Volume 7 — New York Reports

, 517.) This action was brought to recover the sum of $1,625.13, alleged to have been deposited by plaintiff withdefendantin the name of Van Alen & Rice. Van Alen & Rice were merchants in the city of'Hew York. Hr. Van Alen, of this firm, was plaintiff’s brother. Prior to the 4th day of February, 1867, the plaintiff, who was a resident of Danville, Pennsylvania, had indorsed a note for Van Alen & Bice, which woulc^ mature on the 8th of March, 1867.

Whit of Error to the Supreme Court, sitting in the third district, where a peremptory mandamus had been awarded against the plaintiff in error. This was a suit commenced by mandamus, on the relation of Erastus R Phelps against George W. Newell, auditor of the canal department, to compel him to draw his warrant upon the state treasurer for the amount of an award by the canal commissioners in favor of the relator, under a contract for the enlargement of the Erie canal.

. This action was brought to compel the surviving executors of Henry Churchill, deceased, to execute a power in trust alleged to be contained in the will of said Churchill, by selling the undivided one-eighth part of certain-lands described in the complaint, devised by said will to Phebe Van Nostrand, one of the children of said testator, and dividing the proceeds among the plaintiffs. Phebe Van Nostrand died in November, 1865, and the plaintiffs are her surviving children.

(Reported below, 3 Lans., 160.) This action was brought against defendants as commissioners of highways of the towns of Geneseo and Leicester, in the county of Livingston, upon a contract made by their predecessors in office with plaintiff for the repair of a bridge over the Genesee river, which divides said towns of Geneseo and Leicester.

This action was brought to recover an alleged balance of account due them for advances and commissions for importations of a quantity of nitrate of soda, made by them for defendants.

This action was brought to recover damages for the loss of plaintiff’s horse, wagon and harness, alleged to have been occasioned by the neglect of defendant while the property was upon its boat, in the custody and care of plaintiff. On the 5th October, 1866, plaintiff drove his horse and buggy on board the defendant’s ferry-boat at Astoria to cross over to Hew York. He and his wife remained in the buggy.

This action was brought against defendant, as a common carrier by water, for damages alleged to have been sustained by reason of the improper delivery by him of goods brought by his ship, under the usual bill of lading, from Liverpool to Hew York.

These appeals are each from a judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of plaintiff, entered upon the decision of the court upon trial at circuit without a jury. These actions were brought to recover damages for an alleged breach of a contract similar in each.

(Reported below, 56 Barb., 542.) This action was brought to recover the possession of some cattle belonging to plaintiff, and alleged to have been unlawfully detained by defendant. The cattle in question were found by defendant trespassing upon his lands, in the town of Salisbury, Herkimer county, upon which they had entered from the public highway.

In 1852 Richard Tighe died intestate, seized in fee of two lots in the city of Brooklyn, and possessed of the lots in question, leaving a widow, Ellen, and two infant children, his only heirs-at-law, namely, Patrick Tighe and Letitia Tighe. In 1854 Ellen, the widow, intermarried with one Charles O’Mel, by whom in 1856 she had one son, William John O’Mel, who is now living. In 1864 Letitia Tighe died intestate, unmarried and without issue, aged about fifteen.

The action was for assault, and battery. After trial and judgment for plaintiff for damages and costs, the judgment was assigned to plaintiff’s attorney as security for his costs. Notice of the assignment and that plaintiff was insolvent was given to defendant. On appeal the judgment was set aside and a new trial granted, costs to abide event.

<p>Upon appeals from orders to this court, where costs are allowed by the court, the statute (Code, § 867, sub. 6) gives full costs.</p>

The assessment was confirmed ¡November 7th, 1870. On the 11th day of April, 1872, the petitioner served his petition upon the counsel to the corporation, with notice that on the 16th day of April, 1870, he would apply to the Supreme Court' for an order vacating the assessment named in his petition, so far as the same affected his property, upon proof then to be made of certain alleged legal-irregularities.

This was á motion for a peremptory mandamus to be issued to the county treasurer of the county of Hew York, directing him to pay the relator $3,208.78. On April 15th, 1855, the legislature passed an act (chap. 407, Laws 1855) appointing certain persons therein named commissioners of records for the city and county of Hew York.

(Reported below, 60 Barb., 48.) The action was brought to recover damages for the alleged conversion of thirty-one sacks of wool, part of a lot of fifty sacks, which the firm of Gay & Joslin- had placed in the hands of the firm of H. Rankin & Co. for sale on commission.

(Reported below, 50 Barb., 339; 1 Bans,, 494.) This action was brought upon a check drawn by the defendants, Mellen, Ward & Carter, under their firm name of Mellen, Ward & Co., upon the defendant, the State National Bank, and certified by the cashier oí said bank.

(Reported below, 6 Lans., 50.) This action was for partition. Henry A. Livingston died in 1849, leaving a will, by which, after giving his wife Frederica 0. Livingston, a life estate in his lands, with certain exemption from liability for use of them, he provided as follows: “Seventh.

These are appeals from orders of the General Term of the Supreme Court in the third judicial department, affirming, upon separate appeals, a decree of the surrogate of Columbia county, refusing to admit to probate what purported and was claimed to be the last will and testament of Amos Knox, deceased, and codicils thereto. The will was dated June 29th, 1858, to which there were three codicils, dated respectively July 4,1866) October 3,1867, and April 21, 1868.

■ The facts pertinent to the questions raised appear sufficiently in the opinion. The petition is defective and insufficient to give the court jurisdiction. (Laws, 1869, chap. 582; 1 Laws, 1872, chap. 88, § 3.) Every statute authority, in derogation of the common law, to divest the title of one and confer it on another, must be strictly complied with, and cannot be extended by inference or implication.

Appeal -from. judgment of the General Term of the Supreme Court, in the third judicial department, affirming a judgment in favor of the plaintiff, entered upon the decision ' of the court upon trial at Special Term. The action was brought to foreclose a mortgage, executed by John White, to this plaintiff, November 24, 1868, for $1,000.

This was a suit in equity, commenced in the late court of chancery, for the foreclosure of a mortgage given by Jeremiah Blydenburgh to Richard F. Blydenburgh, on the 3d August 1839, upon lands in Suffolk county, to secure the sum of $3497.13. *On the 5th August 1839, the mortgagee as- ^ ^ signed the bond and mortgage in question to William C. Atwell; and the mortgage and assignment were recorded on the 26th.

This action was for taking and converting personal property. The property consisted of machinery, utensils, lumber and other chattels formerly belonging to the firm of J. 0. Smith & Go., and appertaining to a yeast factory operated by that firm. From the 17th of August to the 22d day of December, 1866, the firm consisted of John G. Smith, Hollister E. Goodwin, John Wride, Marietta Huntington and William B. Hubert, each being interested to the extent of one-fifth.

Appeal in equity from the decree of the Superior Court of the city of New York, where, on a rehearing, a decree made at a special term of the supreme court, in the first district, had been reversed, and the plaintiff’s bill dismissed with costs.

Hill and Adam Aldrich, which had been taken by the Mohawk and Hudson Railroad Company, under the act of 16th April 1838, had been set aside, on certiorari.

A similar action was brought by Joacim Mesick, which .was tried below, and heard on appeal, at the same time. Hendrick Mesick, the plaintiff’s father, died in 1802 seised of the farm in question under a perpetual lease, by his last will and testament, he disposed of the same, as follows: “ I give and bequeath unto my beloved wife, Mary Mesick, that she shall hold and possess all my real estate now lying in the town of Claverick, county of Columbia, as long as she is my widow.

This was a suit in equity, commenced in the court of chancery, for the foreclosure of a mortgage, dated the 1st August 1830, given by John Neely to the New York Life Insurance and Trust Company, to secure the payment of the sum of $750, which covered certain lands in Twaalfskill, in Ulster county.

The nature of the action and the facts pertinent to the questions discussed appear sufficiently in the opinion. The death of' one of the partners dissolved the firm and put an end to their transactions as partners. (Collyer on Part., §§ 119-121.) The lease being part of the partnership agreement, ended at Johnson’s death.

(Reported below, 2 Sandf. 450, where a new trial was granted, after a former verdict in favor of the defendants.) This was an action of assumpsit brought by the plaintiff, as surviving partner of the firm of Abraham Bell & Co., against the executors of Samuel Leggett, deceased, to recover the amount of two promissory notes, dated 12th December 1845, one of them for $579.37, at six months, and the other, for $586.41, at nine months.

This action was brought by James Lynch, plaintiff’s intestate, late sheriff of the city and county of New York, to recover a debt alleged to be due from defendants to Stewart & Bramson, and which was claimed to have been attached by said Lynch. A. judgment was perfected in an action wherein Luther N. Fuller was plaintiff against said Stewart & Bramson, on the 31st of August, 1863.

This was an action of trespass. On the 1st day of June, 1850, defendant sold to John F. Porter the furniture in Rathbun’s hotel, in the city of New York, taking the bond of Porter for the amount of the purchase-money, payable on demand, secured by a mortgage upon the furniture. Upon the day of its execution, and also in April, 1851, demand was made for payment of the bond. The mortgage was duly filed on the 15th June, 1850. It was not refiled until July 3,1851.

This was an action of assumpsit against a factor, for disobeying the instructions of his principal, in the sale of two boat-loads of flour. Held: that the circuit judge erred in holding that assumpsit would not lie; but that the nonsuit was properly ordered on the other grounds. And judgment having been perfected in favor of the defendant, the plaintiff took this appeal.

This was an action to Recover damages for the seduction of the plaintiff’s minor daughter. The daughter, Sally Dain, when about fourteen years of age, had been indented as a servant to the defendant; by whom she was shortly afterwards seduced, and when about sixteen years old, became pregnant. The defendant induced the girl to take drugs, to procure an abortion, but the attempt was unsuccessful, and she gave birth to a living child.

This action was brought against appellant and the executors of the last will and testament of John Van Alstyne, deceased, to obtain an interpretation of certain bequests in the will, and to compel the executors to pay them over to plaintiff. The clauses in question were contained, one in the will, another in a codicil. The clause in the will was as follows: “ Ninth. I give and bequeath to the Society for the Belief of Indigent Females $5,000.” That of the codicil: “ First.

This was an action against the defendant, as sheriff of the county of Rensselaer, for a false return to a writ of execution issued out of the late court of common pleas of that county, at the suit of the plaintiff against the firm of H. A. & G. R. Benton.

(Reported below, 11 Barb. 574.) This was an ejectment by the widow of Joseph Ellicott, deceased, to recover her dower in certain lands in the city of Buffalo, bounded by Washington, Swan, Main, and South Division streets, of which her husband died seised.

This action was brought to recover moneys alleged to have . been paid by plaintiff upon judgments rendered against him as stockholder in The Hudson River Slate Company, and for costs incurred in defending the actions; which stock, before the incurring of the indebtedness for which the judgments were rendered, had been sold and transferred to Edward Underhill, defendant’s testator.

(Reported below, 13 Barb. 394.) This was an equitable action to stay the foreclosure of a mortgage given by the plaintiff for a balance of the consideration-money of a farm purchased from the defendant, as special guardian of Beattie Martin, an infant, on the ground of a mistake in the quantity of land upon which the price was computed. *On the 11th September 1846, Catharine Mar- _ vin, the defendant, who was the widow of Jacob 1 Martin, deceased, and general guardian of…

<p>Appeal from order of the General Term of the Supreme Court in the fourth judicial department, setting aside a verdict recovered by the plaintiff at the Circuit and granting a' new trial.</p> <p>The action was originally brought by Michael Madden, as administrator, to recover damages for the death of Ann Madden, alleged to have been caused by the defendant’s negligence.</p> <p>Michael Madden having died since the first trial, John. Maginnis was appointed administrator and substituted as plaintiff.</p> <p>On the 18th of May, 1870, at eight and a half o’clock in. the evening, Ann Madden was run over and killed by a train propelled by defendant’s engine, in Montgomery street, in the city of Albany, at a point about 143 feet south of Quackenbush street.</p> <p>The defendant’s train, consisting of a locomotive engine and five freight or express cars, was backing down from the Union depot; a portion of it was still above Quackenbush street, but a part of it, viz., about 140 feet, or three cars, was, below Quackenbush street. The length of the whole train was about 250 feet. Before Mrs. Madden attempted to cross , the street the train had so nearly stopped that no motion was perceptible; and, just as she was crossing, the brakes were taken off and steam applied, and the cars started forward and , struck her, knocked her down, ran over and killed her., It was not a dark night.</p> <p>There was no light at the rear end of the train, the brakeman who had the light having set it down on the north end of the car while he was applying and taking off the brake belonging to his car.</p> <p>Mo notice or warning of any kind was given that the car, which had been nearly stopped, was about to start on again.</p> <p>A person crossing the street near the south end of the car. could not see the light set down on the north end of the car, which was over forty feet long.</p> <p>Defendant’s counsel moved for a nonsuit, upon the ground, that there was no evidence of negligence upon the part of the. defendant and that the negligence of the deceased contributed.</p> <p>The motion was denied and defendant excepted.</p> <p>Defendant’s counsel asked the court to charge :</p> <p>First. That if the jury believed that the deceased, before-she reached the track, saw the train approaching, and notwithstanding this went upon the track, where she was hit by the car, she was chargeable with negligence and could not recover.</p> <p>The court so charged.</p> <p>Second. The defendant’s counsel also requested the court to charge, that if deceased went on the track without looking to see if the train was coming, that fact constituted negligence on her part, and she could not recover.</p> <p>The court so charged.</p> <p>Third. The defendant’s counsel also requested the court to charge, that if the jury believed that deceased could, before she placed herself on the track, have seen the approaching train by looking, then her being on the track where the train hit her was, under the circumstanced of this case, conclusive evidence of contributory negligence on her part, and plaintiff could not recover, whether, in fact, deceased did look or not.</p> <p>The court said: I so charge. I charge, not that it is negligence, but that it is evidence of negligence. I decline to charge that it is “ conelmsvoe ” evidence; I will say it is high evidence.</p> <p>Defendant’s counsel excepted to refusal to charge that it was “ conclusive ” evidence.</p> <p>Fourth. The defendant’s counsel also requested the court to charge that, under the evidence in this case, it was immaterial whether or not there was a light on the rear car or whether the bell was rung or not.</p> <p>The court refused so to charge. Defendant’s counsel excepted. ■</p> <p>Fifth. The defendant’s counsel also requested the court to charge, that the increase of speed testified to by Lilly, as made in order to clear Quackenbush street, was not negligence or any evidence of negligence.</p> <p>The court said: I charge that if they believe the train was moving down at its accustomed speed, as it was wont to do, and was nearly stopped, then if they gave it a sudden impetus and an undue one, and the accident was occasioned by that means, I hold that is evidence of negligence; not that it is negligence, but evidence of negligence.</p> <p>Defendant’s counsel excepted to the refusal to'.charge as" requested, and to the charge as made.</p> <p>Sixth. Defendant’s counsel also asked the court to charge, that there is no evidence in the case of any sudden or undue increase of speed in the train, before the deceased was hit by the rear car.</p> <p>The court said: That is a question of fact. I do not think there is evidence to show at what rate the increase of speed was; but that is for the jury. And it is for the jury to determine whether the accident was before or after the increase of speed and letting on of steam.</p> <p>Defendant’s counsel excepted to the refusal to charge as requested, and to the charge as made.</p> <p>Seventh. Defendant’s counsel requested the court to charge that if the jury believe that the train continued its motion toward the south, from time it commenced- backing near the Union depot until the deceased was hit by the car, and that she could have seen the train, had she looked at any time from when she left Brady’s door until she was hit, the plaintiff cannot recover in the action, whether she did in fact look: or not.</p> <p>The court said: So charged, unless there was a sudden and undue increase of speed.</p> <p>• Defendant’s counsel excepted to the refusal and modification.</p> <p>Eighth. Defendant’s counsel requested the court to charge,: that if the train was moving toward the south all the time that deceased was going from Brady’s door to the place where she was hit, it was negligence in her to go upon the track when she did go, and plaintiff cannot recover.</p> <p>The court said: I charge that, with the same modification,'</p> <p>Defendant’s counsel excepted to the modification.</p> <p>Ninth. Defendant’s counsel requested the court to charge, that there was no obligation on the part of the defendant to run the train at.a uniform rate of speed, and that if the deceased went upon the track while the train was moving, supposing that its rate of speed1 would not be increased, and that she could therefore cross in safety, that was negligence on her part and the plaintiff cannot recover.</p> <p>Defendant cannot avail himself of a previous motion for a nonsuit, if he afterward furnishes evidence which supplies the alleged defect. (Bullard v. Lockwood, 1 Daly, 158.)</p> <p>Plaintiff was guilty of negligence in omitting to look before going on the track. (Gorton v. Erie Railway, 45 N. Y., 100; Wilcox v. R. W. and O. R. R., 39 id., 358; Beisiegel v. N. Y. C. R. R., 40 id., 21; Grippen v. H. R. R. R., 40 id., 34; Havens v. Erie Railway, 41 id., 296 ; Baxter v. T. and B. R. R., id., 502; Harty v. Cent. R. R. of N. J., 42 id., 468, 473; Penn. R. R. v. Goodman, 62 Penn., 329; Stubley v. L. and N. W. R. [L. R.], 1 Exch., 13 ; Skelton v. Same [L. R.], 2 C. P., 631; Siner v. G. W. R. [L. R.], 4 Exch., 117.) It was entirely immaterial whether there was a light on the end of the rear car. (Stebes v. Oswego R. R., 18 N. Y., 422; Galena R Co. v. Loomis, 13 Ill., 548.) Defendant was only bound to have a bell on the locomotive. (Grippen v. N. Y. Cent., 40 N. Y., 34.) The failure to ring the bell could by no possibility have contributed to the disaster. (Chap. 282, Laws of 1854, § 7.)</p>

This was an action of indebitatus assumpsit, brought by the plaintiffs, who were auctioneers in the city of New York, to recover the price of sixty boxes of oranges, purchased by the defendant. The defendant pleaded non assumpsit, and gave notice of special matter. In May 1848, A. A. Sus & Co. received a consignment of oranges and lemons from Messina, by the schooner Gladiator, which they employed the plaintiffs to sell, on board.

These are appeals from orders of the General Term of the Supreme Court in the first judicial department, affirming orders of Special Term, one denying an application for a writ of peremptory mandamus to compel the board of apportionment and audit of the city of Yew York to allow certain claims of relator, and the other denying an application for a mandamus to compel the comptroller of said city to pay said claims.

(Reported below, 13 Barb. 577.) The plaintiffs claimed to recover the sum of $300, being three times the value of a picture, entitled “ The Huguenots going to worship in Charleston Harbor,” as a forfeiture under the provisions of the revised statutes relating to “raffling and lotteries” (1 R. S. 664); and in addition thereto, the penalty of $10 prescribed by § 22 of the act.

(Reported below, 5 Lans., 451.) This action was brought upon an award in favor of Elvira A. Dunham, plaintiff’s testatrix, made and published August 31, 1857, by which defendant was decreed to pay her §2,000, and interest from Hay 1, 1854. The testatrix was a married woman, and so continued until her death, which occurred February 4, 1862. This action was commenced February 18, 1867. The defence was the statute of limitations.

TMs action was brought upon a promissory note. After setting forth the note, and the deposit as collateral security for its payment of 2,000 shares of the capital stock of the New York Guano Company, the complaint alleged a sale of the collaterals for $1,928.57, and application thereof upon the note, and asked judgment for the balance.

This action was brought upon two promissory notes, each of $1,500, given by defendant to Pierrepont Isham, plaintiff’s testator. The answer alleged that the notes were given in part payment of a farm conveyed by said Isham to defendant, situate in Bergen county, Hew Jersey.

(Reported below, 13 Barb. 577.) The facts of this case were the same as those in the Governors of the Almshouse v. American Art Union (ante 228). The claim was for a forfeiture of 310 works of art which the defendant was about to distribute among its members, pursuant to § 27 of the act concerning raffling and lotteries. (1 R. S. 666.) The court below gave judgment for the plaintiffs, whereupon, this appeal was taken.

* 243 1 Appeal from the general term of the Supreme -* Court, in the sixth district, where a decretal order declaring void the will of Sidney Smith, deceased, had been affirmed, and a final 'decree entered in accordance therewith.

This action was brought to recover an excess over the purchase price of a piece of land, alleged to have been paid by mistake. In 1864, Archibald Young and Archibald Young, Jr., plaintiff’s assignors, entered into a verbal agreement with defendant for the purchase of a farm, situate in Argyle, Washington county, belonging to the latter, fdr the price of ' forty-four dollars per acre. Defendant represented and supposed the farm contained 100 acres.

order directing judgment on account of the frivolousness of the answer. • The General Term reversed the judgment, with costs of appeal, “ with leave to plaintiffs to demur, to answer or go to trial, as they may elect.” Upon this order, defendant entered judgment in form for costs, from which this appeal was taken.: On the appeal to the General Term, the only question presented was, whether the answer constituted a good defence.

(Reported below, 4 Lans., 314.) This action was brought to recover possession of a house and lot in the village of Corning. Plaintiff claimed under a deed from Charles H. Berry and wife. The defence was that the deed was taken by plaintiff simply as security for a loan of money to defendant’s deceased husband,-Daniel D. Carr. The facts sufficiently appear in the opinion.

This was an action upon a charter-party, dated the 18th February 1847, made between the plaintiff and the firm of Schmidt & Balchen, but executed by Balchen only, for refusing to furnish a cargo. The charter-party purported to be made between A. E. Ashburner, of Philadelphia, managing owner of the schooner John Hartman, of Philadelphia, “of the burden of one hundred and ninety tons, or thereabouts, now lying in the port of New York,” and the firm of Schmidt & Balchen.

(Reported below, 6 Lans,, 420.) This action was brought to recover the value of 5,000 bushpls of wheat destroyed by fire while in defendants’ elevator at Ogdensburgh. The facts sufficiently appear in the opinion. The referee found that, at the time of the fire, defendants held the grain as common carriers, and were liable for its value. The grain which was burned was in defendants’ possession as warehousemen merely.

This was an action of assumpsit against the defendant, as indorser of two promissory notes, made by Jacob Ferdon, dated at the city of New York, and payable at six months. One of them, bearing date the 30th October 1843, was signed, “ Jacob Ferdon, tailor, 194 Clinton streetthe other, bearing' date the 18th November 1843, was signed, “ Jacob Ferdon.” The defendant’s indorsement was admitted to be genuine; the only question, on the trial, was, whether he had been duly charged.

This action was brought to recover the purchase price of a quantity of hops alleged to have been sold to defendant. The answer set up, among other things, a defect of parties defendant in the omission to join George I. Wilber. The contract for the purchase of the hops was made by one Vosburgh, who represented himself as the agent of the defendant.

This was a bill in equity, filed in the late court of chancery against the Bank of America, and the National Bank, to compel the latter to issue new shares of stock to the complainants, in lieu of certain shares which had been transferred on a forged power of attorney, and for general relief. Prior to 1842, the plaintiffs’ brother, Andrew Pollock, had been a clerk in the Bank of America. They were each the owners, inter alia, of 25 shares of stock of the National Bank.

This action was brought to recover the value of 1,3 64 gallons of wine alleged to have been unlawfully taken and converted by defendant. Plaintiff purchased the wine of one Theodore Lingenfelder at ninety-two and a half cents per gallon. He paid a debt of Lingenfelder of $250, paid the duties at the custom-house and bonded warehouse, and the balance he paid in money.

This action was brought to redeem certain premises alleged to have been conveyed by plaintiff to defendants’ testator, James S. Bertine. Bertine, having a judgment against plaintiff instituted supplementary proceedings thereon, the same being conducted by John M. Pinckney, Esq., his attorney. Upon the examination of plaintiff therein it appeared he was the owner of two lots in the city of Mew York.

Writ of Error to the Supreme Court, sitting in the first district, where a judgment of the Superior Court of the city of New York had been affirmed. This was an action of assumpsit against Michel Caffe, as acceptor of three bills of exchange, drawn upon him by F. Yatin, Jr. & Co., of St. Quentin, in France.

<p>Appeal from a judgment of the General Term of the City Court of Brooklyn, affirming a judgment in favor of plaintiff entered upon a verdict.</p> <p>This action was brought to recover for certain “ granite culvert heads ” alleged to have been sold and delivered to defendant by plaintiff.</p> <p>Defendant, through its “ permanent board of water and sewerage commissioners,” contracted with two persons by the name of Keleher for the construction of certain sewers in its public streets. The contract provided that the Kelehers should put in the usual street culverts at the corners of the streets with granite heads or caps to the same. It also contained the following clause:</p> <p>“ The said parties of the second part further agree that if at any time the engineer shall be of opinion that the said work is unnecessarily delayed, and will not be finished in the prescribed time, he shall notify the contractor in writing to that effect. If the contractor should not, within five days thereafter, take such measures as will, in the judgment of the engineer, insure the satisfactory completion of the work, the engineer may then, by and with the consent of the commissioners, notify the aforesaid contractor to discontinue all work under the contract, and it is hereby agreed that the contractor shall immediately respect said notice, and stop work, and cease to' have any rights to possession of the ground. The engineer shall thereupon have the power, under the direction of the commissioners, to place such and so many persons as he may deem advisable, by contract or otherwise, to work at and to complete the work herein described, and to use such material as he may find upon the line of said work, or to procure other materials for the completion of the same, and to charge the expense of said labor and materials to the aforesaid contractor, and the expense so charged shall be deducted and paid, by the parties of the first part, out of such moneys as may be then due, or may at any time thereafter grow due to the said contractor, under and by virtue of this agreement, or any part thereof; and in'case such expense is less than the sum which would have been payable under this contract, if the same had been completed by the parties of the second part, they shall be entitled to receive the difference; and in case such expense is greater, the parties of the second part shall pay the amount of such excess, on notice from the commissioners of the excess so due.”</p> <p>Plaintiff contracted with the Kelehers to furnish them the granite culvert heads needed for the work, to be paid for when they were set, inspected and approved.</p> <p>Under this contract plaintiff delivered upon the line of the work, where they would be required, forty-two sets.</p> <p>The Kelehers partially performed the contract, using and setting a portion of the stones so furnished, and then abandoned the contract. The city authorities assumed the work, took and used the materials on the line brought for the purpose, including those delivered by plaintiff. Other facts appear in the opinion,</p> <p>The reservation of title in the Kelehers’ contract was void as to defendant. (Steel yards v. Singer, 2 Hilt., 96; Ludden v. Hazen, 31 Barb., 650; Bonsteel v. Flack, 41 id., 435, 440 ; S. C., 27 How. Pr., 310.)</p>

This was an action of replevin for ninety-four bales of cotton, brought by John G. Winter, the plaintiff, as mortgagee of John Hunter, against the firm of Henry Coit & Co., merchants in New York. In January 1844, John Hunter, a resident of Columbus, in Georgia, consigned a quantity of cotton to the defendants for sale, under an arrangement that he might draw on them for three-fourths of its cost at Columbus.

The action was brought to recover a balance of $1,249.19, alleged to be due from the defendants to the plaintiff on the 11th of November, 1864.

Writ of Error to the general term of the Supreme Court, sitting in the first district, where a conviction of the plaintiff in error upon an indictment for grand larceny, in the Court of General Sessions of the Peace in the city of New York, had been affirmed. Manley, the plaintiff in error, was indicted in the Court of General Sessions for the crime of grand larceny.

This was a writ of certiorari issued to review the decision of said county judge in proceedings to hond the town of Orleans (under the provisions of the acts chap. 907, Laws of 1869, and chap. 925, Laws of 1871), Jefferson county, in aid of the Clayton and Theresa Railroad Company. The petition was presented to defendant, county judge of said county, who, at the time fixed by notice, proceeded to take the proofs in the case.

Plaintiff in error, was indicted for forging and uttering a check, which was set forth in the indictment. Upon the check, as given in evidence upon the trial, appeared the indorsement of the .payees named therein, and a revenue stamp was attached thereto. The counsel for the prisoner requested the court to direct the jury to acquit upon the ground of variance between the indictment and the proof, in that the indictment did not set forth the indorsement or the revenue stamp.

(Reported below, 9 Barb. 595.) This was an ejectment for a lot of ground in Prattsburgh, in Steuben county, constituting a part of'the lands known as the Pulteney estate, which the plaintiffs claimed as the trustees thereof. *On the trial before Marvin, J., without a jury, „ ... the plaintiff having deduced title to Charles *- Williamson, for a large tract of land, of which the lot in question was a part, gave in evidence a deed from the said Charles Williamson and wife, to…

The action was brought under the provisions of chapter 869, Laws of 1868, to set aside a canal repair contract on the gi-ound of fraud. Defendants demurred. The demurrer was argued June 2, 1870. The court decided on the argument ■sustaining the demurrer. The cause was argued on behalf of the people by the then attorney-general, Hon. M. B. Champlain, and by Hon. S. E. Church for defendants. i The latter had been elected chief judge of the Court of Appeals.

This action was brought to compel defendant to account for certain moneys alleged to have been received by him as agent, and upon a policy of insurance upon the life of plaintiffs intestate, Ormond H. Dutton. Said Dutton had a policy of insurance upon his life for $5,000, issued by the National Life Insurance Company of Montpelier, Yt.

<p> jRight of eminent domain. </p> <p>The legislature may, by virtue of the right of eminent domain, authorize the taking of private property, by a municipal corporation, for public purposes, upon payment of a just compensation; in such case, there is no reversionary interest in the representatives of the original owner, and the property so acquired may be diverted to other purposes.</p>

This action was brought upon an alleged contract, of which the following is a copy: “New Yoke, 13th May, 1861. “We agree to deliver.P. S. Justice 1,000 Enfield pattern rifles with bayonets, no other extras, in New York, at eighteen dollars each, cash upon such delivery. Said rifles to-be shipped from. Liverpool .not later than 1st July, and before if possible. “ W. BAILEY LAW & CO.” ; Defendants constituted the firpi signing it.

<p>Banking association. — Powers of receiver. — Usury.</p> <p>Banking associations, organized under the act of 1838, are subject to the general laws relating to moneyed corporations, except where they are inconsistent with that act, and its supplements.1</p> <p>They have no power to purchase state stocks, to sell at a profit, or as a means of raising money, except when received as security for a loan, car in payment of a debt; and if they assign mortgages as collateral security for certificates of deposit, issued for stocks so purchased, in violation of law, with notice on the part of the vendor, the transaction is illegal, and the assignments void.</p> <p>A transaction, by a banking association, in excess of its powers, is void; and a receiver may reclaim securities transferred by it, in violation of law.</p> <p>To constitute usury, there must be a loan, a taking of more than lawful interest, and a corrupt agreement; it is not usury, for a banking association to receive a mortgage for its stock, though the market price is below par.</p>

This action was brought to determine the validity of certain devises and a bequest contained in a codicil to the will of William Creighton, late of Ossining, Westchester county.

This action was to foreclose a mechanic’s lien for work and •' materials furnished to defendant Chase, and used in the erection of eleven houses in the city of Brooklyn.

This an action of assumpsit upon a special contract in writing between the parties, bearing date the 26th August 1841. Held: as trustee, a judgment confessed by Woodward to secure certain creditors, and among others, the plaintiff, as indorser.

This action was brought upon a check drawn by defendant. The check was drawn upon the Ocean National Bank, was dated November 21st, 1871, for $1,410, payable on the 12th December, 1871, to the order of James Dolby. It was delivered to the payee and discounted for him by plaintiff. At eleven o’clock a. m. of the 12th December, plaintiff caused the same to be presented to the drawee for certification, and it was certified as good.

This was an action on the case, to recover damages for the alleged fraudulent conduct of the defendants, as the plaintiff's agent. The declaration alleged that the defendants, Merritt & Wheaton, were engaged in the business of collecting bills, for cattle sold by drovers, at the Bull’s Head market, in the city of New York.

This ■ action was brought to recover damages for the death of plaintiff’s intestate, Isaiah Totten, alleged to have been occasioned by defendants’ negligence. The deceased was killed by falling through a hatchway in the hall of a building owned by defendants, the third and fourth stories of which had been leased by them to said deceased. The means of access to the upper part of the building was through the hall, in which was the hatchway. Further facts appear in the opinion.

where a motion for a new trial, made on a bill of exceptions, had been denied, and judgment rendered on a verdict in favor of the plaintiffs. This was an action of trover, for the conversion of five hundred barrels of flour, which had been stored by one Hollom Hutchinson in the warehouse of P. Carpenter, at Scottsville, in Monroe county, and subsequently forwarded to the defendants, in New York. The plaintiffs claimed title as the holders of a warehouse receipt.

The submission was for the purpose of obtaining a construction of the last will and testament of Benjamin H. Hatch, late of Fort Edward, Washington county, deceased. - The following were the clauses under consideration : , “ First. After my death my executors, hereinafter named, shall sell at public or private sale, as they may deem best, all my personal and real estate. , “ Second.

The action was begun May 28, 1869, against the Michigan Southern & Northern Indiana Railroad Company, a foreign corporation, and against its directors and treasurer, to recover a balance of certain dividends, on certain guaranteed ten per cent stock issued by that company in 1857, and denominated “construction stock,” which dividends were, as is alleged, agreed to be paid in preference to dividends on the common stock.

This was a bill in equity, filed in the late court of chancery, for the foreclosure of a mortgage given to the plaintiffs by Chester and Aaron Beebe, on the 12th April 1836, to secure the payment of the sum of $3000, on the 12th April 1846, with interest, half-yearly, at the rate of seven per cent, per annum. Other persons were made parties, as subsequent incumbrancers, who *permitted the bill to be taken pro confesso * 365 J aga^ns^ them.

Clark Whitaker, defendant’s intestate, died November 6th, 1869, leaving no children, and leaving defendant, his widow, his father and three brothers, him surviving. On the 27th February, 1871, defendant presented a petition to the surrogate claiming that she held a promissory note made by her husband, given to her in his lifetime, and asking that proper steps might he taken for its allowance, etc. The allowance was contested by the father and the three brothers.

This was an action upon a policy of insurance, dated the 6th May 1843, whereby the defendants insured the plaintiffs against loss or damage by fire, to the amount of $2000, upon their stock as rope-manufacturers (their own or held by them in trust or on commission), contained in the brick building, with tin roof, “ occupied as a storehouse,” situate on the northerly side of, and about 42 feet distant from, their ropewalk, at Bush wick.

This was an action in the nature of a quo wwrranto, brought to test the title to the office of collector of the town of Flatbush, Kings county. At a town meeting held in said town on the 5th day of April, 1870, defendant was elected to the office of collector of taxes for said town, and took and filed an oath of office as such collector.

(Reported below, 1 Park. 308.) The appellant, Newton Gay, in October 1851, was convicted of the crime of rape upon the person of one Sarah Pilling, in the Court of Oyer and Terminer of Columbia county, and sentenced to imprisonment in the state prison, at Sing Sing, for the term of ten years.

This action was brought originally in Justice’s Court to recover penalties alleged to have been incurred by taking toll at the gate of a plank-road company after notice from the inspectors of turnpikes to open the same. Judgment was rendered in favor of plaintiff, and the case was taken by appeal to the County Court. , ' The gate kept by defendant was upon the Rlatbusb. planlcroad, a company organized under the plank-road act (chap. 210, Laws of 1847).

Writ oe Error to the Supreme Court, sitting in the first district, where the judgment of the Court of Oyer and Terminer of the city and… Held: that the “ premedi- -* tated design” mentioned in the statute required not only a design to kill, but that the design must have been the subject of meditation or reflection; that the design to kill should be thought of and meditated, before the act committed which is the cause of death, and that an interval should elapse between the…

<p>A husband is not next of kin of the wife, within the meaning of the act “ requiring compensation for causing death,” etc. (chap. 450, Laws of 1847, amended by chap. 256, Laws of 1849), and previous to the amendment in 1870 (chap. 78, Laws of 1870) he was not entitled to a distributive share of any recovery, under said act, for causing her death.</p> <p>Where a husband had brought an action as administrator of his deceased wife under said statute, prior to the amendment of 1870, and after the passage of such amendatory act settled the same,—Held, that the last act did not change the rule of distribution in such case, and that the husband was not entitled to a share of the sum received on such settlement.</p> <p>A construction of a statute which will deprive one class of persons of the benefit of a recovery, given by a law existing when the action was commenced, and transfers it to another, will not be adopted unless there be the clearest expression of such legislative intent.</p>

■ Appeal by the city of Brooklyn from an order of General Term of the Supreme Court in the second judicial department, affirming an order of Special Term vacating two assessments upon the property of petitioners.

Writ op Error to the Supreme Court, sitting in the first district, where the judgment of the New York oyer and terminer had been reversed. (Reported below, 1 Park. 347.) James Sullivan had been convicted in the New York oyer and terminer of the murder of Edward Smith; but the judgment had been reversed by the supreme court, on error.

This action was brought upon two promissory notes made by defendant Devlin, payable to defendant Earle, and indorsed by the latter to plaintiff. The defendant Devlin only answered.

This was an action of trespass quare clausum fregit, brought by John Blacksmith, a Seneca Indian, belonging to the Tonawanda band, against the defendants, Joseph Fellows and Bobert Kendle, for entering, with force and arms, into the close of the plaintiff, commonly known as an Indian saw-mill and yard, in the town of Pembroke, in the county of Genesee, and then and there expelling and dispossessing the plaintiff.

The plaintiff commenced the action by service of summons in the form prescribed by the first subdivision of section 129 ■of the Code. No copy of the complaint was served with the summons. Upon an affidavit of the non-appearance of the defendant, plaintiff procured an assessment of damages by the clerk and perfected judgment thereon on the 21st January, I860. The complaint alleged fraud in the contracting the debt in suit.

This action was for false imprisonment. Defendant had recovered a judgment against one Joseph S. Thompson, in Justice’s Court, in Wayne county. A transcript was filed and judgment docketed in the county clerk’s office, and execution was issued to the sheriff, which was returned unsatisfied. Application was thereupon made to the county judge for an order requiring plaintiff to appear and answer under section 294 of the Code.

This action was brought to recover damages for an alleged breach of warranty in an executory contract for the sale and delivery of eighty barrels of rock-candy syrup. The facts sufficiently appear in the opinion. Plaintiffs, after an opportunity for examination, having accepted the goods are bound by such action.

This action was brought upon two promissory notes executed by defendant, one of $192.68, and one of $300. The defence as to the first note was abandoned. The questions presented as to the second, and the facts pertinent thereto, are sufficiently stated in the opinion. The note for $300 was void for want of consideration.

This was a certiorari directed to the defendant, Soper, as county judge of Genesee, to remove certain proceedings had before him for the removal of Waldron and others, the relators, as intruders upon Indian lands.

This action was brought to recover damages for the loss of three packages and contents, delivered to defendant at Hew York for transportation to Dunkirk. The packages were destroyed enroute on the occasion of the “ Mast Hope” disaster. The packages, in addition to plaintiff’s personal baggage, contained articles of merchandise.

This was an action of trespass against the sheriff of Cayuga county, to recover damages for the taking of 193 barrels of flour, by virtue of a writ of replevin sued out by John G. Brown.

<p>Under the provision of the act for the correction of assessments, etc. (§ 1, chap. 453, Laws of 1865), which provides, that in case property has been omitted in the assessment roll of the next- preceding year, it shall be the duty of the assessors, upon application, to enter the same in the assessment of the current year, at the valuation of the year when it was omitted, or, if not then valued, at that of the preceding year; whenever it is ascertained that property has been omitted, and application is made as prescribed by the statute, the duty of the assessors is ministerial, and they have no discretion. They must enter the property at the valuation of the year preceding, if it was valued upon the assessment roll of that year; if not, of the year preceding that; they cannot change the valuation. If the property was not valued in one of those years the assessors have no power to enter it upon the assessment roll.</p> <p>Where a clause is inserted in a judgment without authority, the proper remedy is by motion in the court below to correct the judgment, not by appeal.</p>

This action was brought to recover damages for injuries, alleged to have been occasioned by the negligence of defendant. The accident occurred at a crossing near the city of Rochester. Plaintiff was traveling upon the highway. His-carriage was struck by a train upon defendant’s track and. he was thrown out and injured. The facts, as far as they relate* to the questions decided, are sufficiently stated in the opinion.

(Reported below, 3 Sandf. 545.) This was a suit in the nature of a creditor’s bill, brought by judgment-creditors of the defendant, Robert H. White, to set aside, as fraudulent and void, an assignment for the benefit of creditors, made by the judgment-debtor to the other defendant, William H. Seward, on the 16th December 1847. .

Wbit of Eebob to the Supreme Court, sitting in the sixth district, where the judgment of the Otsego oyer and terminer had been affirmed, on certiorari. The plaintiff in error, Abijah Lamed, was tried for burglary, in the oyer and terminer; convicted of burglary in the third degree; and sentenced to imprisonment in the state prison for the term of five years.

<p>In order to give a magistrate jurisdiction in summary proceedings instituted by the grantee of a tax title from the city of Brooklyn, as authorized by the charter of that city (Laws of 1854, chap. 884, title 5, § 88), the affidavit presented must show that the applicant is entitled to the actual possession of the premises and that the occupant holds in hostility to his title. An affidavit stating that the person in possession refused to deliver the same upon demand is insufficient.</p> <p>The summons in such case must be made returnable in not less than three nor more than five days. A summons returnable upon the same day it is issued is irregular, and gives no jurisdiction to enter judgment upon default of appearance on the part of the occupant.</p> <p>A writ of certiorari is properly awarded to review such proceedings upon the application of one who was owner of the premises when the tax was levied, and where the proceedings are against his tenant.</p> <p>The granting of a writ in such case is in the discretion of the court; if improvidently granted it may be quashed upon motion; but where no motion to quash or supersede it is made, and judgment is passed by the court below upon the questions raised by the return, the objection that the relator is not the person entitled to sue out the writ will not be entertained upon appeal.</p>

a judgment entered upon the decision of the court at Special Term. This action was brought by plaintiffs as executors, etc., of Roxana Childs, formerly of Utica, E. Y., to procure a construction of her last will and testament. The will was dated July 11, 1865, and the following are the clauses in question: “Fifth. I give the sum of $25,000 to the TJtica Orphan.

(Reported below, 8 Barb. 397.) This was an action against the defendants to recover the amount of a draft for $1800, which the plaintiff had transmitted to the Albany City Bank for collection, on the ground of omission to charge the indorsers. •*It was shown, on the trial, before Watson, J., that the plaintiff was the owner, and holder for value, of a draft bearing date the 7th day of June 1848, drawn on Morgan Gray, No. 15 South street, New York, by Loucks & Gray, at…

This was a bill in equity to foreclose a mortgage given by Lysander Curtis, the defendant, to the plaintiffs, on the 15th January 1839, upon eighty acres of land in Erie county, part of a large tract owned by the Holland Land Company. In 1830, the Holland Land Company entered into an executory contract with the defendant, for the sale of the eighty acres of land in question, for the sum of $320, payable in eight years; the defendant paid $16 on account of the purchase- money.

Ebbob to the General Term of the Supreme Court of the first judicial department to review judgment affirming a judgment of the Court of General Sessions in and for the city and county of Mew York, entered upon a verdict convicting the plaintiff in error of the crime of murder in the second degree. • The plaintiff in error was indicted for murder in the first degree, in killing his wife. The defence interposed was insanity.

<p>Appeal 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 decision of the court at Special Term.</p> <p>The nature of the action and the facts pertinent to the questions discussed appear sufficiently in the opinion.</p>

<p> Lease; breach of covenant by lessors; measure of damages. </p>

This was an action for goods sold and delivered. The complaint was as follows: “The plaintiffs complain against the defendant, for that the defendant is indebted to the plaintiffs in the sum of three hundred and seventy-one dollars and one cent, for goods sold and delivered by the plaintiffs to the defendant, at his. request, on the first day of May 1849, at the city of Buffalo, in said county. And the- plaintiffs say, that the items in their account exceed twenty in number.

This was an application for a peremptory mandamus against the defendant as comptroller of the State.

(Reported below, 11 Barb. 645.) This was an action against the defendant, Seymour N. Marsh, as indorser of two promissory notes, made by the firm of Loucks & Gray, payable to the order of Peter G. Loucks, and indorsed by him and Marsh. The makers were joined as defendants.

(Reported below, 7 How. Pr. 134, and, at special term, 4 Id. 423.) This was an action by the assignees of Stephen W. Brown, to recover a surplus received by the Bank of Utica, upon a mortgage pledged to it as collateral security for his own promissory notes, and one of the firm of Brown & Rossiter, and to compel a delivery of the notes to the plaintiffs, as assignees.

These are cross appeals from an order of the General Term of the Supreme Court in the first judicial department, modifying an order of Special Term, directing Messrs. Cullen & McGowan, plaintiffs attorneys, to pay over to Sheperd F. Knapp, receiver of the plaintiff, certain moneys in their hands, collected herein, or that an attachment issue against them. The action was for the foreclosure of a mortgage.

(Reported below, 14 Barb. 101.) The complaint set forth that, in 1849, the common council of the city of Buffalo, in pursuance of authority conferred by law, resolved that a sewer be constructed in Elk street, in said city, from the Clark and Skinner canal to the Canal slip near Louisiana street; and the street commissioner of said city was, by such resolution, directed to contract with the defendant for the construction of said sewer, in accordance with the proposals for…

<p>A contract void by the statute of frauds cannot be enforced directly or ' indirectly. It confers no right, and creates no obligation, as between the parties to it, and no claim can be founded upon it as against third persons. Whatever may be the form of an action at law, if the proof of such a contract is essential to maintain it, there can be no recovery.</p> <p>Defendant falsely represented that he had authority to act as agent for another, and in his assumed capacity made a parol contract for the leasing of a store to plaintiff for the term of two years, in consequence of which plaintiff incurred expense in procuring fixtures to fit up the store. Aeld, that inasmuch as the contract would have conferred no right upon plaintiff had defendant possessed the authority claimed, plaintiff was not injured by the representation, and could not maintain an action either upon the contract or in tort.</p>

This was an action brought by the plaintiff as the surviving member of the firm of Donnelly & Hyatt, upon a bond given by the defendants, to discharge an attachment against the goods of the defendant… Held: that the insolvent discharge obtained in South Carolina, was invalid as against the plaintiff; and that the affidavit upon which the attachment was granted was sufficient: to which the defendants excepted.

Appeals from judgments of the General Term of the Supreme Court in the third judicial department, affirming judgments in favor of the plaintiff, entered upon decisions of the court upon trial at circuit without a jury. These actions were brought on two policies of insurance for $1,000 each on a grist-mill and machinery.

<p> Attachment against vessels. </p> <p>The charterer of a vessel, who is designated as master, has power to contract a debt for materials, which will be a lien, under the statute (2 R. S. 492). In such case, it is sufficient, in ah application for an attachment, to aver that the debt was contracted by him, as “ master, owner or agent.”</p> <p>A steamboat, enrolled and licensed as a coasting vessel, is within the act j she is liable to be attached for a debt contracted in fitting her up for a floating theatre.</p>

This action was brought to restrain defendant from opening Herrick street, in the village of Greenbush, across the lands of plaintiff. The facts pertinent to the question discussed appear sufficiently in the opinion. The lands of railroads are so far private as to come within that clause of the Constitution prohibiting their condemnation without compensation.

- ■ . 1 , - • This action was brought for breach ' of covenant' óf quiet' ¡ enjoyment in a lease.. •• -• .......' , ' ......' Defendant leaséd tó'plaintiff for the term of three years, from May 1st, 1865, certain premises in the city of Hew York, known as the “ City Assémbly Rooms;” The lease contained the following condition: “And it is further agreed between the parties to these presents that in case the premises hereby leased shall be partially damaged by fire, but not…

Lawrence Bank, an insolvent banking association, had been affirmed. (Reported below, 8 Barb. 436.) The St. Lawrence Bank having become insolvent, its property was put into the hands of a receiver, and after a conversion of the same into money, a referee was appointed to ascertain, among other things, who were the creditors of the bank, the amounts due to them, respectively, and what sum each was entitled to receive out of the assets in the hands of the receiver.

(Beported below, 6 Bans., 1.) The will was dated May 25,1860. The testator died July 24,1871, and the will was admitted to probate September 25, 1871. Hiram Kellum, the appellant, filed allegations against said will under the provisions of the Statute of Wills (2 B. S., § 31). A hearing was had thereon on the 4th January, 1873. The questions raised were as to the due execution of the will; the facts pertaining thereto appear sufficiently in the opinion.

(Reported below, 7 Barb. 133.) This was an action of trespass against Witbeck, the supervisor of the town of Greenbush, and Sharp, the tax collector of the same town, for taking and carrying away certain personal property belonging to the plaintiff, William P. Van Rensselaer.

This action was brought to recover possession of two horse railroad cars and damages for the detention thereof. The cars were formerly the property of the Metropolitan Railroad Company. They were levied upon and sold to pay a tax assessed against the company. On the sale they were purchased by plaintiff’s testator. Defendants claimed title by virtue of the foreclosure of and sale under a mortgage given by the company upon its road. Other facts appear in the opinion.

(Reported below, 7 Barb. 91.) This was a bill in equity, filed in the late court of chancery, by Hannah Van Antwerp and others, to set aside a purchase under a municipal assessment, as a fraud upon the rights of the complainants, and to compel a surrender of the premises to David Burhans, their trustee.

The principal point upon which the motion to vacate the assessment was founded was as follows : “ The resolution and ordinance authorizing said work, and in pursuance of which said work was done and said assessment laid, and the report of the committee recommending the specific improvement authorized by said resolution and ordinance, were hot, nor were any, nor was either of them, published, as required by the charter of 1870; by section 1, of chap. 383, of the Laws of 1870;…

This was an action to recover three quarters’ rent, which accrued in 1847, upon a lease from the plaintiffs to the defendants, of the first floor and cellar of the store No. 230 Pearl street, in the city of New York. The rent reserved was $800 per annum, payable quarterly ; one quarters’ rent, it was admitted, had been paid to the plaintiffs.

This was an action upon five several policies of insurance against fire, underwritten by the defendants, upon five stores owned by the plaintiff, in the city of Brooklyn, forming a single‘block of buildings. *The stores insured by three of the policies _ were described as the plaintiff’s brick dwelling *- and store, not coped, with tin roof; those covered by the other two policies, as the plaintiff’s “ four story brick and framed dwelling and store, filled in with brick,…

Appeal by the United States from judgment 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, refusing to admit the will of Charles Fox to probate as a will of real estate. The following is the material clause in the will, the validity of which was in question: “ First.

This was a bill in equity, filed in the late court of chancery, for the foreclosure of a mortgage for $1400, gived by the defendants, Cook and wife, to Elisha Crawford, on the 4th September 1845, and subsequently assigned to the plaintiff.

<p>Under the provision of the act authorizing the town of Springport, Cayuga county, to subscribe for stock of the Cayuga Lake Railroad Company (§ 2, chap. 314, Laws of 1869), which makes an affidavit of a majority of the assessors of the town, to the effect that a majority of the tax-payers owning a majority of the taxable property had consented thereto, a condition precedent to issuing the bonds of the town, and makes the affidavit proof of such consent, the affidavit is in the nature of a judgment, and the proceedings of the assessors in arriving at their decision are reviewable upon certiorari.</p> <p>It appearing by the return of the assessors to a writ of cerMoratri that before the making of their affidavits revocations of the consent executed by the tax-payers who had before signed the consent were served upon the assessors, but were disregarded by the majority of them, who included in them computation the names and property of those thus revoking,—Held, that the consent in this case was analogous t,o the petition under the general act for bonding towns in aid of railroads, and that the signers had a right to withdraw and revoke their consent at any time prior to the making of the affidavit by the assessors. Also held, that this error could only be obviated by showing that had those revoking been excluded the requisite number still remained.</p>

This action was brought to recover a quarter’s rent of a building, Ho. 94 Chambers street, Hew York, leased by plaintiffs’ testator to defendants for two years from May 1st, 1868.

(Reported below, 10 Barb. 74.)1 This was an action of assumpsit, upon a special agreement of the defendants, that if the plaintiffs would buy of them 8900 boxes of damaged raisins, at $1.70 per box, to be paid for in cash, on delivery, deducting 3f per cent, for cash payment, the plaintiffs should have the benefit of, and be paid by the defendants, the amount of such return-duties as the government should allow to the defendants.

This action was brought to recover the purchase price of a bill of goods sold by plaintiffs to defendant. The goods were sold November 5, 1867. Defendants, who resided at Buffalo, on the eighteenth of November, inclosed to plaintiffs a draft at sight, upon James K. Place & Co., of New York, for the amount of the purchase.

(Reported below, 5 Sandf. 174.) This was an ejectment to recover possession of one undivided sixth part of certain lots of ground, in the city of New York, which the plaintiff, Ann Jennings, claimed as one of the heirs-at-law of her father, Joseph Jennings, who died seised thereof, in May 1850. The defendant, Mary Ann Jennings, the widow of Joseph Jennings, claimed title under the will of her deceased husband.

(Reported below, 4 Sandf. 67.) This was an action of trespass on the case, brought in the supreme court, against the defendant, as sheriff of New York, for not levying an execution in favor of the plaintiff against one Jacob Acker, for the sum of $500.49; for not returning the same, within sixty days; and for making a false return to the said writ. The defendant pleaded the general issue.

This action was brought to recover the purchase price of seventy bales of cotton alleged to have been sold by plaintiffs to defendants. On the 8d July, 1868, plaintiffs contracted to sell and defendants to purchase 119 bales of A. cotton, described by marks, at thirty-one and a quarter cents per pound, payable in cash on delivery. The sale was negotiated by cotton brokers, who acted for both parties, bought and sold notes were delivered.

(Reported below, on former trials, 3 Barb. 203, and 7 Id. 113.) This was an action of replevin for eighteen bales of wool, the property of the defendant, which had been taken by the plaintiff from the canal-boat William Henry, that had been sunk in the Hudson River, near. Coxsackie, a place where the tide ebbs and flows.

The board of supervisors declined to levy such tax, claiming that as, by section 5 of said' act, the tax was not to be levied if chapter 700 of the Laws of 1872, providingfor a submission to popular vote of the question of funding the debt for which the tax was to be levied, was approved by the people at the next general election, as therein provided,'and as such question had been submitted and approved, they were not required to levy the tax.

(Reported below, 10 Barb. 97.) This was an ejectment to recover the north half of lot No. 130, in George Scriber’s fish-pond, or location, in Constantia, in the county of Oswego. The defendant was in possession at the commencement of the action.

The action was brought to recover the amount of an alleged draft drawn by defendant. On the 1st July, 1857, defendant, a. banker at Clean, Cattaraugus county, sold to plaintiff, who resided in McKean county, Pa., a draft on Griggs & Lathrop, of Hew York, for $2,026.83, post dated July 10,1857. The draft was sent to the Exchange Bank at Hartford, Conn., and forwarded from there to the Metropolitan Bank of Hew York for collection.

This was an action of assumpsit against the defendant and one Mason, commission-merchants, in the city of New York, under the firm of Mason & Thompson, for money had and received to the plaintiff’s use. ¡!. *The defendant Thompson alone was served -* with process; and he appeared and pleaded to the merits.

This was a motion for a reargument with a view to correct the judgment and remittitur as to costs. The case is reported in 50 H. Y., 457. The facts appearing on the motion are stated in the opinion.

This action was for the foreclosure of a mortgage. Shepard F. Knapp, respondent on this appeal, as receiver of the Bowling Green Savings Bank, was the owner of the equity of redemption. Neither he nor the bank were originally made parties to the foreclosure; a judgment was perfected and under it the premises were bid off by Henry Welsh, appellant, who paid ten per cent of the purchase price.

This action was brought to recover the amount of certain bonds of the Florida Railroad Company, owned by plaintiff; he alleging that the trust deed securing the same had been destroyed by defendants without his consent, and a new trust deed given to secure other bonds, whereby plaintiff had lost his security, and that he was entitled to have his bonds paid out of the proceeds of the new loan.

This action was brought upon a promissory note, and defendants set up a counter-claim. After the commencement of the action, plaintiffs were adjudged bankrupts, and Albert Smith was appointed assignee of their estate. He continued the action in the name of the original plaintiffs.

The nature of the action and the facts presented appear sufficiently in the opinion. An action on the case in tort will lie for a false warranty in the sale of goods. (1 Chitty’s Pldgs., 137.) A compulsory reference will not be ordered where issues of fraud are made by the pleadings, even though the examination of a long account is involved. (Goodyear v. Brooks, 2 Abb. [N. S.], 296; Townsend v. Hendricks, 40 How.

Appeal by John Pitts, one of the defendants, from an order of the General Term of the Supreme Court in the first judicial department, affirming an order of Special Term denying a motion, on behalf of said John Pitts, to vacate an order hereinafter set forth. This was an action for the partition of certain real estate in which said John Pitts had an interest. A decree was entered directing a sale.

<p>Where a question arises as to whether a pleading has been made and served according to the law and the practice of the court, so as to become a part of the pleadings in the case, the proper practice is to present the question for determination by motion to strike it out in case it has been served, or to compel its acceptance in case of a refusal to receive it.</p> <p>It is not within the discretion of the court, instead- of determining such question when presented upon motion, to compel the parties to take or to await further proceedings in the case, at the peril of having them set aside in the former case, or, in the latter, of permitting a final judgment to stand.</p> <p>The right of a party to have such question determined upon motion, and the appealability of an order made thereon, is not affected by the fact the court has a discretion to impose terms upon granting or denying the motion.</p> <p>Accordingly, held, that an order of General Term, affirming an order of Special Term denying a motion to strike out an unverified answer to a verified complaint, was appealable to this court.</p> <p>The provision of section 157 of the Code, authorizing the omission of a verification of a pleading when an admission of the truth of the allegation might subject a party to a prosecution for a felony; also, the provision of the act of 1854 “ in relation to pleadings in courts of record,” (§ 1, chap. 75, Laws of 1854), which authorizes the omission of such verification where the party would be privileged from testifying as a witness as to the truth of any matter denied by such pleadings, are applicable only to cases where allegations coming within the exceptions are contained in the pleadings to be answered. They do not extend to cases Where new matter in avoidance, oi\where a counter-claim is set up, con-taming allegations accusing the pleader of a felony, or as to which he would he privileged from testifying.</p>

This action was brought upon a guaranty of an agreement made and executed by plaintiffs and one James Shaw. On March 8, 1864, the plaintiffs leased to Wm. H. Boggs and Peter EL Edmonston, Nos. 384 Greenwich street and 369 Washington street, in the city of New York, with the restrictive proviso that the lessees might rent the premises for storage for the first year of the term, but not longer.

The nature of the action, and the facts upon which the order of arrest was granted, appear sufficiently in the opinion. A party who receives money in a fiduciary capacity is liable to arrest upon, affidavits showing these facts, though he has given a check for the amount, if it is dishonored. (Shipman v. Shafer, 14 Abb., 449; 7 id., 81; 12 id., 476 ; 21 How., 462.) The complaint need not state the extrinsic grounds of arrest, nor need they appear in-the record.

The action was brought to recover penalties alleged to have been incurred by violation of the State pilotage act (chap. 407, Laws of 1853). The facts sufficiently appear in the opinion. Pilotage laws are regulations of navigation. (Gibbons v. Ogden, 9 Wheat., 1; Hobart v. Drogan, 10 Peters, 108; Norris v. City of Boston, 7 How. U. S., 317; Cooley v. Port Wardens, etc., 12 id., 317; New York v. Milne, 11 Peters, 158.) The power to regulate commerce is vested in congress.

<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 decision of the court upon trial, without a jury.</p> <p>This action was to recover for five barrels of whisky, alleged to have been sold to defendant, by the firm of H. & P. McGoldrick, of which plaintiff was a partner; the claim upon the dissolution of the firm was assigned to plaintiff.</p> <p>In September, 1867, one Roberts, who resided and kept a liquor store in Hempstead, L. I., where the defendant also resided and kept a liquor store, called on said firm of H. & P. McGoldrick, who were then doing business in Ho. 4 Flushing avenue, Brooklyn, as wholesale dealers in and rectifiers of spirits, and represented to them that he was authorized by the defendant to act as his agent, and that defendant wanted five barrels of whisky sent to him. The whisky was accordingly shipped by the Long Island Railroad Company, addressed to the defendant at his residence and place of business, Hempstead, L. I. The company received the goods and gave a receipt therefor, stating that it received the same from H. & P. McGoldrick, to be delivered to George Willets, at Hempstead Station, L. I. The barrels were marked “ From H. & P. McGoldrick, wholesale dealers in and rectifiers of spirits, 4 Flushing avenue, Brooklyn.” The defendant received them at' the depot of said company and paid the freight thereon, but did not notice the above trade-mark. A bill of said goods was mailed to the defendant at the time of delivery thereof to the defendant by the said railroad company, but he did not receive it.</p> <p>Prior to this, Roberts went to defendant’s store in Hemp-stead and told him he was running a distillery in Brooklyn, but for certain reasons did not do business in his own name, and that he wished to sell him some Avhisky, of which he showed him a sample in a small bottle. Roberts and defendant agreed .for the sale and delivery of five barrels of whisky, to be paid for on delivery. After the arrival of the whisky, Eoberts went again to defendant’s store, showed him an invoice of five barrels of whisky from “ Lewis & Co.,” and told him the goods were at the depot, and desired him to go and see if they were all right, as he wanted some money the following morning. The defendant went to the depot with Eoberts and found there the five barrels of whisky, addressed to him, which he received and took away, and on which he paid the freight, and paid Eoberts therefor. Eoberts dealt with the defendant in his own name, and represented the goods to belong to himself, and defendant paid him as aforesaid in good faith, believing that he was the owner thereof. Plaintiff called on defendant in reference to said goods and demanded payment; the defendant refused to pay, afid stated that he had bought them from Eoberts and paid him therefor; that he did not know anything about the plaintiff and did not buy any whisky from him. The whisky had been disposed of by defendant prior to demand. Eoberts had no authority to act as agent for either of the parties, and disappeared shortly after the sale.</p> <p>The court found that there was no sale and delivery, and directed judgment for defendant.</p> <p>E. had no authority from plaintiff to sell the goods, and defendant is liable for them: (Williams v. Merle, 11 Wend., 81; Saltus v. Everett, 20 id., 267; Hoffmann v. Carew, 22 id., 285; Andrews v. Dieterich, 14 id., 31; Ash v. Putnam, 1 Hill, 302; Covill v. Hill, 4 Den., 327; Caldwell v. Bartlett, 3 Duer, 341; Brown v. Peabody, 2 Abb., 211; Spaight v. Hawley, 39 N. Y., 441; Ballard v. Burgett, 40 id., 314; McNeil v. Tenth Nat. Bk., 46 id., 329; Robinson v. Dauchy, 3 Barb., 20.) Plaintiff could have sued defendant for conversion. (2 Greenl. Ev., 10th ed., 559; Cannah v. Hale, 23 Wend., 462; Cobb v. Dows, 9 Barb., 242; Boyce v. Brockway, 31 N. Y., 493.) Defendant is liable to plaintiff for the goods on an implied promise to pay for them. "(2 Greenl. Ev., 10th ed., 89-108; Lightly v. Clausson, 1 Taunt., 112; Hill v. Perrott, 3 id., 274; Foster v. Stewart, 2 Man. & Sel., 191; Young v. Marshall, 8 Bing., 43; Hill v. Davis, 3 N. H., 284; Webster v. Drinkwater, 5 Greenl., 275, and note; Butts v. Collins, 13 Wend., 154,155; Kingman v. Hotailing, 25 id., 422; Osborn v. Bell, 5 Den., 374; Camp v. Pulver, 5 Barb., 91; Roth v. Palmer, 27 id., 652; Chambers v. Lewis, 10 Abb., 206; Hinds v. Tweddle, 7 How. Pr., 278; Hawk v. Thorn, 54 Barb., 164; Wiegand v. Sickel, 3 Keyes, 120.)</p> <p>Plaintiff is estopped from asserting title to the goods as against defendant, because he enabled Roberts to perpetrate the fraud. (N. Y. and N. H. R. R. Co. v. Schuyler, 34 N. Y., 57; M. and T. Bk. v. Hazard, 30 id., 226; Brown v. Bowen, 30 id., 541; Carpenter v. Stillwell, 11 id., 73; Thompson v. Blanchard, 4 id., 303; Hill v. Snell, 6 Am. R., 218; Kingsley v. Vernon, 4 Sandf., 361; Pickard v. Sears, 6 Adol. & E., 469; Grigg v. Wells, 10 id., 90; Demeyer v. Souser, 6 Wend., 436; Martin v. Angell, 7 Barb., 410.) Plaintiff cannot maintain an action for goods sold and delivered. (Jones v. Hoar, 5 Pick., 285, and note; Allen v. Ford, 19 id., 217; Ladd v. Rogers, 11 Al., 209; Brown v. Holbrook, 4 Gray, 102; Willett v. Willett, 3 Watts [Pa.], 277; Henry v. Marvin, 3 E. D. S., 71; Harpending v. Shoemaker, 37 Barb., 276, 277, 291; Osborn v. Bell, 5 Den., 370; McKnight v. Dunlop, 4 Barb., 36; Bennett v. Francis, 3 Bos. & Pul., 554, 555.) Such an action can be maintained only where there is privity between plaintiff and defendant. (Hill v. Snell, 6 Am. R., 218; Jones v. Hoar, 5 Pick., 285, note; Roth v. Palmer, 27 Barb., 652; Kayer v. Sickel, 3 Keyes, 120; Walker v. Davis, 1 Gray, 508; Putnam v. Wise [note], 1 Hill, 240; Cummings v. Vorce, 3 id., 282; 1 Phil. on Ev., 110, 111, 7th ed; Hill v. Perott, 3 Taunt., 274.)</p>