Volume 69 — New York Reports

(Reported below, 6 Hun, 534.)-This was an action of ejectment to recover possession of certain premises situate in the city of Auburn, known as the “ Dennis Place.” Both parties claimed title through Louisa Easterly, deceased, who died seized of the premises in April, 1866, leaving a last will and testament and a codicil; the material portions of. the will are as follows: “ The house and lot where I now live, with my husband and children, consisting of about three acres of…

This action was brought to restrain defendant from diverting water from plaintiff's cheese factory, audio recover damages for such diversion. In April, 1869, defendant conveyed to plaintiff certain premises by warranty deed.

<p>Where the essentials of a contract made in a foreign state under and in pursuance of its laws are not hostile to the law and policy of this State, the contract may be relied upon and availed of in the courts of this State.</p> <p>Defendant S., a resident of Cuba, was a special partner of a firm organized and doing business in said island. All of the provisions of the Spanish law in reference to the formation and the carrying on of the business of limited partnerships were complied with so far as under said law to limit the liability of the special partner to the amount of funds which he had contributed in accordance with the partnership agreement. The firm became indebted to plaintiffs for advances. S. had no personal connection with the transactions. In an action to recover such indebtedness, held, that the contract of partnership was to be construed and governed by the laws of Spain; that the liability of S., and the extent of the authority of the acting partners to bind him were to be determined thereby; and that therefore S. was entitled to set up his limited liability as a special partner as a defense.</p> <p>The power of one partner to act as agent for and' to bind his co-partners discussed, and the authorities upon the subject collated.</p> <p>Also the authorities upon the subject of the law of domicile and when it controls in the courts of another State, collated.</p>

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department affirming a decree of the surrogate of the county of New York upon the final accounting of the executor of the will of Thomas Dunham, deceased. (Reported below, 7 Hun, 202.)</p> <p>The portion of the decree appealed from was that providing for the distribution of the testator’s residuary estate.</p> <p>The will was executed February 27th, 1868; the testator died March 1st, 1868. The testator devised and bequeathed to his wife, the homestead and all the personal property therein, also a legacy of $100,000. He gave to a sister a legacy of $10,000, and to three half sisters $5,000 each. The sixth and seventh clauses of his will were as follows:</p> <p>“ Sixth. All the rest, residue and remainder of my estate, real and personal, present and hereafter to be acquired, and wherever situated, I give, devise and bequeath, and do desire and will that the same shall be divided among my heirs and next of kin in the same manner as it would be by the laws of the State of New York had I died intestate.</p> <p>“ Seventh. It is my desire, and I do hereby order and direct that my executor and executrix hereinafter named, or such of them as shall act for the time, shall not be compelled to sell and dispose of any part of my interest in ships and vessels, nor be compelled to convert any part of my property into money, nor pay off any part of the legacy or legacies hereinbefore bequeathed until, in their judgment and discretion, the best interests of my estate shall be promoted by so doing; it being my desire, and I do hereby authorize my said executor and executrix to use, control and manage and employ my ships and vessels in a way which shall, in their judgment and discretion, best serve the interests of my estate, and that shall not be held responsible for any losses which may occur in the management of said property, except such as shall happen from their gross negligence or wilful misfeasance; my said beloved wife to draw from the earnings of such ships and vessels the share or portion which her interests under this my last will and testament shall bear to the whole net earnings.”</p> <p>The testator left his widow and the sisters named in the will, him surviving; he left no children. The only real estate owned by him was that devised to his widow. His personal estate was of the value of about $250,000, consisting mostly of ships and vessels.</p> <p>The surrogate decided that the widow was entitled, under the residuary clause of the will, to participate in the distribution of the residuary estate the same as if the testator died intestate, i. e., that she was entitled to a moiety and to $2,000 in addition.</p> <p>Sarah H. Luce, one of the half-sisters, alone appealed to this court.</p> <p>A widow is not next of tin of her deceased husband. (2 Bl. Com., 202; Drake v. Gilmore, 52 N. Y., 389.) The statute of distribution does not change the common law rule as to who are of kin to the deceased. (Withy v. Mangles, 10 Cl. & F., 215; Slosson v. Lynch, 43 Barb., 147; Davies v. Bailey, 1 Ves., 84; Garrick v. Ld. Camden, 14 id., 372; Cholmondeley v. Ld. Ashburn, 6 Beav., 86; Hamlin v. Osgood, 5 N. Y. Surr. R. [1 Redf.], 409, 417; Jones v. Oliver, 3 Ired. Eq. [N. C.], 362; 2 Wins, on Ex’rs, 1005 [6th Am. ed. of 1859], 1119; 7th Eng. ed. [2 Redf.], 75-7.) The word “heirs” as used by the testator did not include the widow. (De Beauvoir v. De Beauvoir, 3 H. of L. Cas., 524; In re Porter’s Trust, 4 K. & J., 188; In re Steven’s Trust, L. R. [15 Eq.], 110; Cushman v. Horton, 59 N. Y., 149, 151-2; Mounsey v. Blaniere, 4 Russ., 384; 2 Wins, on Exrs., 1109 [7th Lond. ed.]; 2 Jarm. on Wills, Ch., 29, 30.)</p> <p>As the residuary estate, consists of personal property, the word “heirs” includes the widow. (Doody v. Higgins, 2 K. &. J., 729; Gittings v. McDermott, 2 My. & K., 69; Low v. Smith, 2 Jur. N. S., 344; In re Stevens’ Trust, L. R. [Eq. Cas.], 15, 110; In re Porter’s Trust, 4 K. & J., 188; In re Gamboa’s Trust, id., 756; In re Newton’s Trust, 6 L. R. [4 Eq.], 171; Jacobs v. Jacobs, 16 Beav., 557; Lowndes v. Stone, 4 Ves. Jr., 649; Holloway v. Holloway, 5 id., 394; Vaux v. Anderson, 1 J. & W., 388; Evans v. Salt, 6 Beav., 266; Mounsey v. Blaniere, 4 Russ., 384; Croom v. Herring, 4 Hawk. [N. C.], 393; Ricks v. Williams,, 1 Dev. [Eq.] 10; Eddings v. Long, .10 Ala., 203; Mace v. Cushman, 45 Me., 260; Houghton v. Kendall, 7 Al., 72; Sweet v. Dalton, 109 Mass., 589; Morton v. Barrett, 22 Me., 257, 264; Chews’ Appeal, 37 Penn., 23; Cushman v. Norton, 1 Hun, 602; Wright v. Trustees, etc., 1 Hoff. Ch., 212.) If the word “ heirs ” had been omitted, the words “next of kin” would include the widow, if the general scope of the will indicated the intention of the testator to include her. (Withey v. Mangles, 4 Beav., 358; 10 Cl. & F., 215; Elmsley v. Young, 2 Myl. & K., 780; Slosson v. Lynch, 43 Barb., 147; Garrick v. Camden, 14 Ves., 372-7.)</p>

This action was brought to recover damages for the alleged breach of two contracts between the parties.

This action was brought to recover damages for an alleged breach of warranty made by defendants who were seedsmen in the city of New York, on sale to plaintiff who was a market gardener, of a quantity of cabbage seed.

This action was brought to have a bill of sale, executed by plaintiff to defendant, declared a mortgage, and for an accounting, redemption, etc. Prior to August 28, 1872, the parties hereto were co-partners .in business. On that day plaintiff executed to defendant a bill of sale of all his rights and interests in the property, effects and good will of the business of the firm, which was stated to be thereby dissolved.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order denying a motion for a new trial, and dismissing plaintiff’s complaint.</p> <p>The nature of the action and the facts are set forth sufficiently in the opinion.</p> <p>As there was no evidence of the authority of the mayor to execute the deed of March 1, 1836, or of the existence or regularity of the proceedings preliminary to its execution required by statute, it was void. (Doughty v. Hope, 3 Den., 599; 1 N. Y., 79; Sharp v. Spier, 4 Hill, 76-86; Sharp v. Johnson, id., 92; Newell v. Wheeler, 48 N. Y., 486.) The statute did not make this deed presumptive evidence of the regularity of the proceedings. (Laws 1828, chap. 164; Striker v. Kelly, 2 Den., 323; 4 Hill, 76.) The statute, under which the sale in 1861 was made (Laws 1844, chap. 86, § 29), was unconstitutional. (Menges v. City of Albany, 56 N. Y., 374; House v. City of Rochester, 15 Barb., 519, 520; Clark v. City of Utica, 18 id., 451; Clark v. Miller, 42 id., 265; Hanlon v. Suprs. Westchester Co., 57 id., 394; Newell v. Wheeler, 48 N. Y., 486, 490.) The description of the property in the notice of sale was not sufficient. (Newell v. Wheeler, 48 N. Y., 486-489; Chapman v. City of B’klyn, 40 id., 372; In re Comrs. Cent. Park, 35 How. Pr., 277; Ronkendorff v. Taylor, 4 Pet., 262, 263; Sharp v. Spier, 4 Hill, 89.) The evidence of prior possession was alone sufficient to sustain this action. (Hopkins v. Mason, 42 How. Pr., 116; 1 Phil. Ev., 646.) Possession under an assessment lease, however long, will not give title. (Bedell v. Shaw, 59 N. Y., 46; Bensel v. Gray, 62 id., 632; Hoyt v. Dillon, 18 Barb., 644; Howard v. Howard, 17 id., 663, 665, 666; Watson v. N. Y. C. R. R. Co., 6 Abb. Pr. [N. S.], 97.) John Hilton having entered into possession as tenant, adverse possession could not begin to run until twenty years after the termination of the tenancy. (Code, § 86; 2 Ed. Stat. at L., 306, § 86.) Being agent of the estate of James Hilton, Sr., he could not acquire title thereto as against his principal by purchasing at an assessment sale, (Ten Eyck, v. Craig, 62 N. Y., 419, 420.) Adverse possession must be shown affirmatively. (Tyler on Ejectment, 874, 875; Howard v. Howard, 17 Barb., 666; Jackson v. Johnson, 5 Cow., 74, 84, 85; Code, §§ 81, 86; 2 Ed. Stat. at L., 305, § 81; Humbert v. Trinity Ch., 24 Wend., 597; Jackson v. Waters, 12 J. R., 368.) No adverse possession runs against a reversioner. (Clarke v. Hughes, 13 Barb., 151, 152; 3 Washb. on R. P. [3d ed.], 132-133; Jackson v. Schoonmaker, 4 J. R., 402; Fogal v. Pirre, 10 Bosw., 11.) The assessment lease will not be presumed to be regular. (Waldron v. Tuttle, 3 N. H., 344; Cooley on Taxation, 330, 332; Townsend v. Estate of Downer, 32 Vt., 191; Bedell v. Shaw, 59 N. Y., 46; Blackwell on Tax Titles [3d ed.], 522, 523; Tolman v. Emerson, 4 Pick., 162; Greenl. Ev., 15 id., § 20; Code, § 86; 2 Ed. Stat. at L., 306, § 96; Worthing v. Webster, 45 Me., 276, 277; Bur bans v. Van Zandt, 7 N. Y., 527; Van Horne v. Fonda, 5 J. Ch., 406; Hobridge v. Gillespie, 2 id., 30.) The question of presumption was one of fact. (Perepscut Propers, v. Ransom, 14 Mass., 147; Blossom v. Cannon, id., 177, 178; Coleman v. Anderson, 10 id., 109; Cooley on Taxation, 331.) The tenants were properly joined with the landlord in this action. (Pearce v. Colden, 8 Barb., 522; Pearce v. Ferris, 10 N. Y., 280; Abeel v. Van Gelder, 36 id., 514.)</p> <p>The declaration of sale in the assessment deed of 1836 was evidence of title without proof of any preliminary proceedings. (Laws 1828, chap. 164, § 5.) This deed would furnish presumptive evidence of the truth of its recitals without the aid of any statutory provision. (1 Greenl. Ev., § 20, 23, note 2 ; Garwood v. Dennis, 4 Bin., 314.) It was too late after an undisturbed possession of thirty years, to question the authority of an agent to execute the deed. (1 Greenl. Ev. § 21; Stockbridge v. West Stockbridge, 14 Mass., 257, 261 ; Trustees, etc., v. Trustees, etc., 2 Hawks, 233.) The assessment lease was not in hostility to the true title, but in accordance with it. (Bedell v. Shaw, 59 N. Y., 46 ; Sands v. Hughes, 53 id., 287; Jackson v. Rowland, 6 Wend., 666, 670 ; Taylor’s Landlord and Tenant, § 89.) If Mrs. Bender had purchased with notice, her claim would not be invalidated by it, as her assignor was a purchaser with notice. (Fort v. Burch, 5 Den., 187 ; Varick v. Briggs, 6 Paige, 323 ; Story’s Eq., § 409.) This action could not be maintained against defendants iointly, as they were not iointly in possession. (3 R. S. [5th ed.] 594, § § 21, 22.)</p>

C. Cruger. (Reported below, 7 Hun, 60.) This action was brought upon a bond executed by defendants as sureties for one Edward R. Olcott, since deceased, conditioned for the faithful performance of his duties as guardian of plaintiffs. The complaint alleged that said defendant Eliza was, at the time of the execution of the bond, a married woman, having a separate estate, and it was asked that the amount of the recovery be adjudged a charge upon her separate estate.

<p>In assessing bank stock under the provisions of the act authorizing the taxation of stockholders of banks (chap. 761, Laws of 1866), it is the duty of the assessor to deduct, from the actual value of each share, a sum bearing the same proportion thereto as the assessed value of the real estate of the bank bears to the actual value of all the capital stock; the words “ whole amount of the capital stock,” as used in said act, has reference to its value, not to the nominal amount of capital.</p>

Said company is a foreign corporation having a general office in the city of New York, in charge of one Bird, its agent. He placed in the hands of an attorney for collection, a promissory note made by William R. Shepherd; said attorney brought suit thereon in the name of the company ; obtained judgment, and instituted supplementary proceedings, in which the plaintiff herein was appointed receiver.

<p>A blow given with the handle of a pitchfork, without pushing or thrusting with the tines, is not an assault with a “sharp, dangerous weapon,” within the meaning of the act of 1854 (chap. 74, Laws of 1854), providing for the punishment of assaults with dangerous weapons.</p> <p>Upon the trial of an indictment under said act, evidence on the part of the defendant, that the assault was committed in defending his property, or that of others entrusted to his care, against a trespasser seeking to take forcible possession, is competent, both upon the question as to whether to the extent that force may lawfully be used in the defence of one’s goods the assault was justified, and also upon the question whether the assault was “with intent to do bodily harm.” If the intention was merely to defend the possession, although unjustifiable means may have been resorted to, the oifence is not within the statute.</p> <p>The presumption that a party intends the ordinary and probable consequences of his acts is not conclusive, but may be rebutted by competent evidence.</p>

It appeared, upon the trial, that the plaintiff in error had formerly been indicted for larceny; that one Ferdinand Vorst was on that trial called as a witness on his behalf; Vorst was indicted for perjury thereon, and was tried and a verdict of guilty given against him. The indictment here was for suborning the said Vorst on'that trial, who was now called as a witness for people.

of decision below, 6 Hun, 477). This action was upon a judgment in favor of plaintiff against defendants rendered in 1861. The facts appear sufficiently in the opinion. The satisfaction piece executed by Emmet Blair was unauthorized and invalid. (3 R. S. [5th ed.], 640, § 22; Lewis v. Woodruff, 15 How. Pr., 539; Beers v. Hendrickson, 6 Rob., 53, 73; Simonton v. Barrell, 21 Wend., 362.) Part payment of the judgment did not amount to a satisfaction and discharge of it.

The nature of the action and the facts are sufficiently set forth in the opinion. It was error to receive in evidence the memorandum of the agreement to lease. (Jackson v. Delacroix, 2 Wend., 433; Jackson v. Moncrief, 5 id., 26.) As plaintiff failed to sustain the allegations in his complaint, the motion to dismiss the complaint should have been granted.

<p>In an action brought under the statute “ providing redress for words imputing unchastity to a female ” (chap. 219, Laws of 1871), plaintiff is not confined to proof of the charge set forth in the complaint; but evidence is competent of words spoken by defendant at any time before the commencement of the action, repeating substantially the same charge.</p> <p>Where a witness called for plaintiff in such an action to prove the slanderous words in answer to a question upon cross-examination, as to whether he did not swear, upon another occasion, that he had never heard anybody speak disrespectfully of planintiff, stated without objection what he did swear to, held, that it was competent for plaintiff’s counsel, on redirect-examination, to examine him upon that subject.</p> <p>Plaintiff, at the time of the speaking of the alleged slanderous words, was engaged as a school teacher After a witness had stated on the trial that an appeal had been taken to the State superintendent of public instruction from a decision of the school commissioner in proceedings to remove the plaintiff, her counsel asked whether the commissioner or superintendent decided to remove her; this was objected to and excluded. Said counsel then asked whether plaintiff remained teaching after such decision; this was objected to generally, and objection overruled. Held, no error; that the objection did not present or call for a decision as to the form of the question; and that the fact proved was not rendered incompetent, because inferentially it might tend to establish what the decision was.</p> <p>After the court had charged, upon request, “that the burden of proof is on the plaintiff to prove the charge alleged,” it refused to add the words, “ and over and beyond the evidence given on the part of the defendant.” Held, no error; that the refusal to charge might be justified on the ground of uncertainty as to the meaning of the request; but that the charge as made covered the whole case.</p> <p>Errors in a refusal to charge must be shown affirmatively, and can only be predicated upon a refusal to charge some specific proposition.</p> <p>Where an answer in an action of slander alleges, in justification, the truth of the words spoken, it is not error for the court to refuse to charge, as matter of law, that the answer cannot be considered by the jury to enhance the damages.</p> <p>Notwithstanding the change effected by the Code in allowing facts adduced for the purposes of justification, although insufficient for that purpose, to be used in mitigation of damages, still, where there is an entire fail- [. ure of proof to sustain the charge contained in the alleged slanderous words, and the circumstances evince that the reiteration of the slander in the answer was done maliciously, and without probable cause for believing it true, it may be considered by the jury upon the question of damages.</p> <p>It seems, however, that this rule should be confined to cases of bad faith in incorporating the justification in the pleadings.</p>

<p>In an application for a policy of fire insurance were these questions and answers. “What is your title to the property? Contract.” “How much insured in other companies ? None.” In an action upon the policy, held, that the fair interpretation of the questions and answers was that plaintiff held the property by a contract for the purchase thereof, and had himself no other insurance ; and that the fact that plaintiff’s vendor had an insurance upon his interest did not constitute a breach of warranty.</p> <p>Plaintiff signed a blank form of application, which was filled up by defendant’s agent without any knowledge or dictation from plaintiff; there were false answers and statements therein occasioned by the carelessness, mistake or inadvertence of the agent. The policy contained a clause that he who procured the insurance should be held by contract to be plaintiff’s agent; also a condition that the application must be made out by defendant’s authorized agent. Held, that there was no warranty binding upon plaintiff, and consequently no breach.</p>

The nature of. the action and the facts are set forth sufficiently in the opinion. The defendant’s failure to move to suppress the deposition taken under the commission was only a waiver of irregularities in taking it. (Brown v. Southworth, 9 Paige, 350; Hays v. Phelps, 1 Sanclf. Sup.

This action was brought to recover rent alleged to be due, under and upon a one year’s lease of certain premises in the city of New York. The only evidence presented upon the trial on the part of plaintiffs was the record of summary proceedings, instituted by plaintiffs against defendants to remove them from the premises for non-payment of rent due.

This action was brought to recover of the defendants, as alleged co-partners under the firm name of Griffith & Wundram, the amount of two promissory notes made by that firm. Defendant Abendroth alone defended, claiming that the partnership was limited, and he a special partner. It appeared in evidence that a certificate for the formation of a limited partnership was filed in the county clerk’s office, by the defendants, on the 23d day of December, 1870.

The complaint, after stating that the action was brought by plaintiff for the benefit of himself and other stockholders of a manufacturing corporation organized under the name of H. A. Gouge & Co., and after alleging the due incorporation of said company, alleged in substance that defendant as president of said company, in combination with one Eeid, an officer and director of said company, illegally and fraudulently converted to his own use all the surplus earnings of said…

This action was brought to recover damages for injuries alleged to have been sustained through the negligence of defendant. The facts, as shown by plaintiff’s evidence, were in substance these: On the 24th October, 1870, plaintiff took passage on one of defendant’s horse cars in the city of New York. The track of defendant’s road crosses the tracks of the New York Central & Hudson River Railroad Company near the Grand Central depot in said city.

(Reported below, 8 J. & S., 291.) This action was brought upon a contract made and entered into between the defendant and the Craftsman’s Life Assurance Company; both life insurance corporations organized under the laws of this State.

This action was brought to recover damages for injuries sustained by plaintiff, by falling upon one of defendant’s side walks, upon which the complaint alleged defendant had negligently allowed snow and ice to accumulate until it became unsafe.

<p>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 non-suiting plaintiff on trial, and granting a new trial. (Reported below, 8 J. & S., 368.)</p> <p>This action was brought to recover damages alleged to have been sustained by reason of the negligence of plaintiff’s servant. On April 27, 1872, plaintiff was driving along Catharine street, in the city of New York, in a buggy. He had crossed the track of defendant’s road, but before the rear part of the buggy was far enough from the track, so that a car could pass without striking it, his further progress was arrested by a blockade of trucks and other vehicles, and he was unable to move forward, and by other vehicles he was prevented from moving in any direction. A car approached on defendant’s road, the driver of which, as plaintiff testified, after waiting a moment or two, told the plaintiff to “ get off the track.” The plaintiff asked him to wait until the trucks moved, promising then to move. The driver said, “Damn you, if you don’t get off here; I am late; I will get you off some way or other.” The plaintiff said, “ You wait a moment; I guess the trucks are moving, and I may go.” The trucks started, and as the plaintiff prepared to move on, the driver started his horses, and the platform of the car struck the hind wheels of the buggy and overturned it, thus causing the injury complained of.</p> <p>Defendant’s counsel moved for a nonsuit on the ground, among others, that the car-driver’s act was not within the scope of his authority, but was an unlawful and unauthorized act, for which defendant was not responsible. J</p> <p>The complaint was properly dismissed, the act of defendant’s driver being an intentional, willful and malicious trespass, for which it could not be held liable. (Gonzales v. N. Y. & H. R. R. Co., 38 N. Y., 442 ; Reynolds v. N. Y. C. & H. R. R. Co., 58 id., 250 ; Smith v. Ætna L. Ins. Co., 49 id., 211-216 ; 1 Chit. Plead., 69 ; Wright v. Wilcox, 19 Wend., 343 ; Hibbard v. N. Y. & Erie R. R. Co., 15 N. Y., 467 ; Clark v. Met. Bank, 3 Duer, 241; Weed v. Panama R. R. Co., 17 N. Y., 365; Mali v. Lord, 39 id., 383 ; Frazer v. Truman, 43 id., 566 ; Wells v. N. Y. C. R. R., 24 id., 184 ; Isaacs v. Third avenue R. R. Co., 47 id., 122 ; Whittaker v. Eighth avenue R. R. Co., 51 id. 295 ; Thames Stbt. Co. v. Hous. R. R. Co., 24 Conn., 40 ; Barker v. H R. R. R. Co., 4 Daly, 276; Wright v. Delafield, 25 N. Y., 270; Rome Ex. Bankv. Eames, 4 Abb. Ct. App. Dec., 813; Kelsey v. Western, 2 Comst., 506 ; Ferguson v. Ferguson, id., 361; Bailey v. Rider, 10 N. Y., 370; Anonymous, 17 Abb. Pr., 53; Field v. Mayor, etc., 6 N. Y., 179 ; Hughes v. N. Y. & N. H. R. R. Co., 4 J. & S., 222; Courtney v. Baker, 5 id., 249 ; Ryan v. H. R. R. R. Co., 1 J. & S., 137 ; Poulton v. L. & S. W. R. Co., 2 L. R. (Q. B.), 534 ; Roe v. Birkenhead, etc., R. R. Co., 21 L. R. (Exch.), 9 ; Lamb v. Palk, 9 C. & P., 629 ; Lyons v. Marten, 8 Adol. & El., 512 ; Bolingbroke v. Local Bank of Swindor New Town, 9 L. R. (C. P.), 575.)</p> <p>Defendant was liable for the act of its driver, although it was willful and unlawful. (Wells v. N. Y. C. R.R. Co., 24 N. Y., 181; People v. R. R. Co., Dillon, 568 ; N. O. J. & Gt. N. R. R. Co. v. Bailey, 40 Mis., 395 ; Drew v. Sixth avenue R. R. Co., 1 Abb. Ct. App. Cas., 556 ; 26 N. Y.,49; Nichols v. Sixth avenue R. R. Co., 38 id., 131; Pesley v. Third avenue R. R. Co., 1 J. & S., 406 ; Meyer v. Second avenue R. R. Co., 8 Bosw., 305 ; E. & C. R. R. Co. v. Baum, 26 Ind., 70 ; Bukan v. N. J. R. R. Co., 3 Vroom, (N. J.), 328 ; Griswold v. Haven, 25 N. Y. 526 ; Wright v. Wilcox, 19 Wend., 343 ; Hibbbard. v. N. Y. & Erie R. R. Co., 15 N. Y., 455 ; Sanford v. Eighth avenue R. R. Co., 23 id., 313 ; Isaacs v. Third avenue R. R. Co., 47 id., 122; Jackson v. Second avenue R. R. Co., id., 274 ; Whittaker v. Eighth avenue R. R. Co., 51 id., 295 ; Hamilton v. Third avenue R. R. Co., 53 id., 25 ; Higgins v. W. Turnpike Co., 46 id., 23.)</p>

Eeeoe to the General Term of the Supreme Court in the fourth judicial department, to review judgment, reversing a judgment of the Court of Sessions of Jefferson county, entered upon a verdict, convicting defendant in error of selling strong and, spirituous liquors to be drank on the premises without having an inn-keeper’s license, in violation of the excise law (§ 14, chap. 628, Laws of 1870.) (Reported below, 9 Hun, 446.) It appeared that defendant in error had obtained a…

The order of arrest was granted upon affidavit, showing in substance, among other things, that in an action wherein plaintiff and another were plaintiffs, and one William Batty and others were defendants ; which action was, among .other ^things, for an accounting between partners ; an order of injunction was issued, and a receiver was appointed, who took possession of certain partnership property; that the order appointing the receiver, etc., was vacated on motion, upon…

<p>The word “ contiguous,” when used in a policy of fire insurance in reference to a building, means in close proximity, in actual close contact.</p> <p>A policy of fire insurance contained a clause prohibiting, unless by special agreement indorsed on the policy, “ the generating or evaporating within the building, or contiguous thereto, of any substance for a burning gas, or the use of gasoline for lighting.” Plaintiffs, after the issuing of the policy, constructed works fifty feet from the building for the manufacture of gas from gasoline. The gas was conducted to the building by pipes. In an action upon the policy, held, that the gas works were not contiguous to the building, within the meaning of said clause ; nor could it be considered that the use of gas made from gasoline was in violation of it, in the absence of evidence that gas and gasoline were substantially the same, or that gasoline may not be burned in some other manner than as gas manufactured from it; and that, therefore, the facts shown did not work a forfeiture of the policy.</p>

This action was brought to recover damages for injuries , alleged to have been sustained through defendant’s negligence. The facts sufficiently appear in the opinion. The motion for a non-suit should have been granted on the ground of plaintiff’s contributory negligence. (Phillips v. R. & S. R. R. Co., 49 N. Y., 177; Burrows v. Brie Ry. Co., 63 id., 556 ; Morrison v. Erie Ry. Co., 56 id., 302 ; Taber v. D., L. & W. R. R. Co., 4 Hun, 765 ; Gunion v. Har.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department affirming a judgment in favor of defendant, entered upon the report of a referee.</p> <p>The nature of the action and the facts are set forth sufficiently in the opinion.</p> <p>Plaintiff was neither party nor privy to the assignment made in 1866, and cannot be bound by it. (Griswold v. Waddington, 15 J. R., 57 ; Story on Part., 280, 302 ; Vanness v. Fisher, 5 Lans., 236.)</p>

Appeal ' from judgment of the General Term of the Court of Common Pleas in and for the city and county of New York, affirming a judgment in favor of plaintiff, entered upon a verdict, and affirming an order denying a motion for a new trial. This action was brought to recover damages for an alleged breach of a contract for the sale of a lot of land situate in the city of New York.

Appeal by the Delaware and Hudson Canal Company from order of the Special Term of the -Supreme Court in the third judicial department affirming an order of Special Term confirming the report of commissioners appointed to appraise the compensation to be paid John P. Adams for an interest in certain real estate sought to be acquired by proceedings in invitum for the purposes of said corporation.

This action was brought by plaintiffs, who compose the firm of Devlin and Co., to restrain defendant from using said firm name. Plaintiffs were engaged in the clothing business. Defendant was engaged in the same business without a partner.

Appeal, by Walter Brady, the petitioner, from order of General Term of the Supreme Court, in the first judicial department, reversing an order granted in proceedings, under article 1, title 1, chap. 5, part 2, of the Revised Statutes, which order directed the discharge of the petitioner from imprisonment on execution; and denying the application for such discharge. (Reported below, 8 Hun, 437.) The facts appear sufficiently in the opinion.

<p>Appeal from judgment of the General Term of the court of Common Pleas for the city and county of New York, affirming a judgment in favor of plaintiff, entered upon the report of a referee.</p> <p>The nature of the action and the facts sufficiently appear in the opinion.</p> <p>The referee erred in awarding damages instead of directing a sale of the stock. (Cary v. Williams, 1 Duer, 667; Azel v. Betz, 2 E. D. Smith, 188; Sadler v. Lee, 6 Beav., 324; Watts v. Girdlestone, id., 188; Duffy v. Duncan, 32 Barb., 587; Hart v. Ten Eyck, 2 J. Ch., 62, 117; Bailey v. Ryder, 10 N. Y., 363, 370; Saltus v. Genin, 3 Bosw., 250; Ward v. Davis, 2 Sandf., 502, 510; Bradley v. Aldrich, 40 N. Y., 504; Wright v. Delafield, 25 id., 266; DeGraw v. Elmore, 50 id., 1; Walter v. Bennett, 16 id., 250; Matthew v. Cady, 16 id., 651; Moore v. McKibbin, 33 Barb., 246; Ransom v. Wetmore, 39 id., 104.) Plaintiff and defendant were not partners in a joint adventure, but plaintiff was only an agent employed by defendant. (Lamb v. Grover, 47 Barb., 317; Lewis v. Greider, 51 N. Y., 231; Merwin v. Playford, 3 Robt., 702; Strong v. Place, 4 id., 385; 51 N. Y., 627; Cummings v. Mills, 1 Daly, 520; Muzzy v. Whitney, 10 J. R., 226; Chase v. Barrett, 4 Paige, 148; Rishton v. Grissell, L. R. (5 Eq.), 326; Shaw v. Galt, 16 Irish C. L., 350; Hesketh v. Blanchard, 4 East, 144; Waugh v. Carver, 2 H. Bl., 235; Hazard v. Hazard, 1 Story C. C., 375; Jordan v. Wilkins, 3 Wash. C. C., 110; Lintner v. Milleber, 47 Ill., 178; Hoile v. York, 27 Wisc., 209; Crawford v. Austin, 34 Md., 49; Elsworth v. Pomeroy, 26 Ind., 163; Chisholm v. Cowles, 42 Ala., 179; Mason v. Potter, 26 Vt., 724; Kellogg v. Griswold, 12 id., 294; Lowry v. Brooks, 2 McCord, 421.) Plaintiff and defendant not being partners, and plaintiff not having advanced any money or put anything at risk, had no title to any of the stock purchased. (Horton v. Morgan,. 19 N. Y., 170; Stewart v. Drake, 46 id., 449.) There being no partnership, plaintiff could not sue for an accounting, and defendant was entitled to a trial by jury. (Smith v. Leveaux, 2 DeG. J. and S., 1; Moxon v. Bright, L. R. (4 Ch.), 292; Hazard v. Hazard, 1 Story C. C., 371.) If there was a partnership, plaintiff having abandoned his interest when the speculation was unprofitable, is barred from claiming any of the profits. (Lindley on Part. (3d Ed.), 945; Senhouse v. Christian, 19 Beav., 356, note; Prendergast v. Turton, 1 Y. & C., 98; 13 L. J. (Ch.), 268; Clegg v. Edmondson, 8 DeG. M. & G., 787; Reilly v. Walsh, 11 Irish Equity, 22; Jekyl v. Gilbert, McN. Cases, 29.) An agent, trustee or partner need not make a sale avowedly for his principal or partner in order to bind him. (Case v. Abeel, 1 Paige, 393; Lewis v. Greider, 51 N. Y., 231; 49 Barb., 606.) Where one party puts in evidence entries in the books of a concern, the adverse party may put in evidence, without further proof, other entries in the same or even other books of the same concern, and essential to complete the account. (Pendleton v. Weed, 17 N. Y., 72; Larue v. Rowland, 7 Barb., 107; Dewey v. Hotchkiss, 30 N. Y., 497.) Upon questions of intention, where it is not unequivocally expressed, a witness can be interrogated and made to declare what was his own intention, although unexpressed. (Pope v. Hart, 35 Barb., 630; Whedden v. Wilson, 44 Me., 19; Seymour v. Wilson, 14 N. Y., 567; Forbes v. Waller, 25 id., 430; Matthews v. Poultney, 33 Barb., 127.)</p> <p>Plaintiff and defendant were co-partners in respect of the dealings contemplated. (Burckle v. Eckhart, 1 Den., 337; 3 Comst., 132; Lewis v. Greider, 51 N. Y., 231; Leggett v. Hyde, 58 id., 272; Dob v. Halsey, 16 J. R., 33; Aunin’s Manual of Civil Law, 258, 259; 1 Domat Civil Law, 346, Par. 750; Parsons on Part., 442, 102; Collyer on Part., § 18; Ex parte Langdale, 18 Ves., 301; Man. Brass Co. v. Sears, 45 N. Y., 797; Whitney v. Ludington, 17 Wis., 140; Niehoff v. Dudley, 40 Ill., 406.) The shares represented by the account “ M ” were the property of the partnership, and defendant was liable for appropriating them. (Story’s Eq., §§ 792, 793, 1211, 1212, 187; Steel v. Babcock, 1 Hill, 537; Middleton v. Middleton, 1 J. & W., 96; Waltham's Case, 11 Ves., 638; 14 id., 290; Perry on Trusts, § 169; Kerr on Fraud and Mistake, 273; Scotty. REogers, 31 N. Y., 676; Blot v. Boiceau, 3 id., 79.)</p>

This action was brought by plaintiff as a common carrier to recover freight and charges on a cargo of oats alleged to have been transported for and delivered to defendants. Plaintiff received the oats at Buffalo, giving the following bill of lading therefor : “ Buffalo, October §th, 1869.

<p>A justice of the peace, in an action regularly brought before him to recover a penalty for less than §200, has jurisdiction to pass upon every question involved in the action, including the validity of the law imposing the penalty; and his judgment, so long as it remains unreversed, is conclusive between the parties upon every question necessarily embraced therein.</p> <p>Process regularly issued upon such a judgment, authorizing the imprisonment of the defendant therein, is a protection in an action for false imprisonment to the officer executing it and to the parties at whose instance it was issued and served.</p>

The facts sufficiently appear in the opinion of Earl, J., pn motion for a rehearing, The act of 1869 (chap. 520) was passed with reference to the existing general laws, and as the claim was not filed within the year the award was void. (Rodgers v. Bradshaw, 20 J. R., 735, 744.) The award was void because no notice was given to the commissioners of the second claim.

These are cross appeals from judgment of the General Term of the Supreme Court, in the first judicial department, modifying and affirming as modified a judgment in favor of plaintiff, entered upon a decision of the court at Special Term.

This action was brought to restrain defendant from suffering an opening to remain in front of a stable upon certain premises belonging to him, in the city of New York, which was alleged to be contrary to covenants and conditions contained in a deed of said premises from plaintiff, his grantor.

This action was upon a policy of life insurance issued by defendant upon the life of Thomas H. Dilleber, husband of plaintiff. The facts are sufficiently stated in the opinion. The court on trial directed a verdict for defendant, to which plaintiff’s counsel duly excepted. Exceptions were ordered to be heard at first instance at General Term. The court erred in admitting the testimony of the physicians of the insured. (Ellington v. Mut. L. Ins.

(Reported below, 6 Hun, 381.) This action was for the alleged conversion of a quantity of hemlock bark.

This action was brought to enjoin defendants from infringing plaintiffs’ trade mark, and for damages. The complaint alleged in substance that they were the manufacturers and importers of brandy, which they put up for sale “ in. quart and pint bottles,” upon each of which was placed the trade mark in question.

This action ivas brought for an accounting, and to compel plaintiff to satisfy a mortgage, and to re-assign to plaintiff a State certificate of lands in Syracuse, which plaintiff claimed to have been executed and transferred by him to defendant as security for indorsements and advances, and also to assign to plaintiff a lease of a salt block situate upon the lands described in the State certificate, and to assign certain stock, held by plaintiff, of the Salt Company of…

(Reported below, 8 Hun,78.) This was an action to foreclose a mortgage. The mortgage was executed in August, 1873, by defend- • ant Evans, who then owned the mortgaged premises. He conveyed the same to one Mitchell, and through various mesne conveyances the title came to one Sanborn. In none of these conveyances did the grantee assume to pay the mortgage.

<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 a verdict.</p> <p>This action was brought upon an alleged contract of life insurance.</p> <p>Plaintiff’s evidence tended to show the following facts : On September 8, 1868, the Hahneman Life Insurance Company issued to plaintiff a policy of insurance upon the life of her husband, Richard B. Shaw, by the terms of which the annual premiums were to be paid September 8th of each year. That company sold out to defendant, who assumed its risks. On November 26, 1872, defendant, in consideration of the delivery to it by plaintiff of the promissory note of her husband for $54.70, payable forty days after date, executed and delivered to plaintiff a writing, of the body of which the following is á copy:</p> <p>sg “ Received November 26th, 1872, of Richard B. Shaw, 3 Policy No. 2705, issued by tiie Hahneman Life Insurance A Company, of Cleveland, Ohio, and now in force, hearing § date September 8th, 1868, for the amount of $2000, 3 with an annual premium payable on the eighth day of ^ September in each year, in exchange for which the A Republic Life Insurance Company will issue its policy .-3 of the same amount and deliver the same within a C3 3, reasonable time, and in the meantime keep the insurance (5 good.”</p> <p>Defendant on December 1st, 1872, sent a policy to its agent, but the same was never delivered. By said policy the annual premiums were to be paid September 15th of each year. The note was not paid at maturity. The agent of defendant called upon Shaw in May thereafter, and requested payment; he stated he was unable to pay it then. Plaintiff promised to pay it in a few days. At the time specified she called upon the agents and offered to pay, and demanded the policy, but they refused to receive it, and repudiated the contract. Mr. Shaw died September 2 2d, 1873. Defendant’s counsel moved for a non-suit upon the grounds among others that the note was not taken in payment, but as collateral security, and not having been paid, the policy was void ; that the non-payment of the premium which became due in 1873, of itself forfeited the policy. The motion was denied. Defendant’s agent testified in substance that in the negotiation for the exchange it was agreed that the note was to be given as security for the payment of the premium, and that the policy would be forwarded to the agent, who would hold the policy and note until maturity.</p> <p>The court charged among other things in substance that it was not competent to show by parol that there was a condition to the agreement, by which the note and policies were to be held until the premiums were paid. That “ the note being the note of Mr. Shaw, the law jiresumes prima facie that it was taken in payment.” Defendant’s counsel duly excepted.</p> <p>Said counsel requested the court to charge that there being no evidence of payment, or offer to pay the premium which became due in September,, 1873, the plaintiff could not recover. The court refused so to charge, and said counsel duly excepted.</p> <p>Further facts are stated in the opinion.</p> <p>Plaintiff’s husband was her agent, and his words and acts and knowledge are conclusive upon her in this action. (Baker v. Un. Mut. L. Ins. Co., 43 N. Y., 287; Elwell v. Chamberlin, 31 N. Y., 611, 619; 2 Hill, 451; 100 Mass., 100.) As Marble was the agent of defendant for the special purpose of procuring an exchange of the policy, he had no power to revive the Hahneman policy or to receive the note of ¡November 26th in payment of the premium due September 8th, 1872. (Harrison v. City F. Ins. Co., 9 Al., 231; Phœnix Ins. Co. v. Lawrence, 4 Met. [Ky.], 9; Tate v. Citizens’ Ins. Co., 13 Gray, 79; May on Ins., 140, § 138.) To render a waiver binding, it must be supported by a valuable consideration. (Trask v. Mut. Ins. Co., 5 Casey, 451; Ripley v. Ætna Ins. Co., 30 N. Y., 136; Pitkin v. Noyes, 48 N. H., 330; Kidder v. Blake, 45 id., 530.) The giving of the note, at most, gave Shaw the privilege of reviving the policy within forty days, and not having done so, he is foreclosed of that privilege. (Bliss on L. Ins. [2d ed.j, § 195, pp. 311-316; id., §§ 200, 267.; May on Ins., 412, 424-432; - Tarlton v. Stamforth, 5 T. R., 695; 1 B. & P., 470, 1 Burnett F. Ins. Cas., 37, [King’s Bench, 1794] ; Want v. Blunt, 12 East, 183; 2 Big. L. & A., 201; Simpson v. Ac. D. Ins. Co., 2 C. B. [N. S.], 257; 2 Big. L. & A., 497; Bliss on L. Ins., § 195;-Pritchard v. Mer. etc., L. Ins. Co., 3 C. B. [N. S.], 622; 2 Big. L. & A., 544; Bliss on L. Ins., § 196; Ally v. Feolin, 7 M. & W., 151; Phœnix etc., Co. v. Sheridan. 8 H. of L. Cas. ; 2 Big. L. & A., 583; Mut. B. L. Ins. Co. v. Reese, 8 Geo., 534; Roberts v. N. E. Mut. etc., Co., 1 Disney, 355; 1 Big. L. & A., 634; Blanchard v. At. N. C. F. Co., 33 N. H., 6; Donald v. P. & A. L. Ins. Co., 4 Rich., 321; 4 Big. L. & F. Ins. L. R., 468; Howell v. Knick. etc., Co., 44 N. Y., 276; Roehner v. Knick. etc., Co., 63 id., 165; 4 Bailey L. & F. Ins. Co. R., 468.) The court below erred in holding that the presumption of law prima facie was that the note of Shaw was received in payment of the premium due. (Baker v. Un. Mut. L. Ins. Co., 43 N. Y., 287; Putnam v. Lewis, 8 J. R., 389; Cole v. Sackett, 1 Hill, 516; 38 Barb., 385; E. R. Bk. v. Butterworth, 45 id., 476; 47 id., 29; 53 id., 191; 37 N. Y., 314.) The premium on defendant's policy was due the 8th day of September in each year. (1 Phil. Ins., § 15; Audubon v. Excel. F. Ins. Co., 27 N. Y., 216; Tifft v. Phœnix Mut. L. Ins. Co., 6 Lans., 198; Bap. Ch. v. Brooklyn F. Ins. Co., 28 N. Y., 153.) Plaintiff’s case was at an end by the non-payment of the premium September 15th, 1873. (Fried v. Royal Ins. Co., 47 Barb., 127; Whitaker v. F. Un. Ins. Co., 29 id., 312; Phila. L. Ins. Co. v. Am. Ins. Co., 23 Penn., 65.) The recital in the agreement of November 26th, 1872, that the Hahneman policy was “ now in force,” was a warranty. (Callaghan v. At. Ins. Co., 1 Edw. Ch., 64.)</p> <p>The evidence showed that defendant had conferred authority upon its agents, De Yol and Marble, to bind it by the agreement as to the policy in suit beyond its power to repudiate. (Carroll v. Charter Oak F. Ins. Co., 40 Barb., 292; Vaile v. Ger. F. Ins Co., 26. Iowa, 9; N. Berwick Co. v. N. E. F. & M. Ins. Co., 52 Me., 336; Post v. Ætna F. Ins. Co., 43 Barb., 351; Markey v. Mut. Ben. L. Ins. Co., 103 Mass., 78; Un. Mut. L. Ins. Co. v. Willson, 13 Wal., 222; City of Davenport v. Peoria M. & F. Ins. Co., 17 Iowa, 276; Conover v. Mut. Ins. Co., 3 Den., 254; 1 Comst., 290; Lightbody v. N. Am. Ins. Co., 25 Wend., 18; Jervis v. Hoyt, 2 Hun, 487, 496, note 1; Boehen v. W’msburgh City F. Ins. Co., 35 N. Y., 131.) Where it is to be inferred from the facts of the case that a credit is intended, the policy will be binding, though the premium has not been paid. Sheldon v. At. F. & M. Ins. Co., 26 N. Y., 460; Woody. Pough. Ins. Co., 32 id., 619; Carroll v. Charter Oak Ins. Co., 40 Barb., 292.) The general agent of an insurance company has power to bind the company by making such a waiver as the one in this case. (Post v. Ætna Ins. Co., 43 Barb., 351; Owen v. F. J. S. Ins. Co., 57 id., 518; Standard Oil Co. v. Tri. Ins. Co., 3 Hun, 591; Sherman v. Nia. Ins. Co., 46 N. Y., 526; Bridenbecker v. Lowell, 32 Barb., 9; Trustees, etc., v. B’klyn F. Ins. Co., 19 N. Y. 305, 103 Mass., 78; Murphy v. So. Ins. Co., 1 Alb. L. J., 231; Flanders on Ins., 104; Hotchkiss v. Repb. F. Ins. Co., 5 Hun, 90; O'Reilly v. Ger. Mut. L. Ins. Co., 3 T. & C., 487; Goit v. Nat. Pro. Ins. Co., 25 Barb., 189; Shaft v. Phœnix Mut. L. Ins. Co., 8 Hun, 632; Bodine v. Exchange F. Ins. Co., 51 N. Y., 122; Bliss on L. Ins., 487, § 298; Miller v. B'klyn L. Ins. Co., 12 Wal., 288; 20 id., 560.) The principal cannot affirm one part of the transaction and disavow the rest. (Smith v. Cadagan, 2 T. R., 189; Wilson v. Poulter, 2 Sh., 839; Havil v. Peck, 7 East, 164; Small v. Atwood, 6 C. L. & F., 232; Wilson v. Tammon, 6 M. & Gr., 236; Smethurst v. Taylor, 12 M. & W., 554; Doe v. Goldwin, 2 Q. B., 146; Baker v. Un. Mut. L. Ins. Co., 43 N. Y., 289; Eilis v. Albany City F. Ins. Co, 50 id., 406.) The note was received as payment of the premium due Nov. 26, 1872, and the failure to meet it did not avoid the policy. Youngs v. Shetton, 34 N. Y., 258; Toel v. Murray, 18 id., 167; Baker v. Un. L. Ins. Co., 37 How., 126; Buckbee v. U. S. Ins. An. & T. Co., 18 Barb., 541; Bliss on L. Ins., 288-295; 101 Mass., 558.) The actual issuing or delivery of a policy was not necessary. Rockwell v. Hart. F. Ins. Co., 4 Abb., 179; Rhodes v. R. P. Ins. Co., 5 Lans,, 71; Pratt v. H. R. R. R. Co., 21 N. Y., 305; Fried v. Royal Ins. Co., 47 Barb., 127; 50 N. Y., 243; 43 Barb., 311.) Defendant is estopped from claiming now that the evidence did not warrant the verdict. (Schoff v. Boner, 1 J. & S., 199; Frecking v. Rolland, id., 499; Dutcher v. Porter, 63 Barb., 15; O'Neill v. James, 43 N. Y., 84.)</p>

(Reported below, 8 J. & S., 118.) This was an action of ejectment to recover possession of certain premises situate in the city of New York. The facts appear sufficiently in the opinion. An assignment by an. insolvent in trust for his creditors is good without any valuable consideration being expressed. ( Cunningham v. Freeborn, 11 Wend., 240; Burrill on Assignments [2d ed.], chap. 15, p. 239; 2 Scott, 582.) A deed in invitum is binding on the grantor. (Bouv.

This was an action upon a policy of insurance issued by defendant upon the life of Albert Cahen, plaintiff’s husband. A copy of the policy was annexed to and made part of the complaint. The defence was a breach of warranty. Upon the trial, it appeared that on May 31, 1872, Albert Cahen made in writing jointly with the plaintiff, an application for insurance, to the Empire Mutual Life Insurance Company.

This action was brought for an alleged breach of a contract of employment. Plaintiff alleged that defendants, who were co-partners, employed him as a clerk for a year, but discharged him without cause before the end of the year. He was the only witness to support his claim. Defendant, John Johnston, was called as a witness, and gave evidence for the defense, which directly conflicted with that of plaintiff.

' This was an action to recover the balance alleged to be due upon the deposit account of plaintiff with defendant, a savings bank. The only question ivas as to an alleged payment by defendant of an item of $2,850. At the time plaintiff opened his account, he signed his name in a signature book.

(Reported below, 7 Hun, 324.) ■ This action was brought to recover the balance of an alleged indebtedness due plaintiffs from the firm of Hoffman & Weinberg, composed of the defendants, Jacob Hoffman and Julius Weinberg, and which, as the complaint alleged, the firm of Weinberg Brothers, composed of the other defendants, had assumed and agreed to pay.

(Reported below, 7 Hun, 44.) Plaintiff and defendant, the Kings County Manufacturing Company, were both manufacturing corporations, organized under the general act (chap. 40, Laws of 1848.) The nature of the action and the facts are sufficiently stated in the opinion. The mortgage held by plaintiff was void, because the requirements of the statute were not complied with.

This action was upon guaranties of payment executed by defendants, indorsed upon two bonds, of $1,000 each, executed by defendant Smith.

Appeal, from order of general term affirming judgment recovered on the report of a referee (For full statement of foots see case reported in 54 How., page 29).

<p>Appeal from judgment of the General Term of the Superior Court of the city of New York, affirming a judgment in favor of plaintiff entered upon a verdict. (Reported below, 8 J. & S., 483.)</p> <p>This action was brought to recover damages for the alleged breach of a contract of purchase and sale.</p> <p>The facts appear sufficiently in the opinion.</p> <p>A warranty can be predicated as to the quality of the glass upon the contract proved. (Day v. Pool, 52 N. Y., 416; Dounce v. Dow, 57 id., 16; Gurney v. At. & G. W. R. Co., 58 id., 358.) The inquiry as to price was limited to that at the place of delivery. (Sedg. on Dam. [4th ed.], 317; Story on Sales [4th ed.], § 436; Gregory v. McDowell, 8 Wend., 435; Wemple v. Stewart, 22 Barb., 154; Deifendorff v. Gage, 7 id., 21; Latlin v. Davis, Lal. sup. to H. & D., 12; Dunstan v. McAndrew, 44 N. Y., 72; McNaughten v. Cassidy, 4 McL., 530.)</p> <p>As no objection was made to the glass for a long time, and no offer made to return it, defendants are precluded from alleging that what they received was inferior. (Reed v. Randall, 29 N. Y., 358; Pike v. Nash, 1 Keyes, 355; Hargous v. Stone, 5 N. Y., 73; Sprague v. Blake, 20 Wend., 61.) The words in the contract “to be of approved standard quality,” did not constitute a warranty. (Prideaux v. Burnett, 1 C. B. [N. S.], 613; Chanter v. Hopkins, 4 M. & W., 399; Hasting v. Lovering, 2 Pick., 214; Reed v. Randall, 29 N. Y., 358; Day v. Pool, 52 id., 416; Muller v. Eno, 14 id., 597; Rust v. Eckler, 41 id., 488; Fiedler v. Starkin, 1 H. Bl., 17; Waring v. Mason, 18 Wend., 425; Kellogg v. Denslow, 14 Conn., 411; Thornton v. Wayne, 12 Wheat., 183.) The difference between the price at New York and the contract price, was the measure of damages. (Dana v. Feidler, 12 N. Y., 48; Sedg. on Dam., 316; Converse v. Prettyman, 2 Minn., 229; Dey v. Dox, 9 Wend., 129; Davis v. Shield, 24 id., 322; Chit. on Con. [11th ed.,], 621.</p>

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, affirming au order of Special Term denying a motion to vacate certain assessments for local improvements in the city of New York, but correcting one of the assessments by reducing it.</p> <p>The petitioner sought to vacate four assessments upon its property for local improvements; number one, made in 1875; number two, made in 1873; number three, made in 1865; and number four, made in 1864. It proved that the value of said premises, as valued by the ward assessors, in the years 1874, 1873, 1864 and 1863, was $0,</p> <p>The counsel to the corporation introduced the following proof, to which petitioner duly objected and excepted.</p> <p>Extract from the records of taxes and assessments, for the year 1858, showing the last assessed valuation of the lots of petitioners: to wit for the year 1858.</p> <p>It thereby appeared that th'e several assessments numbered 1, 3 and 4, did not exceed one-half the value of the lots as valued by the ward assessors, in the year 1858. It also appeared that assessment number two did exceed one-half of such valuation.</p> <p>Petitioners requested the judge, by whom the proceeding was heard to order that the several assessments be. vacated, which request was refused and petitioners excepted. The judge decided that assessment, number two, be reduced to one-half of the value of the lots, as valued by the ward assessors, in 1858.</p> <p>Petitioners requested the judge to order that upon the assessment as reduced, interest should run only from the date of the order, reducing the same, which request was refused, and petitioners duly excepted.</p> <p>An order was entered accordingly.</p> <p>The assessments are void by reason of the prohibition in chapter 326, Laws of 1840. (In re Second Ave. M. E. Church, Ct. Apps., not reported.)</p>

, to be paid by the receiver of the defendant the amount of an alleged deposit. (Reported below, 10 Hun, 148.) Hermann Uhl, as Receiver of the German Up-town Savings Bank, applied by petition to the court below, for an order directing William A. Butler, Receiver of defendant, the Manufacturéis’ ancl Builders’ Bank, to pay him $28,887.42, the balance of an alleged deposit made by the Savings Bank to the Manufacturers' and Builders’ Bank.

The facts appear sufficiently in the opinion. Chapter 623, Laws of 1870, and the acts amendatory thereof, are unconstitutional, and all the proceedings under them, including the appointment of the commissioners of appraisal and their acts, are void.

Appeal by defendant Worrall from a judgment of the General Term of the Supreme Court, in the fourth judicial department, affirming a judgment in favor of plaintiffs entered upon the report of a referee. The nature of the action and the facts are set forth sufficiently in the opinion. The onus probandi was upon plaintiffs to show themselves bona fide purchasers.

(Mem. of decision below, 8 Hun, 249.) This action was brought against defendan as a common carrier, for a failure to deliver goods pursuant to a bill of lading. In February, 1873, the firm of Ritchie, Gregg, Gillespie & Co., merchants of Montreal, applied by letter to the plaintiff, a banking institution of the same city, for a credit of ten thousand pounds sterling, in favor of their agents, Chas. Thorel & Co., at Yokohama.

This action was brought to recover the value of certain United States bonds, which, as the complaint alleged, defendant agreed to exchange for registered bonds, but which agreement it failed to perform, and refused to deliver up the bonds on demand.

<p>An agent cannot bind his principal to the receipt of money due from himself by a mere acknowledgment signed by himself as agent that he has received it; he cannot act for himself and for his principal also in the same transaction.</p> <p>Defendant issued a joint policy upon the lives of plaintiff and her husband; the latter was clerk in the office of a general agent of defendant, and with defendant’s knowledge and approval transacted most of the office business. In an action upon the policy the defence was that a premium due prior to the death of plaintiff’s husband was not paid. The only evidence to show payment was a receipt for the premium, signed by defendant’s secretary, and countersigned by the deceased on behalf of the general agent. The receipt, with others, was delivered to the agent for collection; held, that the deceased occupied the same legal relation to defendant, in respect to business properly belonging to his duties, as did the general agent; but that the receipt alone, while it mig-ht have been prima facie evidence of payment in favor of third persons, was insufficient to establish the fact of payment in favor of the deceased himself; that plaintiff could not claim any greater benefit from the acts of her husband than he could, had she died and he brought the action.</p> <p>Also held, that the fact that prior payments were made and receipted by the deceased in the same manner which were recognized by defendant, did not materially strengthen the force to be given to the receipt alone; and that if the proof could be regarded in any sense pñirm fade, the general agent and the officers of defendant having testified that the premium was not. in fact paid, a non suit was proper.</p>

This action was brought to recover for the board of, and for necessaries, medicines, etc., alleged to have been furnished defendant’s wife. ¡ The referee found in substance that defendant married the plaintiff’s daughter, on the 18th day of December, 1864, and that on the 15th day of April, 1869, the said marriage was dissolved by judgment, in an action brought by the wife against defendant for that purpose.

(Reported below 7 Hun., 601.) This action was brought by plaintiffs as creditors of the Shenandoah Mining Company ,a corporation organized under the general manufacturing act (chap. 40, Laws of 1848), against defendants as trustees of said corporation, to recover the debt due from the corporation because of alleged failure to file and publish the annual report for the year 1874. The facts sufficiently appear in the opinion.

(Reported, 6 Hun, 543.) This action was commenced by John Johnson, John Chadwick and David Sherman, against John Fonner and wife, and heirs of Jesse F. Locke, deceased, to compel them to convey to the plaintiff, John Johnson, twelve acres of land in the town of Wheatland, in the county of Niagara, which land, it was claimed by the plaintiffs, Jesse F. Locke had sold by parol to said Johnson in his life-time, and had received the purchase price thereof, but had executed and…

Charges were preferred against the relator in writing, under the provisions of section 14 of chapter 863, Laws of 1873, which confers power upon the board of police and excise of the city of Brooklyn to remove, on conviction, any member of the force for any legal .offence, neglect of duty, violation of rules or incapacity. The charges were incompetence; neglect of duty; an offence against the laws of this State, and violation of the rules of the department.

This action was brought against defendants as sureties upon an undertaking hereinafter set forth. The referee found the following facts: On or about June 27, 1870, defendants executed the following instrument: “SUPREME COURT. The Rochester Water Works Company, ag’st James Jones, Henry Jones and Charles Harrison. .

This action was brought by plaintiff as public administrator in the city of Hew York, and as administrator with the will annexed of Charles Breusing, deceased, against defendant as one of the sureties upon a bond alleged to have been given upon the appointment of Charles T. Baldwin, as collector or special administrator of the estate of said deceased.

a judgment in favor of plaintiff, entered upon the report of a referee. • ■ This action was brought for an alleged breach of a contract of indemnity executed by defendants. ' The referee found in substance the following facts: In 1852 the People of the State, through the state engineer, sold to defendants certain premises in the city of Syracuse, and said state engineer executed and delivered to defendants a certificate therefor, which recited, among other things, that…

This action was upon a policy of insurance, issued by defendant upon the life of plaintiff’s husband Henry Z. Hayner, for her benefit.

This was an appeal from a judgment of the General Term of the Court of Common Pleas for the city and county of New York, modifying the judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term, and as modified affirming the same. This action was brought to have a bond and mortgage on lands belonging to plaintiff set aside ánd cancelled.

Appeals from judgments of the General Term of the Supreme Court in the first judicial department, affirming judgments in favor of plaintiff, entered upon decisions of the court on trial without a jury. (Reported below, 10 Hun, 124.) These actions were brought to recover rent reserved under and by written leases from the respective plaintiffs to the corporation of the city of New York, of certain premises in said city, each lease being for the term of five years..

This was an action of trespass for entering upon plaintiff’s premises and unlawfully taking and carrying away her stock of goods. The goods were taken under and by virtue of several attachments in favor of defendants and others, which attachments were thereafter set aside and vacated as irregularly issued. The further facts sufficiently appear in the opinion. The court erred in allowing plaintiff to give evidence of the retail prices at which she sold her goods.

, 135th street in said city. The facts sufficiently appear in the opinion. The assessment must be vacated because there has never been any preliminary valuation of the lots, and because it exceeds half their value. (Laws 1840, chap. 326, § 7, p. 272.) The burden of proving that these facts are not true, rested upon the city.

<p>The provision of the Code (§ 303), repealing former restrictions, and declaring that the measure of compensation for the services of an attorney shall be left to the agreement between him and his client, has no application to a contract in relation to services already rendered, but has reference only to prospective services.</p> <p>As to whether said provision qualifies in any manner the general principle requiring an attorney, seeking to avail himself of a contract made with his client, to establish affirmatively that it was made by the latter with full knowledge of all the material circumstances known to the former, and was in every respect free from fraud on his part, or misconception upon the part of the client, and that a reasonable use was made by the attorney of the confidence reposed in him, qucere.</p> <p>The provision of the Code (§ 330) authorizing the appellate court on appeal from a judgment to reverse, affirm or modify the judgment does not authorize the General Term where it has decided that a judgment in favor of plaintiff in an action upon a contract for services, or upon a quantum, meruit, is erroneous, to determine upon the examination of conflicting evidence what sum plaintiff ought to recover, and render judgment therefm ; it should in such cases award a new trial.</p> <p>It seems that when in an action upon a contract a recovery has been had upon distinct and separate items, and error either of fact or law has been committed in respect to one or more of them, the General Term may, if no other error exists, instead of reversing the judgment absolutely, reverse it only as to the erroneous items, and affirm it as to the residue; provided the plaintiff consents to forego his claim to recover them.</p> <p>The authorities holding that on appeal from an order made on motion to set aside a verdict for excessive damages, in an action of tort for injuries to the person, the General Term has power to make an order reversing the judgment and granting a new trial, unless the plaintiff consent to reduce the damages to a specified sum, and in that case affirming it for that amount, distinguished.</p>

(Reported below, 3 Hun, 195.) This action was brought against defendant as president of the Albany and Canal line of tow-boats, a joint stock association engaged in towing canal boats between Albany and New York, to recover damages for the loss of a cargo of corn, upon which plaintiff had an insurance, which loss was alleged to have been occasioned by the negligence of defendant’s employees.

The facts appear sufficiently in the opinion. The questions passed upon by the General Term are reviewable in this court. (Mason v. Lord, 40 N. Y., 484; Bradley v. Aldrich, id., 508.)

Appeajl from judgment of the General Term of the Supreme Court in the second judicial department affirming a judgment in favor of plaintiff, entered upon the report of a referee. This action was brought to recover two items alleged to be due plaintiff on account.

<p>The appeal in the action first above entitled was from a judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment in favor of plaintiffs, entered upon an order overruling a demurrer to plaintiffs’ complaint.</p> <p>The appeal in the action secondly above entitled was from a judgment of said General Term in favor of defendants, entered upon a case submitted under section 372 of the Code. (Reported below, 7 Hun, 499.)</p> <p>The question presented in and by both actions was as to whether Walter J. Weeks and others, commissioners of the town of Ellicott, Chautauqua county, appointed in proceedings under the act chapter 907, Laws of 1869, to issue bonds of said town in aid of the Buffalo and Jamestown Railroad Company were authorized and required to subscribe for stock of said corporation, and to deliver the bonds of the town in payment therefor.</p> <p>The petitions signed by the tax-payers of said town upon which said proceedings were based contained this clause:</p> <p>“ Your petitioners desire that the said town of Ellicott shall create and issue its bonds to the amount of two hundred thousand dollars, and invest the same or the proceeds thereof in the stock of The Buffalo and Jamestown Railroad Company, upon the conditions that the line of the railroad of said company, to be constructed from the city of Buffalo to the line of the State of Pennsylvania in said county, shall be located and constructed through the village of Jamestown, in said town of Ellicott, .before said bonds shall be delivered to said company or sold.”</p> <p>The order of the County Court appointing the commissioners recited this condition, and the commissioners were appointed for the purposes named in the petition.</p> <p>The commissioners made no formal subscription to the stock of the railroad company, but on the 14th of June, 1872, a written contract was entered into between them and the company, whereby the commissioners agreed that when the railroad company should have performed the condition aforesaid, they, as such commissioners, or their successors in office, would thereupon immediately subscribe, in the name of the said town of Ellicott, to the capital stock of said company, to the amount of $200,000, and pay for the same by delivering the bonds of said town in the same amount; and the railroad company agreed to receive said subscription and to receive said bonds in payment thereof. The agreement contained this clause :</p> <p>“ The parties of the first part, the commissioners, refer to the petition and proceedings under which they were appointed such commissioners as aforesaid, and do not undertake or agree to perform the conditions of this contract, except as they are empowered and authorized so to do by said petition and proceedings, and the statute in such case made and provided.”</p> <p>In August, 1874, the commissioners executed bonds prepared in the form prescribed by said agreement, and, at the request of the railroad company, delivered them to Robert Newland and Augustus F. Allen, taking from them a receipt which stated in substance that they were placed in their hands to be delivered to the railroad company in case it did, before January 1, 1876, construct its railroad through the village of Jamestown, in the manner specified, and upon the commissioners subscribing for the stock and receiving certificates therefor. In case the road was not so constructed, the bonds were to be returned to the commissioners.</p> <p>The company did not perform the condition aforesaid until October, 1875; meantime and on the 1st of January, 1875, the amendment to article 8 of the constitution of this State, prohibiting any town from becoming, directly or indirectly, the owner of stock in any association or corporation, went = into operation. (Const., art. 8, § 11.)</p> <p>After performance, the railroad company requested the commissioners to subscribe for the stock and demanded the bonds, which was refused.</p> <p>The operation of the amendment to the State constitution, which went into effect January 1, 1875 (art. 8, § 11), was only prospective. (County of Moultrie v. Rockingham Ten Cents Savings Bank, 2 Otto, 631; 7 J. R, 477; 23 Wend., 482 ; 24 N. Y., 20; 43 id., 130; 7 Hill, 156.)</p> <p>The facts stated in the tax-payers’ petition did not give jurisdiction to the county judge. (Laws of 1869, chap. 907, § 1; Laws 1871, chap. 925, § 1; People ex rel. Rogers v. Spencer, 55 N. Y., 1; Stephens v. Fairchilds, 3 Com., 41.) The commissioners had no right to deliver or sell the bonds until the road had been located and constructed through Jamestown. (2 Pars, on Con., 6, § 2, 11; § 3, pp. 10, 12.) . There was no question of vested rights in this case. (Fisher v. Peck, 6 Cranch, 87-133; Dart. College v. Woodward, 4 Wheat., 518; Watson v. Mercer, 8 Pet., 88-110; Balt. R. R. Co. v. Nesbit, 10 How., 410; Satterly v. Matthewson, 2 Pet., 380, 413.) The contract under the act of 1870 (chap. 507) was put an end to by the repeal of that act. (Sedg. on Stat., 129-136; Butler v. Palmer, 1 Hill, 329; Key v. Goodwin, 4 M. & P., 341, 351.) The legislature has power to repeal charters and annul corporations formed under general laws in pursuance of the constitution of 1846. (McLean v. Pennington,. 1 Paige, 102; White v. Syr. and I. R. R. Co., 14 Barb., 559; North. R. R. Co. v. Miller, 10 id., 277; Snydays v. Moore, 8 id., 358; Troy and Rut. R. R. Co. v. Kerr., 17 id., 603; Wales v. Stilson, 2 Mass., 146.) The bonds in question, if issued, will not be valid in the hands of innocent holders. (Thomas v. City of Richmond, 12 Wal., 356; Pendleton Co. v. Amy, 13 id., 297-304; Grand Chute v. Winnegar, 15 id., 371; The Floyd Acceptances, 7 id., 667-676; Mech. Bk. v. N. Y. and N. H. R. R. Co., 3 Kerr, 599.) Plaintiffs, as tax-payers of the town of Ellicott, could maintain this action. (Ayers v. Lawrence, 59 N. Y., 192.)</p>

(Reported below, 7 Hun, 279.) This action was upon two promissory notes, or which defendants Penfield and Stone were makers, which were made payable to defendant Truax, and by him indorsed and transferred to plaintiff.

(Mem. of decision below, 8 Hun, 97.) This action was brought to set aside a sale of certain premises in the city of Brooklyn for non-payment of a tax, to have the tax declared illegal and void,, to restrain the city corporation from giving a conveyance to defendant Mahoney, the purchaser on said sale, and to restrain said purchaser from giving notice of sale, and from claiming or accepting a conveyance.

(Reported below, 8 J. & S., 463.) The nature of the action and the facts are set forth sufficiently in the opinion. Defendant continued to be a trustee of the corporation until another was elected in his place. (Laws 1860, chap. 270, p. 472, § 2.) It was not necessary for plaintiffs to show that Leland was specially authorized by the trustees to purchase the presses. (Hascall v. L. Assn. of Am., Ct. App. [not rep.]; Howland v. Meyer, 6 Conn., 290; Conover v. Mut. Ins.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order denying a motion for a new trial, and directing judgment on a verdict. (Reported below, 7 Hun, 133.)</p> <p>This action was brought against defendants as owners of the ship Great Republic to recover the value of a trunk and its contents, shipped on board of said vessel at San Francisco to be transported to New York.</p> <p>The ship had been chartered for the voyage from San Francisco to New York by the firm of Moore & Co., of San Francisco; to be victualled, manned and sailed at the expense of the owners, in whose employ were the captain, officers and men.</p> <p>The trunk was .delivered to the freight clerk of Moore & Co., who gave a receipt therefor; no bill of lading was applied for or received by plaintiff. The only marks upon the trunk were the initials, “ H. E. R.” It was not entered upon the ship's manifest. No advice or instructions appear to have been given to any one connected with the ship as to its ownership, or to whom it was consigned. The ship arrived safely at New York, and the trunk, with the other cargo, was delivered to the consignees of the charterers. Plaintiff delivered his receipt to Wells, Fargo & Co., in New Y ork. A clerk of their’s presented it to the consignees, who referred him to their delivery clerk. The latter, not finding it entered on the ship's manifest, took the marks and agreed to notify the person calling for it when it came out of the ship. It was subsequently taken out and delivered to the consignees of the cargo. The court directed a verdict for plaintiff. Exceptions were ordered to be heard at first instance at General Term. Further facts appear in the opinion.</p> <p>The charter was the , only agreement between plaintiff and defendants, and the rights of the latter would be determined by that alone. (Cook v. N. Y. F. Dry Dock Co., 1 Hilt., 443; Winterbottom v. Wright, 10 M. & W., 109; Aug. on Car., § 422; Walter v. Bennett, 16 N. Y., 250; Ranson v. Wetmore, 39 Barb., 106.) Ho contract between plaintiff and defendant can be implied from the fact that - the charterers put the trunk on the ship. (Calkins v. Falk, 39 Barb., 620; Campbell v. Perkins, 8 N. Y., 432.) Defendants were not common carriers. (Gage v. Tirrell, 9 Al., 299; Lamb v. Parkman, Sprague, 343; 1 Pars, on Ship., 294, 246; Tuckerman v. Brown, 17 Barb., 191; 2 Kent., 598.) Defendants having performed their whole duty as to the trunk, were not liable. (Fenner v. B. & S. L. R. R. Co., 44 N. Y., 510; Northrop v. Syr. & N. Y. R. R. Co., 2 Tr. App., 183; Petton v. R. & S. R. R. Co., 54 N. Y., 214, 217; Gould v. Chapin, 10 Barb., 618; Stephenson v. Hart, 4 Bing., 476; 1 Pars. Mar. Law, 154, note 5; Cope v. Cordova, 1 Rawle, 203; The Tangier, 11 L. R. [H. S.], 12; Aug. on Car., §§ 313, 295; Fisk v. Newton, 1 Den., 45; Mayell v. Potter, 2 J. Cas., 371; Williams v. Nichols, 13 Wend., 58; Whitbeck v. Holland, 45 N. Y., 13; Zinn v. N J. Stbt. Co., 49 id., 445; Chickering v. Fowler, 4 Pick., 371; Pickett v. Downer, 4 Vt., 21.) Ho liability on the part of defendants could be based on the alleged agreement of the delivery clerk to notify Welch when the trunk came out. (Cook v. N. Y. C. R. R. Co., 3 Keyes, 476; 11 L. R. [N. S.], 13; Berger v. Miller, 4 Wash., 280; G. I. Ins. Co. v. Ruggles, 12 Wheat., 408; N. Y. L. Ins. & T. Co. v. Beebe, 7 N. Y., 364; Prisbane v. Adams, 3 id., 129; Montimer v. Cornwell, Hoffm., 351.)</p> <p>Defendants were liable as carriers. (Mactaggart v. Henry, 3 E. D. S., 398; Camden R. R. & T. Co. v. Belknap, 21 Wend., 354; Schroeder v. H. R. R. R. Co., 5 Duer, 55; Grosvenor v. N. Y. C. R. R. Co., 39 N. Y., 34; Langworthy v. N. Y. & H. R. R. Co., 2 E. D. S., 196; Clarkson v. Edes, 4 Cow., 470; Campbell v. Henry, 8 N. Y., 430; 1 H. Bl., 359; Brown v. The Water Witch, 19 How. Pr., 241; Act of Congress, Mch. 3, 1851, § 53; Parish v. Crawford, 2 Str. 1251; Marcardier v. Ches. Ins. Co., 8 Cranch, 49; McIntyre v. Bowne, 1 J. R., 229.) Defendants were bound, by the receipt of the freight clerk, when the trunk was delivered. (Goddard v. Mallory, 52 Barb., 87; 5 Duer, 55; Rawls v. Seymour, 3 Keyes, 577.) They were bound to deliver the trunk on its arrival, or to notify plaintiff. De Mott v. Laraway, 14 Wend., 225; Gibson v. Culver, 17 id., 305; Price v. Powell, 3 N. Y., 322; Fenner v. B & S. L. R. R. Co., 44 id., 505; Owners, etc., v. Ayers, 5 Am. L. Reg. [N. S.], 692; Tangier, 11 L. R. [N. S.], 12; Fisk v. Newton, 1 Den., 45; McAndrew v. Whitlock, 52 N. Y., 46; Bk. of N. S. v. Davis, 2 Hill, 451; McCotter v. Hooper, 8 N. Y., 497.)</p>

Appeal by Mary Nelson from order of the General Term of the Supreme Court in the third judicial department, affirming, upon certiorari, an order of a justice of said court in proceedings by habeas corpus, discharging the respondent from imprisonment in the county jail of Rensselaer county, where he was in custody under a commitment issued by the surrogate of said county for an alleged contempt. The facts appear sufficiently in the opinion.

(Reported below, 8 J. & 8., 24.) This action is brought against defendant as sheriff of the city and county of New York, for a failure to return three executions in favor of plaintiff.

<p>Where a son, during infancy, conveys his real estate to his father, receiving and expending, or wasting the consideration therefor before his arrival at full age, and has no other property with which to replace it, he may disaffirm his deed after he arrives of age, without restoring or offering to restore the consideration.</p> <p>Mere acquiescence by the son, without any affirmative act, for three years after his arrival at full age, is not a ratification of the conveyance.</p> <p>A re-entry by the son for the purpose of disaffirming the deed, with notice of such intent, is. sufficient to avoid it, and an action of trespass cannot be maintained by the father because of such re-entry.</p>

The complaint in this action alleged in substance that plaintiff was the manager of an operatic company which had been in the habit of giving operatic and dramatic entertainments in the city of New York.

This action was brought under section 449 of the Code to determine the title to certain real estate situate in the city of New York.

<p>A retiring partner is liable for services rendered subsequent to the dissolution of the partnership by an agent in its employ at that time, and who, thereafter, without notice of the dissolution, continues under the same apparent employment.</p> <p>Publication of notice of the dissolution of a partnership in a newspaper, at the place where the business is carried on, is not sufficient to relieve a retiring partner from liability for subsequent transactions in the firm name with one having dealings with the firm prior to the dissolution; in such case notice must be brought home to the dealer, or it must appear that facts came to his knowledge sufficient to advise him, or to give him reason to believe "that a dissolution has taken place.</p> <p>The mailing of a notice of dissolution, properly directed to the party sought to be charged with such notice, is not sufficient alone to relieve the retiring partner; it raises a presumption of notice, but one which may be repelled by proof that the notice was not in fact received.</p> <p>One H. had been in the employ of the firm of D. B. & Co., of Toledo, prior to its dissolution; he resided at Detroit. Notice of the dissolution was published in the Toledo papers, and a copy mailed to plaintiff, addressed to him at Detroit. The business was thereafter continued in the same firm name. In an action against the members of the original firm, upon a promissory note given in the firm name to H., for services rendered subsequent to the dissolution, H. testified, on his direct-examination, that he never received the notice; on his cross-examination, that he had no recollection of receiving or seeing it, and that if he had seen it he thought he should have remembered it. Held, that the question of notice was properly submitted to the jury, and justified a finding that none had been received.</p>

■* This action was brought to obtain specific performance of an alleged oral agreement for the sale by plaintiff'to defendant of a piece of land, the complaint alleging in substance that the land in question was contracted to be sold with various other parcels, and that plaintiff was induced to accept a deed of the other parcels, under and by means of fraudulent representations of defendant that it included the parcel in question.

This action was brought by plaintiff, as administratrix with the will annexed, of Dennis O’Keefe, deceased, to recover moneys alleged to have been collected by defendant upon a policy of insurance issued upon the life of said O’Keefe, and assigned by him to defendant as security for advances made by the latter. ■ The facts appear sufficiently in the opinion.

This action was brought to recover damages for the alleged wrongful ejection of plaintiff from one of defendants cars in which he was a passenger Plaintiff purchased a ticket on defendant’s road from Buffalo to Lockport and from Lockport to Troy. He went from Lockport to Rochester, and from there, by what is known as the “old road,” running from Rochester to Syracuse, he proceeded to Canandaigua and Auburn.

This action Avas brought to recover the amount of three promissory notes made by defendant upon a loan to her. At the time of the loan defendant Avas a married Avoman.

Appeal by Clarence Satterlee from an order of the General Term of the Supreme Court in the second judicial department, affirming an order of Special Term, requiring appellant to complete his purchase of certain real estate sold under and by virtue of a judgment in this action. The plaintiff brought his action as trustee, asking, among other things, for the sale of certain real estate held by him in trust, and the judgment directed such sale.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department reversing an order of Special Term, which quashed a return to a writ of alternative mandamus and directed that a peremptory mandamus issue, and denying the motion, with liberty to the relator to demur, or, in such form as he may be advised, to take issue with the return.</p>

This was au appeal from an order of the General Term of the Supreme Court in the second judicial department, reversing proceedings for' grading and paving Grand street, in the city of Brooklyn, and vacating an assessment therefor, which proceedings were brought up for review by certiorari.