Volume 7 — Lansing's New York Reports

The action was brought for the foreclosure of a mortgage made by John White, deceased, to the plaintiff to secure the payment of $1,000 six months after date, and bearing date November 24, 1868. The mortgage was recorded on the same day in the clerk’s office of Cortland county, in which county the mortgaged premises were situated. The action was tried at the Cortland dounty Circuit in December, 1870, without a jury.

This action was brought to set aside a deed, so far as it concerned the plaintiff, executed by herself and her husband to the defendant on the 21st day of December, 1864, of certain lands in Saratoga county, on the ground that she executed it under the influence of the threats of her husband, who died in December, 186Y. The judge, before whom the trial was had, found as a fact that plaintiff’s husband, before the deed was executed, requested her father to persuade her, to…

<p>Appeal from judgment and order denying a new trial. This was an action brought by the plaintiff to recover damages for injury alleged to have been caused by the negligence of the defendant. The cause was tried at the Montgomery County Circuit, in February, 1871, where a verdict was rendered in favor of the plaintiff for $2,500. A motion was made for a new trial on the minutes, which was denied. A bill of exceptions was made by the defendant and a judgment entered for the plaintiff on the verdict. The defendant appealed from the judgment and order denying a new trial. The facts are sufficiently stated in the opinion.</p>

On the 7th of June, 1869, the common council of the defendant passed a resolution appointing a committee of five to make the necessary arrangements for celebrating the Fourth of July, and on the 24th of June appropriated $2,500 to pay the expenses. One member of the committee failed to attend and take part in its proceedings, although all were notified of its meetings.

<p>This was an appeal from an order made at a Special Term, vacating a discontinuance of the action. The facts are stated in the opinion.</p>

<p>If a freshet floats the wood of different owners into a river where the property of one is mingled with and undistinguishable from that of the other, the owners become tenants in common.</p> <p>And if one owner gather and take possession of the whole, he is not liable for conversion, but he holds it subject to the other’s right to take his portion, and is entitled to compensation for his labor.</p> <p>So held where the plaintiff had piled his wood before the freshet on defendant’s premises.</p> <p>In trover for his wood, by the plaintiff, one of the owners, against the defendant, the other owner, who had gathered and taken possession of it, evidence of demand upon the defendant’s station agent, not shown to have authority to hind the defendant, and his refusal,—Held, inadmissible.</p> <p>So also is evidence that defendant used the wood, where it does not appear whether sufficient to satisfy the plaintiff’s claim was left.</p> <p>There being no proof of conversion, and the court having charged the jury that the plaintiff, if they found for him, was entitled to interest from the time of conversion,—Held, that it was virtually a charge that there was evidence of conversion, and error.</p>

This was an appeal from a judgment entered on the verdict of a jury. The action had been previously tried, but the judgment therein reversed by the Court of Appeals. (Vide 36 N. Y., 365.) The facts are stated in the opinion.

This was an appeal from a judgment entered on confirmation of a referee’s report. The plaintiff' in his complaint alleges that in November, 1864, William O. Brown, Jr., was the owner in fee of the lot of land in Cook county, in the State of Illinois, described in the complaint, subject to a lien by way of mortgage to one Elias Greenbourn, for the sum of $2,500.

<p>The right to enter upon the servient estate for the purpose of repairing a structure to which it is subject as an easement, attaches to the dominant estate.</p> <p>So held, where, by conveyance of a part of a tract of land, openly and visibly benefited by a ditch on the remainder, an easement in the ditch, passed to the grantee.</p> <p>It seems, however, that the burden imposed cannot be made greater than it was at the time of the conveyance.*</p> <p>Planking and erections put up on the servient estate with consent and assistance of the servient owner, to prevent escape of water from the ditch upon the dominant estate, will not, in the' absence of proof, be assumed to increase the flow of water on to the servient estate in an action to restrain the servient owner from removing them; nor are the planks and erections presumptively more injurious than the ditch at the time of the grant.</p>

This was an appeal from a judgment in favor of the plaintiff, entered upon the decision of the Special Term. Tire facts were these. The plaintiff and defendant, Cornelia D. Morse, are owners of adjoining lots in the village of Penn Yan, in the county of Yates. At some time between the years 1831 and 1835 a person then owning and in possession of the lot now owned by the defendant dug a well on the northerly side of it, and within its boundaries.

The plaintiff sued to recover a quantity of clothing belonging to herself and her husband, together with bed and table linen which she inclosed in a bag and delivered to the baggage agent of the Baltimore and Ohio Bailroad Company, at the city of Washington', to he carried from that place to Buffalo'.

This was a motion for a new trial by the plaintiffs upon a case and exceptions ordered to be heard in the first instance at the General Term. The facts are stated in the opinion.

<p>This was an appeal from a judgment entered for the plaintiff upon a referee’s report.</p> <p>The plaintiff, as executrix of the last will and testament of Manly Griswold, deceased, is the owner of a bond and mortgage, executed and delivered by defendant to one David H. Horton, on which there was due on the twentieth of March, 1871, $555.</p> <p>This action was brought to foreclose the mortgage. The only defence which presents any question considered on this appeal is the fourth, and it is in substance that Laona James died in the year 1857, leaving a last will, wherein and whereby she bequeathed to defendant and his wife all her property.</p> <p>The only property of which the testatrix was owner at her death was a claim for $1,000, due to her by Parley Griswold. Edwin Dennison was appointed executor of Laona’s will, and after her death he duly qualified and took upon himself the duties of that office. He called on Parley for the amount due to the testatrix, but Parley denied any indebtedness, and said he would defend any action that might be brought to collect the claim. He offered to pay $100 if he should be discharged from the debt." This offer was communicated to Manly, plaintiff’s testator, who told the defendant that if he would accept the $100 offered by Parley, and discharge him from the demand claimed to be due to Dennison, as executor, he would discharge the mortgage in suit. Defendant accepted the offer, gave Parley a receipt in full for the claim against him (Parley), under the will of Laona James, and defendants, Parley and Manly, executed and delivered to Dennison, as executor, a release, without seal, of all claims by them as heirs of Laona against Dennison, growing out of her estate, and agreed to indemnify him against the claim of any other person, arising out of said estate or out of his office as executor.</p> <p>Manly never gave defendant a discharge of the mortgage.</p> <p>The referee found the facts stated in the aforesaid defence, except that he finds that defendant’s receipt to Parley was never delivered, nor did Parley give one to defendant. The referee found that the agreement of Manly to discharge his mortgage, being by paroi, was void under the statute of frauds, it being in effect an agreement to answer for the debt of another.</p>

<p>An order denying a motion to dismiss the complaint on the ground that the summons does not contain the proper notice, does not, it seems, affect a substantial right, and is, therefore, not appealable to the General Term. (Per Mullin, J.)</p> <p>An action to recover a penalty given by statute is an action on contract, within the meaning of section 129 of the Code, and the summons should be in the form prescribed by subdivision 1 of that section.</p>

This was an appeal from an order overruling a demurrer to a complaint.

This was an appeal by the defendants from a judgment entered on the referee’s report, in the plaintiff’s favor.

This action was brought by Whiting, who was appointed receiver of the property of Caleb Barrett in proceedings supplementary to execution in an action brought in this court by Green Parker against Barrett, in which judgment was docketed in favor of Parker, on the 24th of April, 1867, for $293.98 damages and costs, and also to set aside a deed given by one Hall to the defendant, Lydia Barrrett.

<p>Upon a trial for larceny from the person, where the proof does not warrant a finding of the value of the property at less than $25, a refusal to instruct the jury that the offence is petit larceny unless such value shall he found less than $25 is not error.</p> <p>Mere proof of the taking of bills of certain denominations, without proof of their genuineness as hills or circulating media, is insufficient to warrant conviction of larceny.</p> <p>But it will he assumed on appeal that there was evidence of genuineness upon the trial, if the hill of exceptions does not show that it contains all the evidence given.</p> <p>The taking of property from the person less than $25 in value, and of hills of denominations exceeding in the aggregate that amount, hut not shown to he genuine having been proved; held, that a request to instinct the jury that there was no evidence of a larceny was properly refused.</p> <p>Held, further, that a conviction of grand larceny would be sustained on appeal, in the absence of a statement in the hill of exceptions that it contained all the evidence given at the trial.</p>

On the 20th of September, 1866, the parties to this action entered into copartnership to carry on grocery and butchering business in the village of Phoenix, in the county of Oswego, under the firm name of Fish, Parsons & Co. There were no written articles of copartnership, but there was an understanding between the parties that each should contribute toward the capital firm $1,000 to $1,500, and to share equally in the profits and losses of the business.

This was an appeal by Catherine A. Parker, one of the defendants, from a judgment entered upon the decision of the Special Term. The action was brought to obtain a judicial construction of the will and codicils of Roxana Childs, deceased. The will, among other bequests, contained the following, viz.: “Fifth.

This was a motion to the General Term upon a case and exceptions ordered to be heard there in the first instance. The facts as they appeared were as follows: The defendant recovered a judgment against Joseph S. Thompson, before a justice of the peace of Wayne county, a transcript of which was duly filed in the clerk’s office of that county, and an execution duly issued and returned wholly unsatisfied.

In August, 1865, James Connolly was owner of a grist-mill in the city of Rochester, which was subject to two mortgages of $10,000 each, held by one Dows. In July, 1870, Mrs. Connolly, the wife of the mortgagor, entered into a contract with Dows for the purchase of said mortgages for $15,000, to be paid as follows: $2,500 to be paid down, $5,000 on the 1st of August following, and the balanee in installments, which Mrs. C. covenanted to pay.

This was an appeal by the defendant from a judgment for the plaintiff, entered upon the verdict of a jury, at the Jefferson circuit. The facts are stated in the opinion.

This was an appeal from a judgment for the plaintiff, entered upon the decision of the court.

<p>This was an appeal by the defendant from a judgment entered against him upon the verdict of a jury, under direction of the court.</p> <p>The plaintiff sued, as assignee, to recover from the defendant, as sheriff of Kings county, a sum of money to which his assignor was entitled, upon a judgment in his favor as defendant in an action for the recovery of personal property.</p> <p>The complaint averred 'that one Hager had brought an action for possession of the property against the plaintiff’s assignor, and upon receiving the affidavit and undertaking required in such case by chap. 2, title 2, of the Code, that the defendant had taken the property from the possession of the plaintiff’s assignor and delivered to the latter a copy of the undertaking, with his (the defendant’s) approval indorsed; that the plaintiff’s assignor had at the proper time excepted to the sufficiency of the sureties and served notice of the exception upon the defendant, and that the sureties had failed to justify, and that no new sureties had been furnished; that the plaintiff’s assignor did not accept the sureties offered, and thereupon that the defendant became liable; that judgment was rendered in the action for return of the property to the plaintiff’s assignor or for the value thereof in case a return could not he had, and for costs, $312.94; that execution had been issued against Hager, the plaintiff in the action, which remained wholly unsatisfied and the above amount unpaid ; that demand had been made on the defendant therefor and payment refused. The complaint referred to the affidavits and undertaking, which were annexed, and were in usual form in such case, the undertaking being conditioned in the sum of $5,000.</p> <p>The defendant’s answer did not deny the allegation to the effect that upon failure of the justification of the sureties the defendant became liable, and it specifically admitted all the other allegations of the complaint, and set up for a further answer that the defendant had detained the property in his .hands at request of the plaintiff’s assignor, and thereafter delivered it up to him; that it was agreed between the defendant as sheriff and plaintiff’s assignor that the surrender and delivery was to be in full discharge and exoneration of the defendant as sheriff from all liability incurred by him as sheriff, by reason of the failure of the sureties to justify. Upon the trial the defendant opened the case to the jury, as holding the affirmative, and the court, upon motion of the plaintiff, directed a verdict for plaintiff upon the opening.</p>

This was a motion upon a case and exceptions for judgment on the verdict of a jury ordered to he heard in the first instance at General Term.

This was an appeal by the defendant, from a judgment in favor of the plaintiff, entered on the report of a referee. The action was brought by the plaintiff, claiming as the surviving partner of John F. Barrett, deceased, against the city of Brooklyn, to recover for work, labor and services rendered the city, under a contract made by it with Barrett, for the care and repairing of its streets.

The plaintiff Fowler and the other members of a firm in which he was partner recovered judgment against Lowenstein and the other defendants for some $800.

<p>On a contract for sale and shipment of coal for cash, to be paid on receipt of bill of lading, the defendant shipped the coal and sent the bill of lading to and requested payment of the plaintiff, who claimed an offset and offered the balance, which being refused, he offered his check for the full amount, it being after bank hours this was also refused, and next day he tendered the cash. Held, that the plaintiff was in default, and the defendant discharged from the contract.</p> <p>Otherwise, if plaintiff had asked time to obtain funds for his check, in such case he should have had a reasonable time.</p>

This was an appeal by the defendant from a judgment for the plaintiff, entered upon the decision of a judge at Special Term. The action was brought by plaintiff as indorsee to recover a balance claimed- upon a promissory note, which was set forth in the complaint as follows, viz.: “ $7,266.95.

This was an appeal from a judgment for the plaintiffs, entered on the report of a referee. The action was brought to recover broker’s commissions for finding the defendant a purchaser of his real estate.

This was an appeal from a judgment upon a verdict rendered for the defendant under direction of the court, and from an order denying a new trial. The plaintiff sued as the purchaser at sheriff’s sale of an account for moneys expended and advanced by the firm of Robinson & Ogden for the defendant.

This was an appeal by the defendant, Millie D. Powers, wife of her co-defendant, upon a case and exceptions from a judgment rendered for plaintiff upon a verdict. The action was brought to recover damages for false and fraudulent representations which had induced the plaintiff to exchange certain lands for other lands and a bond and mortgage.

This was an appeal from a judgment upon the decision of the court. The plaintiffs sued to recover a balance of an account. The defendant denied all indebtedness. The court gave judgment for the plaintiffs for the balance claimed, having found payments on the original indebtedness, in cash and by return of goods upon the amount thereof, of something over $2,000.

This was an appeal by the defendant from a judgment for the plaintiff, entered on the report of a referee. The plaintiffs sued upon a promissory note made to them in the firm name of Jacob L. Bach & Co., and their complaint also contained a count in assumpsit against the defendants as joint purchasers of goods. The defendant, Bach, made default but Meyer answered.

This was an appeal by the defendants, Edwin Mills and William M. Hurtin, an infant, from a judgment in partition, entered by order of the court at Special Terra.

This was a motion for a new trial upon a case made and exceptions ordered to be heard in the first instance at the General Term. The plaintiff claimed to recover for moneys, which it alleged were inequitably and illegally withheld from it, as the assignee of the Manufacturers’ and Merchants’ Bank of Mew York city, by the defendant.

This was an appeal from an order at Special Term, directing the plaintiff to pay alimony. Judgment in the action was rendered in the defendant’s favor in Eovember, 1871, and then entered. An appeal was taken by the plaintiff from the judgment in January, 1872, but withdrawn in the succeeding July. There was an order made in the action for alimony to the defendxnt, pendente lite, and the plaintiff paid alimony until November 4, 1871, when the judgment was entered.

This was an appeal from a judgment for the plaintiff, entered upon the report of a referee.

This was an appeal from a judgment entered on a verdict and from an order refusing a new trial.

<p>A city common council having authority to pass ordinances to preserve its harbors and water channels, and “to prevent and punish the casting and depositing therein, or the causing to be floated, drifted and deposited therein, of any substance which, in their judgment, may be liable to obstruct the same; to prevent and remove all obstructions therein and to punish the authors thereof,” may pass an' ordinance imposing penalties for depositing, &c., certain substances in a particular river, or the canals, raceways, &c., leading into it, which is, in fact, a harbor or water channel, without declaring therein that the river is such harbor or channel, and that the substances so deposited, &c., may get into or tend to obstruct the same.</p> <p>Accordingly, a complaint for depositing, &c., prohibited substances in the river named in the ordinance, stating that the river is a harbor or water channel of the city, states a cause of action.</p> <p>Assuming that the United States courts have exclusive jurisdiction of maritime torts, and that placing obstructions in navigable waters is such a tort, still the State legislature may confer upon municipalities, where navigable waters and harbors exist, police authority over the same, and the violation of a regulation adopted by the municipal authority, within the power conferred, is within the jurisdiction of the State courts.</p> <p>Held, accordingly, that this court has jurisdiction of an action for the recovery of a penalty, prescribed by such an ordinance, for its violation, and that the act of the legislature under which the ordinance was passed was valid.</p>

<p>The direction of the statute (chapter 352 of 1849, § 4), that whenever the canal board shall, upon the hearing of any appeal from the award of the canal appraisers, reverse or modify such award, they shall state in the resolution or order relating to such appeal the grounds of such reversal or modification; and how much, if any, such award is increased or diminished is not merely directory but positive and peremptory, and a compliance with it is essential to the validity of any decision of the board in such case.</p> <p>If the resolution or order is not in compliance with these provisions, it will be set aside upon certiorari.</p> <p>And this will be done, notwithstanding the decision of the board is made, by the statute, final and conclusive.</p> <p>The fact that, after the issuing of the writ, the board rescinded the resolution by which their decision was made, can have no effect upon the relator’s right to a judicial construction of the act complained of.</p> <p>Nor can the court, in a case where the decision is made by statute final and conclusive, look into the merits, or render judgment on the award.</p> <p>In such case, the power of the court is confined to the question whether the tribunal had jurisdiction to perform the act complained of, and in its performance has kept within the powers given it by law.</p>

Appeals by the defendants from judgments entered for the plaintiffs on the reports of a referee. The facts are stated in the opinion.

<p>Appeal from a judgment entered upon a decision at Special Term.</p> <p>The facts are fully stated in the opinion of Parked, J.</p>

<p>If a committee of three directors has discretionary power for the execution and delivery of a lease of the corporate property, two of the members may seal it with the corporate seal, where the third is absent, but has approved its terms and concurred with the others in directing its engrossment for execution. So held, one of the members executing being president of the corporation and custodian of its seal.</p> <p>And the signature of the two members and sealing by them is sufficient execution.</p> <p>And, it seems, the corporate seal being properly affixed, no signature was ■ necessary to the valid execution of the corporate lease.</p> <p>Where the resolution appointing the committee provided for a lease for a certain term of years, and the lease, as executed, was for an indefinite time, held, that the company afterward ratified the lease, as executed, by suffering" the lessee to act upon it to its damage, by the receipt of rent and other acts recognizing its existence.</p> <p>A contract made by a corporation in violation of the terms of its charte is ultra vires, and void as against public policy.</p> <p>Corporations may invoke the aid of the court to relieve them from theii illegal contracts in like manner as individuals.</p> <p>In general, where parties contracting illegally are in pari delicto, courts of equity will not interfere to grant relief to either. But where the agreement is against public policy, the fact that the relief is asked by a party who is partieeps criminis is not, in equity, material, because the public interest requires that relief should be given, and it is given, to the public through the party.</p> <p>Accordingly held, that a contract, e. g., a lease made by a railroad company for the purpose of extending its road beyond the terminus fixed by its charter, was ultra vires, and void as against public policy, and should be set aside by the courts on the application of one of the parties.</p> <p>But, held, the court would not relieve the parties further than the public interest required, and, therefore, that no recovery could be peimitted for the use of the property leased, previous to its being declared invalid.</p>

Appeals by plaintiff and defendant from a judgment entered on the decision of a justice, at Special Term, in favor of the plaintiff. The action was brought to compel the defendant to remove a building erected across an alleged passway, and to open the way for the benefit of the plaintiff.

Appeal by the plaintiff from a judgment upon the report of a referee in favor of plaintiff against the defendant for $459.16. The plaintiff claimed that it was entitled to judgment for a larger amount than that awarded.

The action was in the nature of a quo warranta to try the title of the defendant to the office of mayor of Albany, to which office the defendant was declared to have been elected on the second Tuesday of April, 1872. • The official canvass showed the vote in the city for mayor to have been as follows, viz.: For George H. Thacher............ ............ 6>588 “ Edmund L. Judson.......................... 6 >387 “ Thomas McCarty............................ 2 >157 The plaintiff…

The action was brought for dissolution of the defendants as a corporation. The facts are stated in the following opinion, delivered by Danforth, J., at Special Term.

<p>The following opinion was rendered by Danforth J., at Albany Special Term, in which the facts are stated.</p>

<p>Appeal from a decree of the surrogate of New York, admitting to probate the will and first codicil of Sarah Gray, deceased, and rejecting the second codicil. The facts relating to the question discussed sufficiently appear in the opinion.</p>

<p>A map prepared by defendant and produced at an auction sale of lots in Hew York city, of which he was the owner, represented a strip of land as One Hundred and Thirty-fifth street, and the auctioneer sold lots as laid out on the strip, and a boulevard shown by the map, which crossed it, stating that they were corner lots. Meld, that plaintiff, who purchased the lots at the sale, and who before bidding had seen the map, was entitled to all which he might properly have understood from the map and auctioneer’s language, viz., to a conveyance describing the lots as being bounded by One Hundred and Thirty-fifth street, and that a conveyance stating that they were bounded by “the line of a certain strip of land designated and laid out as One Hundred and Thirty-fifth street on the map or plan of the city of New York ” was not in compliance with the contract of sale.</p> <p>Held, also, that evidence offered by defendant in an action for specific performance to prove what he intended to sell was properly rejected.</p>

Tuts is an appeal from a judgment, entered on the report of a referee. The defendant, the American Coal Company, is a corporation under the laws of Maryland, having its principal office in the city of New York. On the 4th April, 1856, the company issued to Hill Gowdy a certificate (No. 134) for 100 shares of its capital stock, being of the par of $25, and the same was so entered on its books.

The action was brought to obtain an injunction restraining the defendants from building to the street line on the southeast corner of Broadway and Twenty-second street, in the city of New York. The appeal was taken by the plaintiff from that portion of the decree which denied the relief as to certain of the premises. The facts appear in the opinion.

This was an appeal by the defendants from a money judgment entered upon the report of a referee on a claim arising as follows: On the fifth day of July, 1866, the defendants, as partners, were the proprietors and publishers of a work known as The American Lloyds' Register of American and Foreign Shipping, and they entered into an agreement on that day with certain inspectors of marine insurance companies in the city of Hew York, including the plaintiff as the representative…

This action was brought to recover for breach of defendants’ agreement to give their note or draft due in sixty days on a joint purchase of 294 barrels of oil, claimed to have been sold to them by the plaintiffs on the 21st January, 1869, for the sum of $6,096.96, and to have been delivered to them on that day.

<p>Motion for judgment on a verdict taken subject to the opinion of the court at General Term. The facts are stated in the opinion.</p>

The action was brought by the plaintiff as a judgment creditor of the defendant Gilmore, to set aside a conveyance of certain real estate in the city of Hew York, made by the defendant Gilmore to the defendant Kissick on the 5th of Hovember, 1869, on the ground that the conveyance was made with intent to defraud the creditors of the defendant Gilmore.

In the year 1868, a majority of the taxable inhabitants of the town of Thompson, in Sullivan county, owning a majority of the taxable property on the assessment roll of their town, not including non-resident lands, consented in writing that the commissioners of their town could bond, on the credit of the town, the sum of $148,000, at a rate of interest not exceeding seven per cent, for a period not exceeding thirty years, and execute under their hands and seals the bonds of…

This action was brought by Nicholas Brandow, as executor of the last will of John Brandow, deceased, to recover a legacy from real estate devised to the testator’s son, Lucas E. Brandow, and at the time of its commencement owned by the defendants. The testator died the 3d day of February, 1859. By his will he appointed his two sons, Nicholas Brandow and Lucas E. Brandow, his executors. Lucas E. Brandow died on the 15th of March, 1859.

The action was brought to recover the amount due upon a promissory note made by defendants for the sum of $300. The defendant, Shearer, interposed no defence, and the defendant, Tate, defended as stated in the opinion. The cause was tried at the Delaware County Circuit, in January, 1871, before Justice Boardman and a jury.

, The action was brought on an account, before a justice of the peace, an.d the defence was payment by an order or draft given by the defendant on L. R. Fox. The order was not produced and its terms were not proved. The facts are stated in the opinion.

Appeal by defendants from a judgment in an action of foreclosure, entered upon the decision of a justice of this court, at Special Term. The facts are stated in the opinion.

The action was brought to recover the amount of an account for goods alleged to have been sold by the plaintiff to the defendant. The plaintiff was a merchant, and the account accrued between November, 1855, and November, 1863. The account was charged directly to the defendant’s son, as was claimed, by the special/direction of the defendant, and by reason of his promisW-to' pay for the goods furnished.

Appeal by the plaintiff from a judgment ordered at the circuit in Madison county, in favor of the defendant. The action was brought -in 1870, to recover a parcel of land situate in Madison county. The cause was tried at the Madison county Circuit in February, 1871, before Justice Balcom and a jury. The plaintiff read in evidence a deed from Betsy Pratt to the plaintiff, dated April 1,1841, of the premises in question.

Motion, by the plaintiff, for a new trial upon a case, and exceptions ordered to be heard in the first instance at General Term. The action was brought against the defendants to recover the amount of a judgment alleged to have been sold by the defendant, as receiver. The cause was tried, at the Albany Circuit, before the Hon. William L. Learned and a jury, in January, 1872.

This is an appeal by the defendant from a judgment of the , Schenectady County Court, affirming a judgment for the plaintiff) rendered in the court of a justice of the peace. The action was brought linger the game law (chap. 721, Laws 1871), to recover a penalty for taking fish with a net in the Mohawk river. The parts of that law which are applicable read as follows: “ § 25.

<p>This is an action to foreclose a mortgage held by the plaintiff as the assignee thereof.</p>

<p>Action to compel specific performance of a paroi agreement, and to recover an amount awarded by arbitrators.</p>

This was an action brought before a justice of the peace of the town of Stockbridge, in Madison county, to recover for damage sustained by the plaintiff by reason of the defendant’s cattle having entered upon his land and destroyed his corn and wheat, and caused other damage.

<p>It will be assumed, in favor of an administrator’s bond, whicli requires obedience to all orders “ of the county judge,” that no provision has been made (Canst., art. 6, § 15) for a separate surrogate in the county. The court will take judicial notice of the population of counties and the public officers therein.</p> <p>The administrator’s bond is not defective, because the“county judge”is named in it, in counties wliere the judge is also surrogate.</p> <p>Or, if defective, the intent being manifest, the court will relieve against it. It is sufficient if the bond conform substantially to the statute.</p> <p>In the absence of proof it will he assumed that the surrogate made the proper examination as to the manner of the intestate’s death; and this is so, although the petition does not affirmatively show that fact.</p> <p>The statute which requires the surrogate to examme*fche applicant for the letters, as to the time, &c., of death, is merely directory. (Per Miller, P. J.)</p> <p>Letters of administration being in due form and regular upon their face, confer authority upon the administrator and are not questionable in a collateral action.</p>

<p>The facts are fully stated in the opinion.</p>

<p>In 1854 the village of Lowville was duly incorporated under the general act, passed in 1847, regulating the incorporation of villages.</p> <p>By section 28 of that act (3 Stat. at Large, 794), the electors of a village, at a meeting duly called, are authorized, by resolution, to direct the trustees to raise by tax, upon said village, moneys for the following purposes, amongst others:</p> <p>7. For the necessary advances for making and repairing sidewalks, in cases where those required to make or repair them shall neglect or refuse to do so.</p> <p>8. For constructing and repairing crosswalks.</p> <p>14. For highway purposes, where such village shall be a separate road district; and no other mode shall be prescribed hy law for raising money therein for highway purposes.</p> <p>By section 29 it is declared that no tax shall be voted tc be raised at any such meeting, unless the notice for holding it shall specify the amount and object of the tax.</p> <p>By the thirtieth section the resolution adopted at the meeting must specify the amount of the tax, and the objects to which the money raised is to be applied.</p> <p>By section 34 the money raised for any specified purpose cannot be applied to another.</p> <p>By section 43 the village is declared incapable of contracting a debt, and not liable for debts contracted by any of its officers.</p> <p>By section 45 the electors, at any meeting duly called, may, by resolution, direct the trustees to cause sidewalks to be made or repaired on anyroad therein; and the resolution must specify the place where and the material with which such walk shall be made or repaired; and to render valid such a resolution the notice, by which the meeting is called, must state that such a resolution will be proposed.</p> <p>By section 46 the expense of making’ or repairing a sidewalk is a lien on the land in front of which it is laid; and the trustees are required to give the owner, if a resident of the town, notice of the time and manner in which the work is required to be done.</p> <p>By section 47, if not done in conformity to the notice, or if the owner is not a Resident, the trustees are authorised to do the work, and to issue a warrant for the collection of the expenses.</p> <p>And if the collector is unable to find property out of which to certify the tax the land itself may be leased.</p> <p>The charter of Lowville was amended in 1862 by chapter 77 of the Laws of that year. The village, together with certain highways leading thereto, were declared a separate road district; and the trustees were made commissioners of highways therein, and vested with all the powers of commissioners of highways of towns.</p> <p>This act was amended in 1866 (chapter 224 of the Laws of that year).</p> <p>Section 2 of that act directs the trustees, within twenty days after the annual election in said village, to make put a tax, and according to the statute for raising highway taxes by commissioners of highways, except that such taxes shall be paid in money, estimating a day’s work at one dollar.</p> <p>They are required to issue a warrant to the collector, requiring him to collect the same and pay it to the treasurer.</p> <p>Every male inhabitant, of the age of twenty-one years and upward, is required to be assessed one dollar for one day’s ■labor, to be inserted in said warrant.</p> <p>The trustees, in assessing the highway tax, are to be •governed by the last assessment roll of the town of Lowville.</p> <p>The moneys raised for highway purposes are to be applied only to the same purposes that highway labor and commutations thereof may be used.</p> <p>The manner in which the highway taxes are assessed in. towns is regulated by the Revised Statutes. (1 Stat. at Large, 465, §§ 21, 22, 23.)</p> <p>Section 21 requires each overseer of highways to prepare a list of the names of the taxable inhabitants in his road district who are liable to work for the highway.</p> <p>The commissioners are required (§ 22) to make out a descriptive list of all non-resident lands, and to annex thereto the valuation placed upon them in the last assessment roll of . the town.</p> <p>The lists prepared by the overseers are (§ 23) to be delivered to the commissioners.</p> <p>They are then (§ 24) to ascertain the number of days’ work to be assessed, which is to be at least three times the number of taxable inhabitants, to which is to be added one day for a poll tax, against each taxable male inhabitant of twenty-one years of age and upward, except idiots, &c. &c.</p> <p>The residue of such days’ work is required to be assessed on the real and personal property of every inhabitant of the town, as the same appears on the last assessment roll of the town. And if, after such apportionment, there shall be a deficiency in the number of days’ work determined by the commissioners, such deficiency shall he assessed on the property of the inhabitants.</p> <p>On the easterly side of State street, in the said village of Lowville, and in front of a store occupied by one Jones, there was erected, seven years since, a plank sidewalk within the bounds of said street, which had become out of repair by reason of the removal or destruction of one of the planks thereof, leaving a hole about a foot wide and two inchós deep, and several feet in length.</p> <p>. In the evening of the 1st October, 1869, the plaintiff was coming out of thé store of said Jones and stepped into said opening and sprained his ankle; by reason whereof he suffered pain, and was put to expense, and was unable to labor for some time.</p> <p>For this injury the action was brought.</p> <p>On the trial the plaintiff proved the incorporation of said village, and the acts amending its charter, the passage, by the inhabitants at a meeting of those entitled to vote taxes, of a resolution “ to build a sidewalk on either side of State street six feet wide (where necessary),” the defect in the sidewalk, and the injury caused thereby.</p> <p>The referee ordered judgment, dismissing plaintiff’s complaint, with costs.</p>

This was-an action for the foreclosure of a mortgage. A decree of foreclosure was made on the 30th of March, 1872, and on the 20th April, 1872, the premises were sold by Gratz Nathan, referee, to Henry Welsh; the purchaser paid the referee $390, being ten per cent of the purchase-money, and fifty dollars auctioneer’s fee, making in all $440.

<p>This is an appeal from the decision of the surrogate of Delaware county, made on the 22d of Hovember, 1870, admitting to probate an alleged will of Henry Forman, deceased. The probate was contested by all the heirs, except Alexander Forman, a son who is the principal legatee and devisee, on the ground of the incapacity of the deceased to make a will, and also that it was not his free and voluntary act and deed, but the result of undue influence.</p> <p>The facts necessary for a proper understanding of the case appear in the opinion.</p>

This was an appeal by the defendant from a judgment in favor of the plaintiff upon trial at Special Term. The facts are stated in the opinion of Miller, P. J.

<p>In an action upon the warranty of a chattel, brought by an assignee, whose assignment in writing expressed a consideration “for value received,” held, that evidence of the actual amount paid on the assignment was properly excluded.</p> <p>And it was not error to disallow a cross-examination of the assignor, as to such amount, although he had given testimony as to the value of the chattel as warranted, there being no abuse of discretion in excluding it. Held, also, that an objection was properly sustained to the cross-examinatian of the assignor respecting his conversation with the warrantor directly after completion of the sale with warranty, the materiality of the testimony not appearing.</p> <p>Nor was it proper to show a conversation between the assignor and assignee, prior to the sale, as to the actual value of the chattel, as tending either to show that there was no warranty, or that he did not rely upon one.</p>

The plaintiffs brought an action against the defendant, in Justice’s Court of Schuyler county, in March, 1871, to recover a penalty of five dollars, for filling up and obstructing a certain ditch (constructed for draining water from a highway), under section 102, art. 5, title 1, chap. 16, part 1, R. S. On the trial it appeared that the obstruction was placed in the north end of a sluice, across the turnpike part of the highway.

This was an appeal from a judgment for the plaintiff, entered upon the decision of the court without a jury. . The action was brought to recover a penalty for violation of the act for the preservation of moose, wild deer, etc. (L. 1867, p. 2240, vol. 2), by which it is provided, among othei things, as follows: “ Section 1.

This was an appeal from the decision, of the surrogate of Delaware county, refusing probate to certain instruments propounded before him as the last will and testament and codicil thereto of James Dumond, deceased, and bearing date April 8, 1863, and June 23, 1863, respectively. The testator died at the age of eighty-seven years, having executed the instruments mentioned in his eighty first year.

Ceetiobabi to review the proceedings on application to bond the town of Delhi, Delaware county, before the judge of that county.

This was an appeal from a judgment for the plaintiff, entered on the report of a referee. The plaintiff sued, on the 17th September, 1869, to recover certain taxes paid by him, alleging the defendant’s liability, under a certain demise, as follows, viz.: “ This is to certify that the Albany railway have hired and taken from FT.

<p>This was a demurrer to a complaint in partition upon grounds which appear in the opinion.</p>

The action was brought to recover the amount of two notes, one for $1,000 made by the defendant as principal and her husband as surety, and one for $500 made by the defendant and her husband jointly; the former was alleged to have been used for the benefit of her separate estate. The answer admits the making of the notes and the separate estate of the defendant, but denies that the proceeds of the notes were used for the benefit of said separate estate.

<p>This was an appeal by the plaintiff and certain defendants from a judgment entered on the report of a referee.</p> <p>The action was brought for construction of the will of Samuel Vernon, deceased, and determination of plaintiff’s claim to dower, and a distributive share in the final distribution of the testator’s personal estate. The complaint also with other relief asked judgment directing the surviving partners in certain business of the testator to give adequate security for repayment of the testator’s part of the capital of the firm, with interest thereon at stated periods. The will was as follows, viz.:</p> <p>I give all my estate, real and personal property,- to my trustees and executors hereinafter named, and their heirs, on condition, nevertheless, that they will dispose of it as hereafter instructed, by the payment of the various sums mentioned and general disposition of property as directed.</p> <p>I give and bequeath to my beloved wife the house in which I reside, together with the eight lots adjoining. . This property might be sold by my executors, in connection with the adjoining house and lots belonging to my brother Thomas, for not less than $75,000, and my executors have full power so to do, andin vest the proceeds in good securities of not less than six per cent per annum, for her benefit during her natural life.</p> <p>I also give to my wife my interest in the stable-lot on Vanderbilt avenue, Brooklyn, opposite the rear of my garden.</p> <p>I also give to my wife $7,000 per annum for her life, to be paid semi-annually by my executors out of my share of rents of 65 and 67 Duane street store, and 23 Beekman street, Eew York, or, should that be insufficient, from the interest of other property hereinafter mefttioned, for the education and maintenance of self and children. My executors have full power to dispose of either of these stores, if necessary, for sums not less than hereinafter mentioned.</p> <p>The store in 23 Beekman street is jointly and equally owned by my brother Thomas and myself, and is worth $75,000; John Barry, of Beekman street, offered that amount for it; my brother Thomafe is at liberty to take it for that sum or pay it over to my executors for-' that amount, less the mortgage of $20,000.</p> <p>The store in Duane street cost, with elevators, fixings, &e., $275,000, and is jointly and equally owned by my brother Thomas and myself. My executors are hereby empowered to sell the property for not less than that, or to receive it in payment for that sum, in an equitable division of the capital employed in the business, as well as real estate above mentioned.</p> <p>The balance due me, employed in the business of Vernon Brothers & Co., July 1st, 1868, was ******</p> <p>Out of the property above described I make the following bequests:</p> <p>I give $4,000 to my nephew, George Vernon, to be paid at the end of three years after my decease. In the event of his death before the expiration of that period, the amount must be disposed of in- the manner cited for my residuary estate.</p> <p>I give to my nephew, Charles Vernon, $1,000.</p> <p>I give' to my niece, Elizabeth. Vernon, $1,000, to be paid to each in three years after my decease. In the event of the death of either or both of them before that period has expired, the amount to be disposed of in the manner cited for my residuary estate.</p> <p>I give to my nephews, Richard Vernon, Miles Vernon, Benjamin Vernon, Thomas Vernon, and Samuel Vernon, $200 each, to be placed at interest one year after my decease, on good security of not less than six per cent per annum, and the interest reinvested for the benefit of the legatees, and paid to each respectively, principal and interest, on their separate attainment of twenty-one years of age. In the event of death of either, the amount to be disposed of as provided in the other cases mentioned.</p> <p>I give to my brother, Miles Vernon, or his heirs, all my reversionary interest in Scotland House, Barnstable, England.</p> <p>I give to my sister-in-law, Harriet Vernon, widow of my late brother, Charles Wills Vernon, thirty pounds sterling per annum during her natural life, twenty pounds of which is already secured to her as a condition of the bequest of one-third interest in Scotland House aforementioned, bequeathed to me by my late brother, Charles Wills Vernon, on the death of his wife.</p> <p>The balance of my capital, due me at my decease by Vernon Brothers & Co., can remain in the hands of my surviving partners for five years) at interest at seven per cent, at the expiration of which period I desire it to be invested in good securities, bearing interest of not less than six per cent, for the benefit of my dear children, and to be distributed among them as follows:</p> <p>I give to Samuel Edward Vernon, my eldest son, on his attainment of twenty-four years old, $10,000. Frederick Richardson Vernon, on his attainment of twenty-four years of age, $10,000.</p> <p>Elizabeth Wills Vernon, $10,000 on her twenty-fourth birthday; should she marry with the approval of her mother and my executors, the amount may be paid at her marriage.</p> <p>I give to Marion- Adelaide Yernon $10,000, to be paid in the same way as prescribed for her sister, Elizabeth.</p> <p>I give to my son, Francis Joseph Yernon, $ 10,000, on his attainment of his twenty-four years 'of age.</p> <p>I give to my daughter, Frances Mary Yernon, $10,000; and to Harriet Eveline Yernon $10,000, to be paid each of them as directed for their sisters.</p> <p>I give $2,500 to the building fund of the Baptist Home Missionary Society, to be paid in five equal annual installments, the first installment to be paid one year after my • decease.</p> <p>I give $1,000 to the Baptist Home Missionary Society.</p> <p>I give $1,000 to the Missionary Union.</p> <p>I give $500 to the Long Island Baptist Association ; such amounts to be paid in five equal annual installments, commencing one year after my decease.</p> <p>I give to my brother, Thomas Yernon, the picture of our great-grandfather, and the pictorial Bible formerly belonging to our late niece, Elizabeth Yernon.</p> <p>This I declare to be my last will and testament, and name as my executors and trustees, my brother, Thomas Yernon, and my brother-in-law, Edward Richardson, M. D., of Brooklyn, this 1st day of September, 1868.</p> <p>SAMUEL YERUOH.</p> <p>Witnesses, &c.</p> <p>The referee made the following findings of fact and law, viz.:</p> <p>“ That Samuel Yernon, the testator mentioned in the complaint, resided, prior to his death, at 201 Lafayette avenue, in the city of Brooklyn, and that he died at his said residence on the 23d day of September, 1870. That prior to his death he duly made, published and declared his last will and testament, a copy of which is contained in the complaint.</p> <p>“ That said will was duly admitted to probate by the surrogate of said Kings county, on the 12th day of October, 1870, and letters testamentary issued to Thomas Yernon and Edward T. Richardson, as executors.</p> <p>“ That said testator left him surviving his widow, who is the plaintiff in this action, and six infant children, whose names and ages are as stated in the complaint.</p> <p>“ That Harriet Eveline Vernon, mentioned in the said will, died before the death of the testator, aged about two years.</p> <p>“ That said testator died seised and possessed of both real and personal property.</p> <p>That his real estate was as follows :</p> <p>“1st. The house in which he resided, known as Ho. 201 Lafayette avenue, Brooklyn, with about, eight lots of land, being 100 feet by 198 feet in size. , .</p> <p>“2d. A lot land in Vanderbilt avenue, Brooklyn, opposite the rear of the first mentioned premises.</p> <p>“ 3d. An undivided one-half of the store, known as Ho. 23 Beekman street, in the city of Hew York,'of which the other half is owned by Thomas Vernon, the brother and one of the executors of the testator, and one of the defendants herein.</p> <p>“ 4th. An undivided one-half of the store, known as Hos. 65 and 67 Duane street, in said city of Hew York, running through to Pearl street, and also fronting on Elm street, the other half of which is also owned by the said Thomas Vernon.</p> <p>“ That the above was all the real estate standing in the name of the testator at the time of his death.</p> <p>“ That at the time of the testator’s death, the firm of Vernon Brothers & Co., of Hew York city, of which the testator was a member, owned a certain paper-mill property at Horthampton, Massachusetts, which is included in the statement of testator’s interest in the capital of said firm, hereinafter mentioned.</p> <p>“ That the testator had, at his death, a reversionary interest in the property known as “ Scotland House,” at Barnstable, England, mentioned in said will.</p> <p>“ That there was, at testator’s death, a mortgage of $20,000, executed by the testator, upon the house and eight lots above mentioned in Lafayette avenue, Brooklyn; also a mortgage, executed by the testator and said Thomas Vernon, jointly, of $20,000 upon the said store property Ho: 23 Beekman street; also a mortgage, executed by the testator and said Thomas Vernon, jointly, of $75,000 upon the said store property Nos. 65 and 67 Duane street, and that said mortgages are still outstanding and are liens upon the said premises respectively.</p> <p>“ That there is no encumbrance upon' the said stable-lot in Vanderbilt avenue, and that the same is worth from $3,000 to $4,000.</p> <p>“ That the testator’s interest in the capital of the firm of Vernon Brothers & Co. was from $175,000 to $190,000, including the mill property at Northampton, Massachusetts. Said Northampton property is worth from $75,000 to $100,000.</p> <p>“ That the testator possessed at his death, besides his interest in the capital of his firm, personal property not exceeding in value the sum of $4,000.</p> <p>“'That the testator’s personal property, except the said $4,000, was all in the firm business and invested or employed therein.</p> <p>“ That the testator was indebted, at his death, apart from partnership and mortgage debts, tb about $8,000.</p> <p>“ That the net annual rents of said two stores amount to about $13,180, subject to fluctuations, and of which one-half belongs to said Thomas Vernon.</p> <p>“ That the store in Duane street is worth about $275,000, and the store in Beekman street about $75,000.</p> <p>“ That Harriet Wills Vernon, mentioned in the will, is from fifty to sixty years of age.</p> <p>“ That the surviving partners of the testator are said Thomas Vernon and David Scott.</p> <p>“ That the survivors of Vernon Brothers & Co., the firm of which testator was a member, continue the same business, viz.,’ the manufacture and sale of paper, and are running the said paper-mill at Northampton.”</p> <p>I find the following conclusions of law:</p> <p>“ First. That the executors named in the will took an estate, as trustees under the first clause in the will, in the testator’s property, real and personal.</p> <p>“ Second. That the widow (plaintiff) takes the house in Lafayette avenue, Brooklyn, and the eight lots adjoining, mentioned in the will, in. fee, subject to the mortgage for $20,000 above mentioned, and subject to a contingent power of sale in the executors.</p> <p>“ Third. That she takes the lot in Vanderbilt avenue, Brooklyn (called the stable-lot), in fee.</p> <p>“ Fourth. That she takes the annuity of $7,000.</p> <p>“ Fifth. That the above mentioned provisions for the widow (plaintiff), in the will, are in lieu of dower and thirds.</p> <p>“ Sixth. That the testator, in authorizing the executors to lend his interest in the firm to the survivors thereof, intended that such loan should be without security.</p> <p>“ Seventh. That the testator did not die intestate as to any part of his personal property, all of which, subject to the provisions of the will, is bequeathed to his children.</p> <p>“ Eighth. That there was not an equitable conversion of the realty into personalty, or of personalty into realty, as to the two store properties in Duane and Beekman streets,- under the provisions of the will relative to the disposition of those properties.</p> <p>“ Ninth. That Thomas Vernon should make the election granted to him in the will, as to said two store properties, within six months after the entry of judgment in this action, after which period his right to so elect should cease.</p> <p>“ Tenth. That the plaintiff should have a decree and judgment in this action in accordance with the above conclusions of law, and that the costs of the several parties to this action be paid out of the fund.”</p> <p>Exceptions to the referee’s findings were taken in due form, the character of which sufficiently appears from the opinion of the court.</p>

This was an appeal by the defendant from a judgment entered upon the report of a referee in favor of the plaintiff. The facts appear in the opinion.

<p>This was an appeal from a judgment entered on the report of referees. The facts are stated in the opinion.</p>