observe it, and in erecting piers to conform to its directions.</p> <p>The said section was not repealed by the third section of the act of 1860 (chap. 533, Laws of 1860) changing the bulk-head and pier lines in a portion of the harbor. The words with which said third section begins, to the effect that the act of 1857 “is amended so as to read as follows,” relate only to the particular change mentioned in the succeeding clause.</p> <p>About 1865 the grantees of a portion of the land covered by the grant to G. erected a wharf or pier thereon of more than the width prescribed by the act of 1857 with an arm projecting laterally from the end thereof. Defendant having acquired the title of G. to an adjoining portion of the grant, commenced erecting a pier thereon adjoining the pier already erected, without leaving any intervening water space, and extending beyond the established bulk-head line; and at the end thereof and outside the line of the G. grant erected a club-house. In an action to restrain the completion of the structure and to compel its removal, held, that the erection of the club-house was not authorized in the act of 1857, and was a purpresture; that the structure erected prior to that of defendant’s was a pier within the meaning of the act of 1857, although it exceeded the lawful width, and had an arm or extension thereto; and that plaintiffs were entitled to judgment declaring the structures erected by defendant unlawful, and directing their removal.</p> <p>Plaintiffs were granted an extra allowance of five per cent on the value of defendant’s pier. Reid, error; that the subject-matter in controversy was the right to erect the structure, and not the value of the erections, in which plaintiffs claimed no right of property.</p>

(Mem. of decision below, J Hun, 330.) This action was brought upon a judgment recovered by the plaintiff against Charles J. Brenham, originally a defendant herein, and Beverly 0. Sanders, in the Superior Court of the city of San Francisco.

The grounds upon which the application was made were that the construction of the sewer was never authorized by the common council of the city; also, that no notice was given to the petitioner of the intention to build said sewer. The sewer was constructed by the order of the commissioner of public works. The commissioner of public works had no power to construct the sewer in question until so ordered by the common council. (In re Dugro, 50 N. Y., 513; Cooley on Const.

The grounds of the application were that the common council had made no ordinance authorizing the building of the sewer, and that at the time of building the sewer and making the assessment ¡Ninety-first street had not been opened as a street or highway. The case was decided originally upon the opinion in the case (In re Zborowshi, ante, 88, the order being affirmed, Earl, J., dissenting) without considering the point that the sewer was not built in, a street.

(Reported below, 7 Hun, 61.) The questions presented and other facts are sufficiently set forth in the opinion. Proof that the advancements were made aliunde the entries in the testator’s books of accounts was necessary. (Johnson v. Belden, 20 Conn., 322; Meeker v. Meeker, 16 id., 383; Lamson's Appeal, 23 Penn. St., 86.)

(Eeported below, 6 Hun, 572.) The alternative writ recited, in substance, that the commissioners of highways of the towns of Geneseo and Leicester, in the county of Livingston, entered into a contract with James Conway, the relator’s assignor, for the construction of a bridge over the Genesee river, which divides the two towns; that Conway did construct the bridge according to the contract and the same was accepted by the commissioners; that upon the passage of the act,…

This action was brought to recover damages for injuries alleged to have been received through the negligence of defendant’s employes by plaintiff while alighting from a train on defendant’s road. The case has been to this court twice before.

Appeals from judgments of the General Term of the Supreme Court in the second judicial department affirming a judgment in favor of defendants, entered upon the report of a referee. The action first above entitled was brought to foreclose a mortgage for $1,000, executed by defendant Kidd to one Hardenburgh, and assigned by the latter to plaintiff.

Court in the fourth judicial department affirming a judgment in favor of plaintiff, entered upon the report of a referee. This action was brought to foreclose two mortgages executed by the defendant, Irene L. Pattee, to Charles Hart, plaintiff’s intestate, to secure the payment of $8,000. The defence was that the mortgages were executed without consideration.

The testator died in April, 1874, leaving real estate. He left a widow, a second wife, and eight children, two of them by his 'first wife, one of whom is the respondent, James W. Cudney. By the will the testator devised the principal portion of his real estate to his son James. The appellants are the widow and her children, who contested the will on the grounds of incapacity and undue influence. The will was executed in due form.

(Eeported below, J Hun, 380.) This was an action of ejectment to recover possession of premises situated in Sandy Hill, Washington county. It has been to this court once before, when it was heard and decided by the Commission of Appeals.

<p>These were appeals by the Lake Shore and Michigan Southern Railroad Company, the Hew York Central and Hudson River Railroad Company, the Erie Railway Company and the Buffalo, Hew York and Erie Railroad Company from orders of the General Term of the Superior Court of the city of Buffalo, affirming an order of Special Term appointing three commissioners to ascertain and report the compensation to be paid to the appellants, as the owners of lands sought to be taken for the purpose of extending the Main and Ham-burgh Street Canal in said city.</p> <p>Proceedings were instituted under the city charter, (chap. 519, Laws of 1870), to take, for the purpose of such extension, a strip of land sixty feet wide and about two miles long. The proposed extension passes through the lands of the appellants which had been acquired by them respectively for the purposes of their roads. It passes entirely through the yards of the Lake Shore and Michigan Southern Railway Company at a point where are located numerous tracks, turnouts and switches, all in constant use and all necessary for the convenient and successful operation of its road. The other railroad companies had numerous tracks across the lands sought to be taken, one of them the main freight track of the Erie Railway Company, the others leading -to yards, freight depots, shops, etc. The affidavits showed that the injury to the roads would be irreparable, - at least, unless the excavation for the canal should be bridged.</p> <p>By the charter (title 8, § 18), it is provided that the fee of lands taken in proceedings under it should vest in the city. Ho provision was made in the order of Special Term reserving the right to the appellants to bridge the canal, or in any manner to use the lands when taken by the city, and nowhere in the proceedings was there any reservation or recognition of any rights in them therein.</p> <p>Further facts appear in the opinion.</p> <p>The case, as reported on a former appeal, appears in 64 New York, 547.</p> <p>The General Term erred in refusing to consider whether or not the common council had power to condemn the lands in question. (Laws 1870, chap. 519, tit. 8; Han. F. Ins. Co. v. Tomlinson, 58 N. Y., 215; N. Y. C. and H. R. R. R. Co. v. Cunningham, 13 Alb. L. J., 145; In re R. and S. R. R. Co. v. Davis, 43 N. Y., 137, 147.) The city had no power to take the lands of the railroad companies in the manner proposed. (Heath v. Barmore, 50 N. Y., 302; Bklyn. Pk. Comrs. v. Armstrong, 45 id., 234; Inhabitants of Springfield v. Conn. R. R. Co., 4 Cush., 63; M. and H. R. R. R. Co. v. Artcher, 6 Paige, 83; In re B. and A. R. R. Co., 53 N. Y., 574, 579; Kyle v. Aub. R. R. Co., 2 Barb. Ch., 489, 497; In re U. C. and S. V. R. R. Co., 56 Barb., 456; Hill v. M. V. R. R. Co., 3 Seld., 152; Alb. N. R. R. Co. v. Brownell, 24 N. Y., 345; Babcock v. City of Buffalo, 56 id., 268; Lodies’ Case, 2 Salk., 458; King v. Pappinau, 1 Str., 686; 2 Roll. Abr., 84; Washb. on Easements, 582, 583; Rogers v. Barker, 31 Barb., 451; Clark v. Mayor of Syracuse, 13 id., 32; Boom v. City of Utica, 2 id., 104; Ely v. Suprs. Nia. Co., 36 N. Y., 300; Mayor of Hudson v. Thorne, 7 Paige, 261; Colchester v. Brook, 53 E. C. L. R., 339; Denies v. Petley, 69 id., 275; De Bow v. People, 1 Den., 9; 1 Dil. on Corp. [2d ed.], 173, §§ 55, 174, 175.) The action of the city is irregular for the reason that it does not appear that the entire land is to be taken for any public use for which the city charter authorizes lands to be taken. (2 Dil. on Mun. Corp. [2d ed.], 556, 557, §§ 457,458; Dunn v. Charleston, Harper [S. C. L. R.], 189; People v. Corp. of Albany, 11 Wend., 539; Embury v. Conner, 3 N. Y., 511; Baltimore v. Clunet, 23 Md., 449.)</p> <p>The city had authority to take the lands for the purpose set forth in the petition. (2 Laws 1870, p. 1199, tit. 8, § 1; 2 Dil. on Corp., 566, §§460, 465, 566; People v. Smith, 21 N. Y., 597; Peck v. Mallums, 10 id., 509; 1 Redf. on R. R. Laws, 256; Rogers v. Bradshaw, 20 J. R., 735; Laws 1858, chap. 62, p. 86; People v. Kerr, 27 N. Y., 188; Boston-water Power Co. v. B. and W. R. R. Co., 23 Pick., 360; In re Fowler, 53 N. Y., 60.)</p>

(Beported below, 3 Hun, 247.) This action was commenced December 23, 1872, to foreclose a mortgage dated June 28, 1871.

<p>An owner of land out of possession has no right of action for injuries to the land until after he has recovered the possession.</p> <p>Where the original entry of the one in possession was tortious, the owner can only recover for the original trespass, not for subsequent acts injurious to the land, such as the felling of trees, etc.</p> <p>In an action of trespass upon lands, plaintiff claimed title under a deed which described the south line of the premises conveyed as running “along the north side of land formerly owned by James Mann,” to whose title defendant had succeeded. The question in dispute was as to the location of this line. To locate it plaintiff gave in evidence an agreement executed in January, 1867, between plaintiff, defendant, defendant’s grantee W., and 0., the owner of lands adjoining defendant on the west, between whom and defendant a litigation was then pending as to their division line. The agreement purported to have been executed to settle this litigation, and also the line between plaintiff and defendant. It provided that W. should procure a surveyor to go upon the land occupied by defendant and make a survey thereof. This land was described in the agreement as a rectangular piece, the east and west lines of which were twenty-six chains sixty-seven links in length. The southerly line was fixed by reference to monuments, and was not in dispute. The agreement further provided that James Mann, a son of the former owner, should designate the line between plaintiff and defendant “ as the same existed when his father occupied ” defendant’s lot, and that so much of the land described as the line so designated cut off W. should pay defendant for at a specified price per acre, defendant to have the privilege to move the fence then standing between his lot and plaintiff’s land on to the line so designated, which should thereafter be the boundary line. The fence referred to ran through woodland. Plaintiff’s evidence tended to show it whs begun before, but not completed until after, the agreement. Defendant’s evidence was to the effect that it was completed before. Plaintiff claimed that the line, as it existed when Mann was owner, was twenty-four links south of this new fence, and the strip of land between the two lines was the locus in quo. The alleged trespass was cutting trees therefrom after the execution of the agreement. Before any thing had been done thereunder defendant served notice of revocation of all authority given to James Mann the younger. W., however, employed a surveyor, who ascertained the southerly and westerly lines as described in the agreement, but ran the northerly line as pointed out by said James Mann, which was the line as claimed by plaintiff; this, the surveyor testified, was but twenty-six chains twenty-four links north of the south line. The testimony as to the location of the line during Mann’s ownership, and as to the possession of the locus in quo prior to the erection of the fence, was conflicting. Defendant offered in evidence the deeds under which he claimed title, which described the land as in the agreement, and offered to prove that they included the locus in quo. This evidence was rejected. Held, error; that notwithstanding the agreement, until the line was ascertained under it defendant was entitled to possession of the land to which he had the paper title; that the designation of the land by Mann after the revocation of his authority was of no effect; that even if the agreement barred defendant from claiming title according to his deed, it did not make a prior entry tortious; that if the land was not fenced when the agreement was made, as it was woodland, neither party had the actual physical possession, and it was material to inquire who had the paper title; that the deeds were competent on the question of possession, and also as showing that defendant’s entry and taking possession was under a bona fide claim of title; and so long as he held possession, even if his title should ultimately prove invalid, he was not liable in trespass for injuries to the land.</p> <p>Defendant also offered to show that at the time of the agreement he was, and ever since had been, in the actual ttod exclusive possession of the locus in quo claiming title. This evidence was excluded, except so far as it tended to show the division line as provided in the agreement. Held,, error.</p> <p>Also, held, that the agreement on its face admitted that defendant was in the occupation of the land therein described, which included the locus in quo.</p>

This action was upon an open policy of marine insurance to recover for the alleged total loss of freight of the brig “ Ocean Wave.” Insurance for $3,600 upon the freight of said brig was underwritten August 16, 1867, on a voyage from Hew York to Galveston, Texas, valued “ as per freight list,” this amounted to $3,609.

This action was brought to recover a balance alleged to be due on an account for services rendered by plaintiff’s testator as county clerk. The items in dispute were principally charges for making searches. Defendant claimed that the legal fees of a county clerk for searches are only those prescribed by section 13 of chapter 342, Laws of 1840, to wit: Ten cents for each conveyance and incumbrance certified.

<p>Where an attorney in an action is in contempt for the violation of an injunction therein, or for any act inconsistent with his relation to the court, and suitors have sustained damage, the remedy is by summary proceedings, not by action.</p> <p>Where a receiver is appointed in an action by a married woman for divorce, in pursuance of the provision of the Revised Statutes (1 R. S., 148, § 60), authorizing the sequestration of the personal property and of the rents and profits of the real estate of the husband, and the appointment of a receiver thereof, when an order for alimony has been granted and defendant has neglected or refused to pay the same, or to give security therefor, such receiver acquires no title to the real estate, but simply is entitled to possession as against defendant and all claiming under him ; and so long as his rights are unquestioned, and there is no interference therewith, either actual or threatened, he has no concern with the title, and cannot maintain an action to determine the validity of transfers thereof by the defendant.</p> <p>Accordingly held, that a receiver so appointed could not maintain an action to set aside a conveyance of the real estate, alleged to have been fraudulently made by the husband after the appointment of the receiver, ■ or to set aside an alleged fraudulent assignment by the husband, of a mortgage received by him upon such conveyance, in the absence of any allegation that defendants had made a claim or asserted a title adverse to the rights of irlaintiff.</p> <p>Also, held, that an action could not be maintained by the receiver to restrain an assignment by the assignee of such a mortgage, or to restrain the foreclosure thereof.</p> <p>It seems .that any proceedings to compel an application of the rents and profits of the husband’s real estate, or in any way to compel the payment of the alimony from the property, should be brought by the wife.</p> <p>It seems, also, that had the assignee of such a mortgage asserted an adverse claim to the rents and profits of the real estate, the wife would have had q, remedy by an order for the examination of the claimant pro int&resse suo, and such proceedings thereon as would lead to a determination of the rights of the parties.</p>

This action was upon a policy of insurance issued by the defendant, by its terms for three years from March 21,. 1873. It is reported upon a former appeal in 62 Mew York, 598.

The complaint in this action sets forth, in substance, that plaintiff is the owner of property situated on Seventy-seventh street, in ¡New York city. That an assessment of $7,000 and upwards has been imposed upon his property for regulating that street. That such assessment is in the nature of a judgment, and that he never had notice of the same until after the confirmation of the assessment by the board of revision.

Appeal by plaintiffs and defendant from an order of the General Term of the Supreme Court in the third judicial department affirming an order at Special Term, which vacated a satisfaction-piece, executed by the plaintiffs of a judgment in their favor herein. The motion was made on behalf of William W. Taylor, who claimed as assignee of the judgment.

(Reported below, 2 Hun, 542.) This action was brought to set aside and vacate a deed executed by defendant Winner as sheriff of Sullivan county, to defendant Purvis, of certain lands sold by the former on execution. The facts, as found by the court, were in substance, as follows: On the 16th January, 1869, the said sheriff sold the lands in question, by virtue of several executions against James P. Overton; they were bid off by the defendant Purvis.

This action was brought for an accounting on the part of defendant Sheldon as executor and trustee under the will of Daniel Embury, deceased, concerning the rents, profits and income of the estate in his hands, and to require him to pay over a share thereof claimed by plaintiff. The complaint set forth in substance the following facts: Daniel Embury, Sr., made his will in February, 1861. He died in 1864.

This action was brought by plaintiff as one of the executors of the will of Abijah Mann, Jr., against his co-executors and the legatees and devisees under the will, to procure a construction of its provisions and those of a codicil annexed, and to obtain the direction of the court as to certain matters in dispute concerning the same. The will was executed on the 30th of September, 1865, and contained, besides' many other devises and bequests, the following : Item.

These are appeals on the part of Frederick H. Gossett and ¡Nathan ¡D. Higgins, purchasers, from orders of the General Term of the Supreme Court in the first judicial department affirming orders of Special Term requiring said purchasers to complete their purchases. The facts appear sufficiently in the opinion. Plaintiffs’ testator never acquired title to lot No. 13.

(Reported below, 7 Hun, 668.) The requirements of the writ and the facts are set forth sufficiently in the opinion. There was no legal authority for the board of supervisors to grant the permission to raise money for the purposes desired. (People ex rel. Fowler v. Bull, 46 N. Y., 57; People v. Hills, 35 id., 449; People v. O'Brien, 38 id., 193; People v. Suprs., 43 id., 10; People ex rel.

The complaint in this action alleged in substance, that the parties entered into a contract — which was annexed — in pursuance of which, defendant, as the agent of plaintiff, manufactured and sold a quantity of iron, but failed to account to plaintiff therefor and converted the same to his own use in violation of the provisions of said agreement. It asked that defendant be required to account, and for judgment for the balance unpaid to the extent of plaintiff’s claim.

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 verdict. (Reported below, 8 Hun, 440.) The facts are sufficiently stated in the opinion. A de jure officer has the sole right to the salary of his office, and may recover the same from the public treasury, although it has been paid to an intruder.

(¡Reported below, 6 Hun, 604.) This action was brought to recover damages for injuries alleged to have been sustained by plaintiff by falling into an excavation made by defendant’s testator, Joseph Carter, who was the original defendant, on his land situated in the village of Bath. Said Carter was the owner of a lot of land on the northeast corner of Buell street and Exchange alley or street in the village of Bath.

These are appeals from judgments of the General Term of the Supreme Court in the third judicial department in favor of defendants, Wheeler, Griswold & Hoysradt, entered upon orders reversing orders overruling demurrers on the part of said defendants to the complaints in the actions above entitled, and directing judgments for said defendants upon demurrer. (Reported below, 3 T. & C., 557.) The actions were substantially alike.

(Reported below, 5 Hun, 555.) This action was upon an award of arbitrators. The facts appear sufficiently in the opinion. The agreement of plaintiff was reasonable and valid. (Nobles v. Bates, 7 Cow., 307; Mott v. Mott, 11 Barb., 127; Dunlap v. Gregory, 10 N. Y., 241; Holbrook v. Waters, 9 How., 335.) As the terms of the submission do not exclude the idea of a legal agreement, it will be assumed that it was not illegal.

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department affirming a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 5 Hun, 523.)</p> <p>This action was brought against defendant as a common carrier of passengers to recover damages for injuries alleged to have been received by plaintiff while a passenger on one of its steamboats, through its negligence.</p> <p>On September, 8, 18J3, plaintiff went on hoard of defendant’s steamboat St. John, then lying at the wharf in the city of New York, to take passage to Albany. As the boat started he was standing in front of the gangway opening, where he had entered, some four or five feet inside the bulwarks, but outside the partition, between the gangway and main part of the boat. Defendant had provided a gate to close the gangway opening, the top bar of which projected at each end. The projecting ends of this bar, when the gate was in its place, rested in iron staples at each end of the opening, to prevent the gate from swinging, and there were two upright stanchions placed ontside the gate, let into the deck. There was also a top rail which received the stanchions, and which, when in place, was secui-ed by iron slides. The referee found “ that the opening of the said gangway was, when the gate, stanchions and top rail were in their places, arid the fastenings were in their places, properly and sufficiently closed, and that such gate, stanchions, top rail and fastenings, when in their places, were, in construction and quality, sufficient for the protection of passengers.”</p> <p>Before the boat left the wharf, the mate had put the gate in place. He requested the passengers to step inside, but plaintiff did not hear the request. As the boat moved out, persons on board attempted to jump ashore, but fell into the water. This caused a sudden rush of a crowd of passengers to the side. Plaintiff was pushed against the gate. One of the projecting ends of the top bar had been lifted out of the staple by some unauthorized person after the boat started. The pressure caused the gate to give way, although it was not broken, and plaintiff fell overboard. The mate of the steamer, at the time of the accident, had turned to get the stanchions and top rail to put them in their places.</p> <p>At the close of the evidence defendant’s counsel moved for a nonsuit, which was denied, and said counsel duly ezeepted.</p> <p>The referee found that the leaving the gangway opening after the steamer had left the wharf without the full and proper protection provided was negligence.</p> <p>Further facts appear in the opinion.</p> <p>Defendant was not guilty of negligence. (Putnam v. Broadway and Seventh Avenue Railroad Co., 55 N. Y., 108; Dougan v. Champlain, Tr. Co., 56 id., 1; Joy v. Win. Co., 114 Mass., 63; Crocheron v. N. S. S. I. F. Co., 56 N. Y., 656; Cornman v. E. Cos. R. Co., 4 H. & N., 781; Littlefield v. City of Norwich, 41 Conn., 406; Crafter v. Met. R. Co., 1 Jur. [N. S., Pt. 1.], 272.) No presumption of negligence arises from the mere fact that an accident has happened, (Curtis v. Roch. and S. R. R. Co., 18 N. Y., 534; Aston v. Heaven, 2 Esp., 533; Hammack v. White, 11 C. B. [N. S.], 588; Livingston v. Adams, 8 Cow., 175; Jackson v. Bellevue, 30 Wis., 237; Putnam v. B. and Seventh Avenue R. R. Co., 55 N. Y., 108; C. B. and I. R. v. Hazzard, 26 Ill, 373; 2 Redf. on R. R. [3d. ed.], 200, par. 19, 20; Milton v. H. R. Stbt. Co., 37 N. Y., 210; 11 C. B. [N. S.], 596; 103 Eng. C. L. [4 H. & N.], 781.) The burden was on plaintiff to show actual fault on defendant’s part, causing directly, necessarily and exclusively his injury and he could not recover. (Dygert v. Bradley, 8 Wend., 472; Kelsey v. Barney, 12 N. Y., 425; R. R. Co. v. Reeves, 10 Wal, 176; Brown v. E. and N. A. R. R. Co., 58 Me., 384; Inst. 4, tit. 3, De lege Ag.; Cotton v. Wood, 8 C. B. [N. S.], 568; Toomey v. L. Br. and S. C. R. Co., 3 id., 146; Milton v. H. R. Stbt. Co., 37 N. Y., 210; 56 id., 656; 49 id., 47, 57.) Plaintiff’s negligence contributed to the accident and he cannot recover. (Brown v. Maxwell, 6 Hill, 592 ; Wild v. H. R. R. R. Co., 24 N. Y., 430; Button v. H. R. R. R. Co., 18 id., 248; Bowen v. N. Y. C. R. R. Co., id., 408; Ernst v. H. R. R. R. Co., 39 id., 61; Spooner v. Brooklyn City R. R. Co., 31 Barb., 419; 36 id., 217; Van Schaick v. H. R. R. R. Co., 43 id., 527; Roulston v. Clark, 3 E. D. S., 366; Lehey v. H. R. R. R. Co., 4 Robt., 204; Garet v. M. and L. R. R. Co., 16 Gray, 501; Bancroft v. B. and W. R. R. Co., 97 Mass., 275; Morrison v. Erie R. Co., Alb. L. J., January 9, 1875.)</p> <p>Defendant was liable as a common carrier of passengers. (S. & R. on Neg., §§ 262, 263, p. 304; Gordon v. G. St. R. Co., 40 Barb., 546.) Defendant was bound to use to the utmost the care and diligence of a very cautious person. (S. & R. on Neg., § 266 and note; Brown v. N. Y. C. R. R. Co., 18 N. Y., 408; Maverick v. Eighth Avenue R. R. Co., 36 id., 378; Caldwell v. N. J. Stbt. Co., 47 id., 282; Carroll v. S. I. R. R. Co., 58 id., 26; Flint v. Nor. Tr. Co., 34 Conn., 554; P., Ft. W. and C. R. Co., v. Hinds, 53 Penn., 512; Simson v. N. B. Stbt. Co., 97 Mass., 361; Putnam v. B. and Seventh Avenue R. R. Co., 55 N. Y., 113; Wicoff v. Queens Co. Ferry Co., 52 id., 32; Clark v. Un. F. Co., 35 id., 485.) The omission of defendant’s servants to put in the stanchion posts and put on and secure the top rail before starting, was negligence. (Curtiss v. R. and Syr. R. Co., 18 N. Y., 534; Jetter v. N. Y. C. and H. R. R. R. Co., 2 Keyes, 154.) Plaintiff was not guilty of contributory negligence. (Brown v. B. and S. L. R. R. Co., 22 N. Y., 191.)</p>

This action was upon three certificates of deposit issued by the Suffolk County Bank, an individual bank, in carrying on the business of which plaintiff alleged that defendant and William Adams, deceased, were partners.

(Mem. of decision below, 6 Hun, 304.) Said village was incorporated under the general act for the incorporation of villages. (Chap. 291, Laws of 1871.) Upon the hearing before the county judge the collector of the said village was called as a witness for the applicants and produced a paper which he testified was the tax list of the village of 1874, and that he was collecting the taxes thereon This was offered in evidence.

This action was brought to charge the separate estate of defendant, a married woman, with the payment of a joint and several promissory note made and executed by her and her husband. The case has been twice before in this court.

The relief asked in the complaint in this action was in substance that plaintiff recover the amount of a chattel mortgage held by him, that the amount thereof be paid by defendants, Van Sicklen and Pickering, out of the amount in their hands remaining unpaid upon a judgment obtained by defendant Oliver against them, and that said Van Sicklen and Pickering be enjoined from paying, and said Oliver from enforcing the said judgment until the further order of the court.

The facts sufficiently appear in the opinion. The evidence presented to an officer upon an application for an attachment must show a clear prima facie case within some of the provisions of section 229 of the Code. (Mott v. Lawrence, 17 How. Pr., 559; O’Reily v. Friel, 37 id., 272; Frank, v. Levi, 5 Robt., 599; Danzer v. Munday, id., 636; Skiff v. Stewart, 39 How.

The nature of the appeal and the facts are set forth sufficiently in the opinion. The order of reference was without jurisdiction, and is therefore appealable. (Tracey v. First. Nat. Bk. of Salina, 37 N. Y., 523; Townsend v. Hendricks, 40 How. Pr., 143, 161; People v. Hawes, 34 Barb., 69; Batchellor v. Alb. City F. Ins. Co., 31 N. Y. Supr. C., 346; 6 Abb. [N. S.], 240; Atkinson v. Allen, 12 Vt., 617; Bridgeport Ins.

(Reported below, 5 Hun, 572.) This action was brought to recover certain premises sold on execution against defendant John McMullin, and to have a deed thereof, held by defendant Bell, declared a lien only.

<p>A promise for a valid consideration by A. to B. gives no right of action to 0., he being neither privy to the contract nor to the consideration, unless it was made for his benefit and he was the party intended to be benefited; the fact that a benefit would inure to him from the performance is not sufficient.</p> <p>M. assigned to plaintiff a bond and mortgage to secure $500 executed to him by B. B., without notice of the assignment, paid the bond to M. M. thereafter executed a hond to B. in the penal sum of $1,000, conditioned that if the obligor pay to plaintiff the amount of the bond and mortgage and save B. harmless therefrom the hond should he void. Defendant guaranteed the payment of the hond. In an action upon the guaranty, the court found that the hond was made and guaranteed for the purpose of securing to plaintiff the amount unpaid to him. Held, that if this was to he considered as a finding that the hond was given and guaranteed for the benefit of plaintiff, it was not sustained by the evidence; and that the action could not he maintained, as the obligation was not to pay to plaintiff, hut to B., and the condition was not a promise hut an alternative for the benefit of the obligor, providing a way by which he might he discharged from his obligation.</p> <p>B., without plaintiff’s knowledge or consent, executed under his hand and seal a written instrument expressing a consideration, acknowledging full satisfaction of the hond, and consenting to its cancellation; no consideration, was in fact paid. B. subsequently assigned the hond to plaintiff. Held, that the instrument was an extinguishment of the hond and guaranty so far as B. had a right therein, and he could thereafter transfer no interest to another.</p> <p>As to whether, if it should he conceded that plaintiff acquired a good title to the bond by the assignment, it could be held that there was a nonperformance of the condition, the bond being in effect simply a hond of indemnity, qumre.</p>

This action was brought by plaintiff, as the assignee in bankruptcy of William A. Woodbridge and Stephen M. Jewell, to recover a balance of deposits to their credit in defendant’s bank at the time of the presentation of the petition in bankruptcy. The facts sufficiently appear in the opinion. The injunction placed upon defendant by the Supremo Court was not dissolved by the proceedings in bankruptcy, and was a good defence to this action (Sutherland v. Davis, 10 Bk.

<p>Appeal from judgment of the General Term of the Oity Court of Brooklyn affirming a judgment in favor of defendant, entered upon an order dismissing plaintiff’s complaint on trial.</p> <p>This action was brought upon a promissory note executed by defendant.</p> <p>It appeared that defendant being indebted to plaintiff for a bill of goods purchased by her, delivered to him the note, and also an assignment of a bond and mortgage. Plaintiff, at the same time, executed and delivered "to defendant an instrument, of which the following is a copy:</p> <p>“ I, John Wood, of ISTo. 178-180 Pulton street, Brooklyn, hereby acknowledge that I have received from Mrs. Bridget Sheehan, of Troy avenue, Brooklyn, an assignment of a bond and mortgage made by one Benjamin Griffiths to Peter Sullivan, dated January 2, 1872, recorded in liber 1057 of mortgages, page 270, in full payment of the above bill of goods; and I also acknowledge to have received from Mrs. Sheehan her note payable to my order twelve months after date for the sum of $1,248, as collateral security to said bond and mortgage ; and I hereby covenant not to use said note until the expiration of said twelve months ; and in event of my selling or disposing of said mortgage within said twelve months, I hereby bind myself to return the said note to Mrs. Sheehan. And I further agree, in the event of my not having disposed of the said mortgage on the first day of May next, to deliver it or the note to Mrs. Sheehan, so that after that day I shall not hold both securities.</p> <p>“ Dated Brooklyn, October 26, 1872.</p> <p>“ JOHN" WOOD.”.'</p> <p>Plaintiff gave evidence to the effect that some time during the month of May, 1873, he mailed a letter to the defendant stating in substance that the mortgage had not been paid, and asking to whom he should assign it; that on the next day defendant’s husband, who acted as her agent in the transaction, called upon him; that he stated that he was ready to reassign the mortgage, but that Mr. Sheehan replied that he did not want it assigned, and if plaintiff would hold on to it for a short time it would be paid; that he was sure it would be paid before the note became due. Plaintiff did not offer or tender back the bond and mortgage on the said first day of May, but tendered them to her husband, with an assignment thereof to her, before the commencement of the suit. Plaintiff transferred the note before it became dire but subsequently purchased it back.</p> <p>Plaintiff’s counsel asked the court to submit the question to the jury whether defendant did not waive an election on the 1st day of May, 1873, by plaintiff, between the note and the bond and mortgage, which was refused, and the complaint dismissed. To which said counsel duly excepted.</p> <p>Defendant having solicited an extension cannot use it as a defence. It could be granted by parol without any new consideration. (Esmond v. Van Benschoten, 12 Barb., 370; Dearborn v. Cross, 7 Cow., 48, 50; Stone v. Sprague, 20 Barb., 515 ; Lattimore v. Harsen, 14 J. R., 330; Delacroix v. Buckley, 13 Wend., 71; Moses v. Bierling, 31 N. Y., 462; Dodge v. Crandall, 30 id., 294; Clark v. Dales, 20 Barb., 42; Bristol v. Tracy, 21 id., 236.)</p> <p>Plaintiff had not performed the condition precedent, which would have given vitality to the note as a separate or independent security. (Miller v. Gambie, 4 Barb., 146; Seymour v. Cowing, 1 Keyes, 532; Miller v. Ritz, 3 E. D. S., 253; Rogers v. Smith, 47 N. Y., 324; Barton v. Martin, 52 id., 570; Petry v. Christy, 19 J. R., 53; Chitty on Bills, 72, 77.)</p>

These were appeals, the one from an order of the General Term of the Supreme Court, in the first judicial department, reversing an order of Special Term vacating an attachment, the other from an order of said General Term, denying a motion to dismiss the appeal from the Special Term order. The attachment was issued against defendants as non-residents.

Appeal, by the commissioners of highways of the town of Penfield, Monroe county, from order of the General Term of the Supreme Court in the fourth judicial department affirming an order of Special Term in proceedings instituted under chapter 639, Laws of 1857. The facts sufficiently appear in the opinion. The Special Term had no authority or jurisdiction to make the order appealed from. (In re Pet.

Clément, a purchaser, to complete his purchase herein. (Reported below, 9 Hun, 185.) This was an action for the foreclosure of a mortgage upon premises _ in the county of Kings. Thé judgment was perfected in June, 1876, and directed a sale of the mortgaged premises by a referee named, and the sale was so made.

This action was brought to recover damages for injuries to plaintiffs’ canal boat Milton Hoag resulting from a collision with defendant’s ferry boat Baltic, alleged to have been caused by the negligence of defendant’s employes. The case upon a former appeal is reported in 47 Hew York, 176. Plaintiffs’ evidence upon the second trial was substantially the same as upon the first.

<p>Under the provisions of the banking act of 1870 (chap. 163, Laws of 1870), prohibiting banks from charging upon any discount a rate of interest greater than seven per cent, and in' case a greater rate of interest has been paid, authorizing a recovery by the party paying it of twice the amount, it is not necessary that the payment should be made in money to subject the receiver to liability.</p> <p>Where commercial paper is transferred to and discounted by a bank at a greater rate of interest than seven per cent, and the net proceeds, after deducting the interest charged, are credited to the transferer, this is a payment within the meaning of the statute.</p> <p>The fact that the paper discounted is business paper, so that the purchase thereof is not usurious under the general statutes, does not relieve from liability under said act.</p>

This action was for goods sold. The referee found, in substance, that at the time of the alleged sales defendant, a married woman, was carrying on the business of baking in the city of Hew York; that her husband, Frederick W. Persch, as her agent, bought of plaintiffs the goods in question, consisting of flour and groceries, informing plaintiffs at the time that he was buying as agent for defendant; that plaintiffs charged the goods upon their books to Mr. Persch, but in so…

These were appeals from judgments of the General Term of the Supreme Court in the fourth judicial department, reversing the action of the town commissioners and assessors-of certain towns in ISTiagara county, under the act chapter 811, Laws of 1868, as amended by chapter 2él, Laws of 1869, in proceedings to bond said towns in aid of the Lake Ontario Shore railroad, and also vacating and setting aside the appointment of the commissioners.

The nature of the action and the facts are set forth sufficiently in the opinion. Sections 114 and 116 of chapter 335, Laws of 1873, entitled “An act to reorganize the local government of the city of New York,” abolishing the salaries of supervisors of said city and county is unconstitutional, the act being a local act. (People ex rel. Monheimer v. Green, N. Y. S. C., 1873; People ex rel.

The case was removed to the Supreme Court, under and by virtue of chapter 239, Laws of 1873, section 7. The nature of the action and the facts are set forth sufficiently in the opinion. To vitiate a payment made by an insolvent within four months of his filing his petition in bankruptcy, a guilty collusion between the debtor and creditor to give a preference must be shown.

The nature of the action and the facts are set forth sufficiently in the opinion. The fraudulent representations of the defendant entitled plaintiff to recover. (Whitney v. Allaire, 1 Comst., 305; Coop v. Handy, 41 Barb., 454; 2 Add. on Torts, 1018, 1019.) The law did not impose upon plaintiff the necessity of exercising any extraordinary degree of vigilance in detecting the falsity of defendant’s representations.

<p>A policy of fire insurance contained a condition, that “if a building is insured that is on leased land, the same must be specifically represented to the company and expressed in this policy in writing; otherwise the insurance shall be void.” A building insured was on leased land, and this fact was not expressed in the policy; it was known, however, to defendant’s agent, to whom application for the policy was made. In an action upon the policy, held (Allen, Bapallo and Earl, JJ., dissenting), that, as the knowledge of the agent was the knowledge of the defendant, his principal, when it accepted the risk, it had information that the building stood upon leased ground; that it was to be presumed that defendant had overlooked the condition, and so had forgotten to express the fact in the policy, or that it waived the condition or held itself estopped from setting it up; as to presume otherwise, would be to impute to defendant a fraudulent intent in issuing a policy known by it to be invalid.</p> <p>Pinda/r v. Resolute Ins. Go. (47 IT. Y., 114), Rohrbaek v. Germania Ins. Go. (62 IT. Y., 613), Ripley v. The UStna Ins. Go. (30 IT. Y., 136), distinguished.</p> <p>Application for the policy was made to L,, who was engaged in the insurance business in partnership with D.; the latter was the commissioned and nominal agent of defendant; as to plaintiff, L. acted as agent with the assent of D., which action was known to defendant and not disapproved of. A joint commission had been promised to L. and D., which was issued before the delivery of the policy. Held, that defendant was bound by the acts and the knowledge of L.</p>

This action was upon an account. At the close of the evidence on the trial, defendants’ counsel moved for a dismissal of the complaint. ISTo decision of this motion was made at the time. The referee subsequently made his report in the ordinary form, with findings of fact adverse to plaintiff; and, as a conclusion of law, found “ that the complaint in this action be dismissed.” Plaintiff duly excepted to the findings of fact and to said conclusion of law.

The nature of the action and the facts are set forth sufficiently in the opinion. The decree of the United States District Court did not' estop plaintiff or bar a recovery in this action.

This was an action of ejectment to recover a small triangular strip of land, the title to which depended upon the location of a disputed boundary line between the adjoining lots of the parties, situate in the village of Herkimer. Plaintiffs lot lies south of that of defendants; and the dispute was as to the commencement of the boundary line on Main street, in said village.

(Reported below, 6 Hun, 225.) This was an action to foreclose a mortgage. The defendants Lowenstein did not appear and judgment was entered against them by default on the 14th May, 1872. On the 31st May, 1872, said defendants served affidavits and notice of motion that the judgment be opened, and that they be let in to defend, which motion papers were indorsed “R.-W. Townsend, attorney for defendants Lowenstein.” Mo other notice of appearance was served.

(Reported below, 6 Hun, 257.) This was an action of ejectment. The land in question was a narrow strip, lying along the sea front of defendant’s farm, in the town of East Hampton, Suffolk county, and between high-water of the bay and the “ cliff ” or upland. Plaintiff claimed title under what is known as “ Dongan’s patent,” issued by Governor Dongan to plaintiffs in 1686, in trust for the use of the inhabitants of the town which included the locus in quo.

<p>Appeal from order of the General Term of the Supreme Court in the second judicial department affirming an order of Special Term denying a motion for a mandamus.</p> <p>- The affidavit of the applicant set forth, in substance, that in November, 1873, he was duly elected alderman of the Fifth ward of the city of Brooklyn under and in pursuance of the charter (chap. 863, Laws of 1873), and that he entered upon the duties of such office January 1, 1874, and that as alderman he was ex officio supervisor; that, under the provisions of the act chapter 633, Laws of 1875, in November, 1875, one Henry Carr was elected alderman and one Henry P. Coates supervisor ; that said act was in violation of the amendment to the State Constitution, adopted January, 1875 (§§ 18 and 22, art. 3), and that said act, therefore, and all acts done under it were void; that Edward P. Cadley, the clerk of the board of supervisors of Kings county, refuses to call deponent’s name as a member of the board, or to record his vote, or to recognize him in any way as a member of said board; that the attorney-general refused to commence proceedings by quo wmranto to try the applicant’s title to the office.</p> <p>The motion was for a writ directed to the clerk requiring him to call the name and record the vote of the applicant at all meetings of the board and to recognize him as a member thereof.</p> <p>A mandamus is a proper remedy to set aside a void election. (Rex v. Cathmartin, Burr., 2008; Rex v. Colohester, 2 T. R., 259; Rex v. Askew, Burr., 2186; Rex v. Cambridge, id., 2008; Mawbray v. Madison, 1 Cranch, 186; Comm. v. Rositer, 2 Binn, 262; Rex v. Nottingham [N. P.], 480; 6 A. & E., 355; Rex v. Binghamton, 7 id., 559; Queen v. East. R. R. Co., 10 id., 53; People v. Mead, 24 N. Y., 114.) The petitioner has no other remedy. (Laws 1873, chap. 863, § 6; 2 Salk., 436; Haywood v. Marshal, 9 Md., 83; Drew v. Judges of Clear Spring, 3 H. & M., 1; Strong’s Case, 20 Pick., 497.) The writ was properly directed to the clerk. (1 R. S., m. p. 367, § 9.)</p> <p>A mandamus will not. lie in a ease like the one at bar. (People v. Suprs. of Chenango, 11 N. Y., 573; People v. City of N. Y., 3 Johns. Cas., 79; People v. Scrughan, 25 Barb., 216; Doolittle v. Suprs. Broome Co., 18 N. Y., 155; King v. Mayor, etc., 2 D. & E., 259; People v. Stevens, 5 Hill, 616; Mott v. Connolly, 50 Barb., 516; Demarest v. Wickham, 13 Alb. L. J., 62; Moses on Mandamus, 150; Comm. v. Co. Comrs., 5 Rawle, 75; State v. Albin, 44 Mo., 346; McCrary Am. Law of Elections, § 322; High on Ex. Ren., § 50; People v. Hawkins, 46 N. Y., 9; People v. Fay, 3 Lans., 398; People v. Thompson, 25 Barb., 73; People v. Attorney-General, 22 id., 114; People v. Attorney-General, 15 Sup. Ct. R., 334.)</p>

<p>Under the provision of the act of 1847 (chap. 410, Laws of 1847), providing for the redemption of lands sold on execution, a redemption made by a creditor on or after the last day of the fifteen months, must be made at the sheriff’s office, to the officer who made the sale; if the sale was made by a deputy sheriff, the redemption must be made to him, although the sheriff be present; it is only in case of his absence from the office that redemption can be made to the sheriff. (§ 3.)</p> <p>A deputy sheriff may execute deeds of land sold by him and receive redemption after the expiration of the term of office of his principal; and although such term has expired, redemption must be made to him if in attendance at the sheriff’s office, and not to the present sheriff, his under sheriff or deputies.</p> <p>Livingston v. Arnoux (56 FT. Y., 507) distinguished.</p> <p>In opposition to an application by McA. for a mandamus to compel a sheriff to deed to the relator lands sold by said sheriff on execution, and which the relator claimed to have redeemed; the sheriff produced the papers in proceedings by L. for a mamdcmus to compel the sheriff to deed to him, whereby it appeared that the application of L. was opposed upon the affidavit of McA., among others, setting forth his claim; the court granted the motion and ordered that a peremptory mamdamus issue; that the sheriff and McA. both appealed, and the order was affirmed; the sheriff and McA. thereupon appealed to this court, where McA’s appeal was dismissed, on the ground that he, not being a party, had no right to appeal. The sheriff died during the pendency of his appeal; McA. moved to revive the proceedings, which was denied, on the ground that there was no authority to substitute any one. Seld, that McA. was not concluded by said proceedings, as he was deprived of the benefit of a final adjudication therein.</p>

The facts submitted were in substance as follows: On the 6th day of July, 1874, under the amended charter of the city of Albany (chap. 77, Laws of 187Ó), the mayor elected at the charter election of that year, and who took office on the first Tuesday of May for two years, nominated John 2ST. Parker to the office of street commissioner, but the common council refused to consent or approve, and the then incumbent held over.

(Reported helow, 4 Hun, 619.) This action was brought to obtain a judicial construction of the will of James B. Murray, late of the city of Hew York, and of a codicil thereto. The clauses of the will relating to the question presented on this appeal are as follows: “ Secondly.

This action was brought upon the following contract: “ This memoranda of agreement, made this eleventh day of August, 1870, between Edwin D. Morgan of the first .part and Charles Moran, Charles Congreve & Son, and J. S. Kennedy & Co., of the second part, witnesseth: The said parties of the second part agree to sell to the said party of the first part the bonds of the Texas and Rew Orleans Railroad Co., and the said party of the first part hereby agrees to purchase said bonds…

This action was brought to have a deed, absolute on its face, declared a mortgage, and for an accounting and reconveyance on payment of amount due.

This action was brought to recover for work and labor alleged to have been performed by the plaintiff for defendant in constructing and grading a race-track at Glen Mitchell, Saratoga county. The answer alleged, in substance, that the work was done under a contract which plaintiff failed to complete and perform.

The question presented was, as to whether defendants or relators were lawfully entitled to hold the office of commissioners of excise for the city of Albany.

This action was for the alleged conversion of. a promissory note, the property of plaintiff, made by one Holly, payable to plaintiff’s order. The facts appear sufficiently in the opinion. Defendant’s act in parting with the note did not amount to a conversion.

<p>In an action upon a judgment, in case the judgment roll has been lost or destroyed, secondary evidence may be given of its contents.</p> <p>It being the duty of the county clerk to have and keep the roll on deposit in Ms office (Code, §§ 281, 282), if it cannot be found in the particular place provided for such deposit, the presumption is that it is lost or destroyed.</p> <p>Where a lost paper, which was the basis of official action, was of a kind usually drawn up in accordance with a statute, and usually following a printed form devised therefor, it is to be presumed that the paper was in the usual form, and followed the requirements of the statute.</p> <p>An attorney is not authorized by his retainer, to satisfy a judgment without payment, or to compromise or release the same ; nor can he settle a suit and conclude his client in relation to the subject in litigation without consent of the latter.</p> <p>In an action under the Code, where the action or defence is based upon a judgment or other judicial record, the record may be attacked and impeached for fraud or for collusion, with knowledge and in disregard of the rights of the party attacking it; such party is not bound to resort to an action or proceeding direct for the purpose of avoiding the record.</p> <p>The language of the Revised Statutes in relation to the docketing and satisfaction of judgments (2 R. S., 362, § 26), to the effect that a judgment shall be deemed satisfied to the amount returned collected on an execution issued thereon “unless such return shall .be vacated by the court,” does not, under the Code, require a vacation to be sought by motion or action directly to that end; and in an action on a judgment, defended upon the ground of an entry of satisfaction, the satisfaction may be attacked for collusion or fraud, and a judgment for the plaintiff is as effectual a vacatur, as if one had been obtained in a direct proceeding.</p> <p>In an action upon a judgment alleged to have been recovered by confession, after proof that the judgment roll could not be found in the county clerk’s office, the “ judgment book ” required to be kept by the county clerk for the entry of judgments (Code, §§ 279, 280) was produced, which contained an entry of a judgment in the Supreme Court in favor of plaintiff’s assignor against defendant, as follows: “ Judgment, October 4, 1853; on filing of this statement and confession it is adjudged by the court that the plaintiff do recover of the defendant the sum of $2,346 damages, and $5 costs.” The clerk who entered the judgment testified that he had no recollection of the case, but that he would have made no entry without something before him to found it on. The docket of judgments was also produced, in which the judgment was regularly entered. Plaintiff testified that, just prior to the date of said judgment defendant, told him that he was about to make a confession of judgment in favor of said assignor on old matters, and it was proved that defendant afterwards recognized the judgment as existing and valid. Held, that the evidence was sufficient to establish that at the time of the entry in the judgment book there was a roll or statement, which authorized the entry of a judgment by confession, and that it was for money due.</p> <p>Leland v. Cameron (31 N. Y., 115) distinguished.</p> <p>Also, held, that declarations of defendant that there had been a judgment confessed for a pre-existing debt were competent.</p> <p>D., who had been the attorney of plaintiff in a former action to enforce the judgment, after he had testified as a witness for plaintiff that he did not recollect that he had ever seen the roll, was shown certain letters written by him, containing statements referring to the roll, to the facts stated therein, and to the affidavit of defendant attached thereto ; these statements were read .aloud in the hearing of the court and jury, without objection, and the witness was then asked if they were correct; this was objected to, overruled and exception taken. The witness answered that he supposed them correct at the time. Held, that the evidence was properly received ; that the letters were to be considered as memoranda made at or near the time when the attorney became possessed’of the facts narrated; and that it would have been permissible to have read those portions of the letters themselves in evidence.</p> <p>The assignment to plaintiff of the judgment was in 1854. Defendant proved an assignment of it from H, plaintiff’s assignor, to E., executed in 1855, to which plaintiff was a subscribing witness, and a satisfaction-piece from E, acknowledged in 1856 ; also an execution upon the judgment, signed by the attorneys who procured it, dated in 1867, upon which was indorsed a direction to the sheriff to return the same satisfied, signed by said attorneys, and a return in accordance with such direction signed by the sheriff; also an entry in the docket of judgments following the entry of the judgment, as follows : “fi. fa. returned satisfied.” Defendant also read in evidence an order entitled in an action by the plaintiff, against the defendant herein, dated in 1869, to the effect that upon filing stipulation of the attorneys for the parties, and upon their consent in open court, it was ordered that the entry of satisfaction of said judgment be ratified and confirmed. Plaintiff gave evidence showing 'that the second assignment was drawn by, and executed in compliance with the suggestion of, defendant, for the convenience of the parties, so that the assignee might act as plaintiff’s agent to receive payment during plaintiff’s contemplated absence, all the parties having knowledge of the prior assignment; that the assignee was not authorized to arrange the matter save upon payment of the judgment in full; that plaintiff never authorized the issuing of an execution; that, it and the indorsements upon it were in defendant’s handwriting, although signed by the attorneys of record, and that nothing was overpaid by defendant for the satisfaction of, or upon the judgment. Held, that the attorney had no authority to direct the return of the execution unsatisfied, or to compromise and release the judgment, and'the fact that the compromise was put into the form of a stipulation, and an order entered thereon, gave it no greater efficacy; nor had the second assignee authority to give satisfaction without payment in full.</p> <p>Also, held, that the satisfaction entered upon the docket of. the judgment and the order entered upon the stipulation and consent of the attorneys could be impeached and avoided in this action.</p>

<p>Appeal from judgment of the General Term of the Supreme Oourt in the third judicial department affirming a judgment in favor of plaintiff, entered upon a verdict.</p> <p>This action was brought to recover damages for the loss of some cattle drowned by the partial swamping of a scow in which they were, and which was being towed across the St. Lawrence river by plaintiff’s steam-tug. It is reported upon a former appeal in 57 New York (p. 236).</p> <p>The facts sufficiently appear in the opinion.</p> <p>The question to defendant’s witness, whether the scow was seaworthy, was improperly excluded. (Moore v. Westervelt, 27 N. Y., 234; Curtis v. Gano, 26 id., 426; Price v. Powell, 4 id., 322; Rust v. Eckler, 41 id., 488.) The court erred in allowing plaintiff to show that the scow was towed at a less rate of speed after the accident.- (Dougan, v. Champ. Tr. Co., 56 N. Y., 1.) The court erred in allowing the question to the witness Hicholas Cavanaugh, “ was there any difficulty whatever in towing her at such a velocity that she would have been safe ? ” (Cleveland v. Stbt. Co., 5 Hun, 529; Mayor, etc., v. Pentz, 24 Wend., 668; Teall v. Barton, 40 Barb., 137.)</p> <p>The testimony of Nicholas Cavanaugh as to the seaworthiness of the scow was properly received. (1 Greenl. Ev. [Redf. ed.], § 440; Price v. Powell, 3 N.Y., 322.)</p>

<p>Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of I7ew York, affirming a judgment in favor of plaintiff, entered upon an order overruling a demurrer to the complaint.</p> <p>This action was brought to vacate and set aside certain assessments and taxes as a cloud upon plaintiff’s title. The facts alleged in the complaint were, in substance, as follows: In 1852, the defendant granted to William and Milton G. Smith certain land under water, in 27ew York harbor, including the southerly half of Stanton street, saving and reserving so much thereof as formed part of Stanton street, for the use and purposes of a highway, with an obligation on the part of the Smiths to build certain streets, including the southerly half of Stanton street, and to keep such streets forever in repair; also to build certain piers or wharves opposite the land so granted, including one at the foot of the southerly half of Stanton street, at their own cost, which wharves or piers said Smiths were forever thereafter to keep in repair, and said streets and wharves or piers were forever to be public streets and wharves or piers; said Smiths were granted a perpetual right to all wharfage, cranage, benefits and advantages growing or arising from such wharves or piers. In May, 1857, Milton Gr. Smith conveyed his interest in said premises to William Smith. In 1864, Smith built a pier at the foot of the southerly half of Stanton street, and since its erection said pier has always been used and occupied, as provided by said grant. By a series of mesne conveyances said property, in 1866, came into the possession of the plaintiff. In 1864 and 1865 said property was assessed and taxed to William Smith as owner or occupant, and was described in the assessment roll as “ one-half of pier between Stanton and Rivington streets.” From 1866 to 1872, inclusive, said property was assessed and taxed to William Smith as owner or occupant, and was described as “ southerly half of pier foot of Stanton street.”</p> <p>The defendant demurred to the complaint as not containing facts sufficient to constitute a cause of action, and because the court had no jurisdiction of the subject-matter. The demurrer was overruled, and leave given to answer.</p> <p>Ko answer having been served judgment was rendered for the plaintiff, declaring the taxes void, and enjoining the collection thereof, by sale or otherwise.</p> <p>There was no property here subject to taxation. (1 R. S. [5th ed.], 808, § 1; 2 Dillon on Munic. Corp. [2d ed.], § 614; Cooley on Taxation, 130.) The plaintiff’s estate was an incorporeal hereditament and was not liable to taxation. (Boreal v. Mayor, etc., 2 Sandf., 752; 2 Kent’s Com., 458, 459; De Witt v. Hays, 2 Cal., 468.) Plaintiffs’.interest was affected by a tax on the land. (2 Washb. on R. P., 248; Gerard’s Titles, § 1, chap. 2; Laws 1871, chap. 381, §§ 1, 4; Warner v. Van Alstyne, 3 Paige, 513.) Though actually void the tax and proceedings relating thereto are valid on their face and create an apparently valid lien on plaintiff’s property and a cloud upon his title. (People v. Cassidy, 46 N. Y., 46; Heywood v. Buffalo, 14 id., 534; Ward v. Dewey, 15 id., 519, 529.) A court of equity will interfere either to remove or prevent a cloud upon title. (Scott v. Onderdonk, 14 N. Y., 9; 9 id., 534; Allen v. Buffalo, 39 id., 386; Crook v. Andrews, 40 id., 547.) Equity will relieve against an illegal tax as doing an irreparable injury when the enforcement of it might destroy a valuable franchise. (Cooley on Taxation, 539.)</p>

(Reported below, 2 Hun, 591.) This action was brought by plaintiff as assignee of the claim of the Butler Colliery Company, for 2,700 tons of coal, alleged in the complaint to have been sold by said company to defendant at an agreed price, and for moneys advanced, less $411.07 commissions.

(Reported below, 6 Hun, 166.) This action was brought to determine the rights of the respective parties to certain real estate in the city of Hew York, used for church purposes, and to certain… Held: managed, and used in the same manner as was thus arranged in regard to the said chapel. Thereupon, in conformity with such arrangement and trust, the defendant appropriated the said chapel to the use of a congregation which had become stated worshippers therein.

Appeals from orders of the General Term of the Supreme Court in the first judicial department affirming orders of Special Term fixing the fees and compensation of the sheriff of Erie county upon attachments issued to him in the actions above entitled.

(Reported below, 7 Hun, 655.) This action was brought to restrain defendant from constructing and operating its road over and upon a portion of Gravesend avenue, in the county of Kings, to which plaintifE claimed title. The facts appear sufficiently in the opinion. Chapter 531, Laws of 1873, vested in defendant the fee of the land appropriated for the avenue.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department affirming a judgment in favor of plaintiffs, entered upon a verdict.</p> <p>The case upon a former appeal is reported in 51 Rew York, 211.</p> <p>The complaint in this action alleged the sale by plaintiffs to defendants of sixty-five cases containing about 33,132 yards of “ sky-blue kerseys ” at one dollar and twenty-five cents per yard, to be paid for by defendants’ promissory notes at four months; that plaintiffs delivered the goods in pursuance of the contract of sale and demanded the notes, but defendants refused to give the notes and sent the goods back; that plaintiffs refused to receive them except as defendants’ goods, and to secure the claim for the purchase-money, and gave notice that unless they were paid for they would sell them upon defendants’ account, holding defendants for any balance; that plaintiffs sold the kerseys on account of their claim for the purchase-price and applied the proceeds, which left a deficiency, for which they asked judgment.</p> <p>The contract of sale was verbal. The facts appearing in reference thereto are sufficiently set forth in the opinion.</p> <p>At the close of the evidence defendants’ counsel moved for a nonsuit upon the ground, among others, that the contract for the sale of the goods was void under the statute of frauds, and the evidence failed to show a delivery or acceptance. The motion was denied and defendants’ counsel duly excepted.</p> <p>The mere receipt of goods by a supposed vendee will not take a sale out of the statute of frauds. (Stone v. Browning, 51 N. Y., 211.)</p> <p>The sale of the goods by plaintiffs for account of defendants was properly made at private sale, and the delay in selling was a benefit to defendants. (Sands v. Taylor, 5 J. R., 393, 404; Crooks v. Moore, 1 Sandf., 297; Conway v. Bush, 4 Barb., 564; Bogart v. Regan, 1 E. D. S., 590.) There was an acceptance of the goods binding upon defendants. (Morton v. Tibbetts, 15 Q. B., 428; Cusack v. Robinson, 1 B. & S., 299; Currie v. Anderson, 2 E. & E., 592; Rodgers v. Phillips, 40 N. Y., 532; Benj. on Sales, 105-195.) The letter of defendants repudiating the contract was sufficient to take the case out of the statute of frauds. (Gibson v. Holland, L. R., 1 C. P., 1; Buxton v. Rust, L. R., 7 Ex., 1279; Allen v. Bennett, 3 Taunt., 169; Tufts v. Plymouth G. M. Co., 14 Al., 407; Argus Co. v. Albany, 55 N. Y., 495; Townsend v. Hargraves, 118 Mass., 3, 356.)</p>

This action was brought by plaintiff, late sheriff of the county of Kings, upon a bond given by defendant Middleton, for the faithful discharge of his duties as plaintiff’s deputy sheriff. Plaintiff claimed to recover damages alleged to have been sustained by him by reason of the neglect of Middleton to arrest one Rogers upon a body execution. It appeared that in an action by one Gibson against said Rogers an order of arrest was issued and Rogers was held to bail.

This was an appeal from a judgment of General Term, affirming, with some modifications, a decree of the surrogate of Otsego county, settling… Held: no error; that it was the duty of the executor, at once after the death of the testator, to have separated the interest of the deceased from the partnership business, and not having so done, it was proper to charge him with the interest for the use; that, while compounding interest is in some sense a penalty for negligence or…

<p>Decided on the facts in the case.</p>