Volume 70 — New York Reports

Rich, deceased. (Reported below, 10 Hun, 183.) The facts appear sufficiently in the oqunion. It is only upon the final accounting by executors or administrators, that a person will be permitted to appear and acquire a standing before the surrogate to contest the account. (2 R. S., 92, §§ 52, 60-65; Westervelt v. Gregg, 1 Barb. Ch., 469 ; Campbell v. Bowen, 1 Bradf., 224.) The appointment of the auditor was without authority. (2 R. S., 94, § 6; 1 Barb. Ch., 469; 1 Bradf., 224.

Roberts, as an insolvent debtor, to be exonerated and discharged from imprisonment. (Reported below, 10 Hun, 253.) The application was made under article 5, title 1, chapter 5, part 2 of the Revised Statutes. The petition was presented to, and an order to the creditors to show cause was granted by Justice Donohue, of the Supreme Court, residing hi the county of New York. The order was in the form of a Special Term order, and was made returnable September 2, 1876.

This action was brought to annul and set aside a judgment rendered in an action in the city court of Brooklyn, wherein defendant, Sarah Wood, was plaintiff, and the plaintiff herein was defendant. The defendant Perez alone appeared.

<p>Defendants contracted to purchase of plaintiffs 170 tons, more or less, of “ No. 1 wrought scrap iron,” 100 tons to arrive by ship “ Christopher; ” 103 tons of iron arrived by ship “St. Christopher j ” about eight tons were of a quality different from that stated in the contract. Defendants refused to receive the iron when tendered, the only objection raised being that they had purchased no iron on the St. Christopher.</p> <p>In an action upon the contract, held, that the objection raised was untenable ; and that defendants could not avail themselves of the objection that, of the iron on the vessel, there were eight tons which they were not bound to accept, as, if the refusal had been based upon that ground, the eight tons could have been separated, and a tender of the balance made, which would have been a substantial performance of the agreement.</p> <p>Upon refusal by the vendee to accept goods sold, when properly tendered, under and in pursuance of the contract of sale, the vendor has, at his election, the right to sell the goods on account of the vendee, and to hold him liable for the difference between the contract price and the price realized for the goods.</p> <p>Having so elected, and having notified the vendee, the vendor becomes the agent of the former for the purposes of the sale, and is bound to the exercise of good faith and reasonable diligence to effect a sale at the best price; and, it seems, is bound to obey any instructions given him by the vendee as to the time and manner of sale, which he can follow without sacrificing his lien under the contract; in the absence of such instruction, he has the right to exercise his own discretion within reasonable bounds.</p> <p>The judgment herein, which was entered upon the report of a referee, was reversed by the General Term; the order of reversal did not state that it was upon questions of fact. The referee found that, after refusal of defendants to accept the iron, and, within a reasonable time, plaintiffs sold the iron for the market price at time of sale; it appeared by the evidence that, immediately after defendant’s refusal to accept, plaintiffs notified them of their election to sell for account of defendants. A sale was made about five months thereafter. There was some evidence as to prior unsuccessful efforts to sell the iron. Held, that it did not appear that the conclusion reached by the referee was so wholly unsupported by evidence as to justify a holding that it was an error of law, for which the judgment should be reversed.</p> <p>Also held, that an exception to a refusal of the referee to decide that the rule of damages was the difference between the contract price and what the iron could be sold for within the shortest reasonable time after breach of the contract, could not be sustained; that all that was required was a sale within a reasonable time, and the sale could not be invalidated by proof that it might have been made sooner.'</p>

(Reported below, 5 Hun, 321.) This action, was brought to foreclose a mortgage given by Jacob H. Van Reed to Philo Plank, which was assigned by Mrs. Anna Plank, executrix of Philo Plank, to the plaintiffs, who are the trustees of the London Assurance Corporation.

Term of the Supreme Court in the third judicial department affirming an order of Special Term denying a motion for a peremptory mandamus.

This was an action for money alleged to have been paid and received by Charles C. Bacon, plaintiff’s intestate. The answer alleged in substance that all moneys or property which came into the hands of said intestate, belonging: to plaintiff, were transferred by the latter with intent to hinder, delay and defraud his creditors.

Ill, Laws of 1848. . The indictment contained five counts, charging the same offence. At the close of the evidence, on the part of the prosecution, the prisoner’s counsel requested that the prosecution be required to elect on which count they would rely. The motion was denied, and exception duly taken. The prosecutrix was permitted to testify, under objection and exception, that her father and mother were both dead, and to state.the time of their death respectively.

<p>Appeal from order of the General Term of the Supreme ' Court in the fourth judicial department, reversing a judgment in favor of defendants, entered upon the report of a referee, and granting a new trial.</p> <p>This action was brought to recover the sum of $10,000, alleged to have been paid, as the consideration for the transfer of certain letters patent.</p> <p>The complaint alleged, and the plaintiff’s evidence tended to show, that, on April 4th, 1872, she sold and assigned to defendants certain letters-patent for an invention and certain tools and machinery for the sum of $12,000, which sum was agreed to be paid by defendants as follows: $1,000 at the time of the sale, $1,000 in sixty days and $10,000 in one year therefrom; that the $2,000 were paid, but the residue was unpaid.</p> <p>Defendants’ evidence was to the effect that the agreement was, that the $10,000 was only to be paid out of profits which should arise out of a corporation which, at the time of the transfer, it was contemplated to organize, and that the corporation was organized, but no such profits in fact accrued.</p> <p>' Plaintiff’s husband, under a power of attorney, executed an assignment, under seal, of the letters patent, the consideration therein expressed being the sum of $12,000 “in hand paid, the receipt whereof is hereby acknowledged.”</p> <p>Defendants’ counsel offered in evidence another assignment, under seal, executed by Mr. Hebbard, bearing the same date as the first, but executed in July thereafter, in which it was stated that said sum of $10,000 was to be paid “ out of the first profits of the business of a certain corporation to be organized ” by defendants. This was objected to by plaintiff’s counsel, on the ground, among others, that, at the time the paper'was executed, it did not appear that Mr. Hebbard was authorized to act for plaintiff. The objection was overruled, and said counsel duly excepted. The referee found the facts' substantially as claimed by defendants.</p> <p>The conclusions of law of the referee were as follows:</p> <p>. 1. The leading issue of fact upon the trial being, whether</p> <p>under the contract made on or about the 4th day of April, 1872, the defendants promised to pay the said $10,000 absolutely within one year, as claimed by the plaintiff, or whether it was payable out of the profits of the corporation, as claimed by the defendants. I hold and decide that the onus probandi was on the plaintiff to establish that said $10,000 was payable absolutely.</p> <p>2. That to establish this fact it was necessary that the evidence should produce a reliable conviction of its truth; that the proof to support it must be full and satisfactory; that a mere balance or preponderance of evidence, which was not sufficient to produce a reliable conviction, which was not. full and satisfactory, was not sufficient to establish it.</p> <p>3. That the said poiver of attorney was sufficient for the said Ira A. Hebbard to make the agreement and assignment of July 29th, 1872, irrespective of the question, whether under the contract of April 4th, 1872, the said $10,000 was payable absolutely or contingently out of profits.</p> <p>4. The defendants are entitled to judgment against the plaintiff.</p> <p>Judgment was entered accordingly.</p> <p>The onus of proving the deed valid and subsisting at the trial rested upon plaintiff. (Powers v. Ware, 2 Pick., 451; 2 Pars, on Con., 721.) A subsequently executed subsisting agreement could not at the trial be engrafted on a prior cancelled instrument, the latter being the basis of an action at law. (47 Mo., 425-431) Parol proof was competent to explain the clause acknowledging the receipt of the consideration. (McCrea v Peermort, 16 Wend., 460; Wadsworth v. Alcott, 6 N. Y., 64-71; Battle v. Roch. City Bk., 3 id., 88; Grierson v. Mason, 60 id., 397.) A general agent has authority to rescind a contract or to modify, limit or enlarge its terms. (Anderson v. Cooley, 21 Wend., 278; Standard Oil Co. v. Triumph Ins. Co., 6 T. & C., 300—303; 3 Hun, 591; 106 Eng. C. L., 820; Cornell v. Master, 35 Barb., 158-161; Am. C. Iron Co. v. Eisner, 7 J, & S., 200; Jackson v. Andrews, 59 N. Y., 244, 247; Waring v. Smyth, 2 Barb. Ch., 119-127; Scott v. Wells, 6 W. & S., 357-368; Taylor v. Nussbaum, 2 Duer, 309; Martin v. Farnsworth, 49 N. Y., 558; Goodrich v. Thompson, 44 id., 324; Pres’t etc., v. Corner, 37 id., 320; Leland v. Douglas, 1 Wend., 490; Edmunds v. Bushnell, 35 L. J. Q. B., 20; 1 id., 97; Story on Agency, § 73; N. R. Bk. v. Aymar, 3 Hill, 262.) Upon the principle of estoppel, plaintiff cannot claim in opposition to her deed. (Kent v. Harcourt, 33 Barb., 491-497; Cramer v. Benton, 64 id., 524.)</p> <p>The referee erred in deciding that the onus was on plaintiff to show that the $10,000 was payable absolutely. (2 E. D. S., 541; 5 N. Y., 41; 1 Starkie on Ev., 452; id., 418; Hollister v. Bender, 1 Hill, 150; Sheldon v. H. R. R. R. Co., 29 Barb., 226; 9 Gray, 390; 1 Greenl. on Ev., § 74; Heinemann v. Heard, 62 N. Y., 44; Best’s Principle of Law of Ev., § 269; Finch. v. Parker, 49 N. Y., 8.) The acts and declarations of the plaintiff’s attorney, subsequent to April-4th, 1872, were not res gestee, and not competent to be given m evidence by defendants, or for them to give evidence which tended to vary the terms of the first assignment. (16 Wend., 460; 1 id., 424; 1 Greenl. Ev., 361-321; Filkins v. Whyland, 24 N. Y., 338; Blossom v. Griffin, 13 id., 569; Gridley v. Dole, 4 id., 486; Sturtevant v. Sturtevant, 20 id., 39; Halliday v. Hart, 30 id., 479; Norton v. Coons, 6 id., 33; Coon v. Knap, 8 id., 402; Brandon Manuf. Co. v. Morse, 48 Vt.; Egleston v. Knickerbocker, 6 Barb., 458; Dart on Vendors, 451, and notes; Houstin v. Schindler, 11 Barb., 36; White v. Parker, 8 id., 48, 69; Ensign v. Webster, 1 J. Cas., 145; Kellogg v. Richards, 14 Wend., 116; 14 J. R., 210; 20 id., 338; 12 id., 529; Dempsey v. Kip, 61 N. Y., 471; Thorp v. Keokuk Coal Co., 48 id., 253; Thalheimer v. Brinckerhoff, 4 Wend., 394; Luby v. H. R. R. R. Co., 17 N. Y., 131; Anderson v. R., W. & O. R. R. Co., 54 id., 334; Budlong v. Van Nosirand, 24 Barb., 25.)</p>

(Reported below, 9 Hun, 148.) This action was brought for the foreclosure of a mortgage. By the terms of the bond to secure the payment of which the mortgage was given, the principal became due May 1st, 1874, interest was to be paid semi-annually, and in case of default in the payment of an installment of interest for twenty days, then the principal should, at the option of the obligee or his assigns, become due and payable.

(Eeported below, 7 J. & L., 389.) This action was brought to recover damages fór the.alleged unlawful conversion of certain railroad bonds. In 1857, William Smith and. James W. Smith were the owners of ten bonds of the Peoria and Oquawka railroad company of $1,000 each, secured by the first mortgage upon the railroad and property of that company. The bonds were coupon bonds, payable to the bearer.

This action was brought upon a policy of life insurance issued by defendant November 2, 1871, upon the life of Birt Cushman, plaintiff’s intestate. The defence was a breach of warranty. The case upon a former appeal is reported in 63 N. Y., 404. The evidence as far as material is stated in the opinion.

(Reported below, 9 Hun, 246.) This action was brought to obtain a construction of the will of John McLean, deceased. The testator, after various bequests, gave and devised to his son, John S. McLean, one-fourth part of all his remaining real and personal estate, and to his daughter, Mary J. Halsted, one other fourth part.

<p>In an action against a master for an injury to a servant while in the master’s employment, alleged to have been caused by the negligence of the latter, the test of liability is not whether the master omitted to do something which he could have done, and which would have prevented the injury, but whether he did anything which, under the circumstances, in .the exercise of ordinary care and prudence he ought not to have done, or omitted any precaution which a prudent and careful man would or ought to have taken.</p> <p>Accordingly held, where in such an action it appeared that the servant was killed by the fall of an overhanging portion of bank of earth, which was being excavated under the direction of the master, that it was error to charge the jury to the effect that if defendant could have done anything which would have prevented the accident, his omission so to-do was negligence.</p> <p>The portion of the bank which fell was cut away by other men in defendant’s employ. Plaintiff’s evidence tended to show that just prior to its-fall, defendant stated that he would not cut it away for half an hour, and that relying on this the deceased, and other workmen continued to work under it. The court submitted it to the jury to find whether this-promise was made, remarking that it was a very important feature of the case. Defendant’s counsel thereafter requested the court to charge that if notwithstanding such promise was made, the deceased saw the men at work cutting down the bank, plaintiff could not recover on the theory that the deceased had no warning that the work was going on. The court refused so to charge. Held, error.</p>

The facts sufficiently appear in the opinion. The order of discontinuance should have provided for ascertaining the amount and ■ for payment of the claim of plaintiff’s attorney for services. (Welsh v. Hole, 1 Doug., 238; Reed v. Duffer, 6 T. R., 361.

The facts appear sufficiently in the opinion. Notice of the existence •of a paper carries with it notice of its contents, terms and •conditions. (Phillips v. Miller, L. R., 9 C. T., 196; 8 Eng.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, reversing an order of Special Term referring this action. (Reported below, 10 Hun, 304.)</p> <p>This action was upon an account for professional services rendered by plaintiff as attorney for defendant. The order of reference was granted upon an affidavit that the trial would involve the examination of a long account.</p> <p>Where a case does not show that the General Term exercised its discretion on. the merits exclusively, but based its decision on a question of power or law, an appeal will lie to this court. (Eq. L. Ins. Soc. v. Stevens, 63 N. Y., 343; Han. Ins. Co. v. Tomlinson, 58 id., 216; Tilton v. Beecher, 59 id., 176; Howell v. Niells, 53 id., 331; Campbell v. Seaman, 63 id., 582; De Leamosas v. De Leamosas, 62 id., 619; Lefler v. Field, 52 id., 622; Holyoke v. Adams, 59 id., 231; White v. McLean, 57 id., 671; Mayer v. Cullen, 54 id., 397.) The action was referable. (Welsh v. Darragh, 52 N. Y., 592.)</p> <p>The discretion of the-General Term having been exercised in reversing the order of reference, its action was final. (Godfrey v. Ins. Co., 12 Abb. [N. S.], 250; Goodyear v. Brooks, 2 id., 276; 4 Robt., 682; Wheeler v. Falconer, 7 id., 45; Livermore v. Bainbridge,. 56 N. Y., 72; Han. Ins. Co. v. Tomlinson, 58 id., 215; Welsh v. Darragh, 52 id., 592.) The order of reversal was right. (Evans v. Kalbfleisch, 16 Abb. [N. S.], 13.) It was the right and duty of the General Term to review and correct the exercise by the Special Term of its discretion in making the order of reference. (Goodyear v. Brooks, 2 Abb.. [N. S.], 304; Godfrey v. Williamsburgh F. Ins Co., 12 id.,. 250.)</p>

<p>The anchoring of a vessel in an unsafe and improper place is a negligent act, and if she is run into and injured by another vessel, or if persons in charge of her are injured, and the improper anchorage was a proximate cause of the injury, no action lies against the owner of the colliding vessel.</p> <p>In the absence however of a statutory or other regulation on the subject the court cannot 'determine, as a question of law, that a particular place of anchorage is unsafe and improper, but it is a question of fact for the jury.</p> <p>The anchoring of a sailboat in New York harbor with a light set, on a night not dark, and when a light can be seen for miles, at a place known by those in charge to be in the customary track of a ferry-boat, is not negligence per se.</p> <p>The regulation of the harbor masters of New York harbor providing that no vessel shall anchor within certain prescribed limits does not apply to small sail or row boats.</p> <p>So also, the provision of the Revised Statutes (1 R. S , 685, § 12), requiring the master of a vessel at anchor in the night time to cause a light to be shown in her rigging, at least twenty feet above her deck and from her taffrail, does not apply to a small open undecked sailboat, having no rigging twenty feet above the place where a deck would be, if it had one.</p> <p>It seems that a non-compliance by a vessel at the time of a collision with statutory, or' other regulations prescribed by competent authority intended to prevent collision, is prima fade evidence of negligence, and it is a reasonable presumption that it was a contributory cause of the disaster.</p>

(Reported below, 6 Hun, 320.) , This action was brought to recover damages for injuries by fire to the lands of Patrick Hays, plaintiffs’ intestate, alleged to have been caused by the negligence of defendant. The facts as found by the referee in his report, were substantially as follows: .

This action was brought to recover damages for the death of Christopher B. Cordell, plaintiff’s intestate,, alleged to have been caused by defendant’s negligence. The case is reported upon a former appeal in 64 N. Y., 535. The deceased was struck and killed by a locomotive, attached to a train upon defendant’s road, while attempting to cross its tracks at a place where there was a farm crossing.

<p>The duty of keeping in repair fire-escapes attached to a tenement-house, imposed by the charter of the city of Brooklyn of 1863 (§ 36, title 13, chap. 863. Laws of 1863), is devolved upon the owner; and in the absence of a special agreement between him and a tenant occupying a room in the building, to the window of which a fire-escape is attached, as between the landlord and tenant, it is the duty of the former to keep it in repair. It is not within the range of ordinary repairs which a tenant, in the absence of an agreement to the contrary, is required to make.</p> <p>The owner, however, owes no duty in such case to the tenant or his family to keep the platform of the fire-escape communicating with the window in such repair that it may be used as a balcony; and when it bears no indication that it was designed to be so used, and is not so guarded as to make it safe for young children, if a child, without license or permission from the owner, passes out of the window upon the platform and is injured in consequence of its being out of repair, the owner is not liable.</p> <p>Such a case does not come within the rule requiring a party to protect a structure on his own premises which is dangerous to others.</p>

Appeal by Richard H. Buel, purchaser, from an order of the General Term of the Supreme Court, in the second judicial department, affirming an order of Special Term, directing said purchaser to complete his purchase made at a sale under judgment herein. This was ail action of partition. The premises in question being a farm, situated in the city of Brooklyn, and formerly owned by William Lefferts, deceased.

(Reported below, 7 Hun, 81.) This action was brought by plaintiffs as executors of the last will and testament of David Provost, deceased, to obtain a construction of said will. The clauses of the will in question, are as follows: “II.

Tins was an action for waste. It was originally brought by Simeon B. Robinson, plaintiff’s testator, who died after judgment. The premises in question were part of lot twenty-three, in the town of Fayette, Seneca county. The facts, so far as material to the questions discussed, appear sufficiently in the opinion. An action for waste cannot be maintained against defendant.

(Reported below, 4 Hun, 123.) The record contained no case or exceptions, but simply the judgment roll with notice of appeal to this court and copies of opinions.

<p>Under the provision of the act of 1861, relating to contracts by the corporation of the city of New York (§ 1, chap. 308, Laws Of 1861), substituting the comptroller, counsel to the corporation and recorder of said city a Board of Revision and Correction of assessments for local improvements in place of the common council, and devolving upon the new board the power and authority then vested in the common council in reference to such assessments, the said board had the same authority as was conferred upon the common council by the act of 1859, relating to taxes and assessments in said city (§ 17, chap. 302, Laws of 1S59), to refer back the assessment-lists to the board of assessors for revisal and correction ; and in case of such reference the provision of said act of 1861, providing that if the assessment-lists shall not be confirmed within thirty days by said Board of Revision and Correction, they shall be deemed to be confirmed, does not apply; after they are referred back they cannot be confirmed in any way until they are again certified and presented to the board for confirmation.</p> <p>The thirty days’ limitation contained in the act of 1861, was not repealed by the provisions of the act of 1872 (chap. 580, Laws of 1872), defining the powers of said Board of Revision and Correction.</p> <p>In May, 1871, T., plaintiff’s intestate, contracted to do certain work upon a street of said city. The contract referred to and made a part thereof a city ordinance regulating the mode of making payments for work done under such contracts, which provided that the final payment should not be made until the assessment for the work shall have been confirmed. The work was completed by T. in December, 1872; in March, 1874, the board of assessors completed the assessment-lists, and presented them to the Board of Revision and Correction, by whom they were returned for revision and correction. The lists had not been corrected or again presented to the board for confirmation when this action, which was brought to recover the final payment, was commenced.</p> <p>Held, that the action was prematurely brought, and plaintiff was not entitled to recover; that it was immaterial whether said Board of Revision and Correction acted legally or illegally in refusing to confirm and in returning the assessment-lists; they not having been again certified to the board, were not confirmed.</p> <p>The ordinance referred to and made part of the contract was passed prior to the passage of the act of 1861, and provided for a confirmation “ by the common council.” Held, that the condition as to confirmation was not rendered inoperative by the fact that when the contract was made the common council could not confirm; that the words, “by the common council,” in the ordinance were made inoperative by the act of 1861, and as the parties contracted with reference to that act, the ordinance and the contract are to be read as if these words were stricken out; and the condition required a confirmation by competent authority.</p> <p>Also held, that in the discharge of their duty the Board of Revision and Correction were independent public officers, acting not for the peculiar benefit of the corporation, but for the public good, in obedience to the mandate of the Legislature; and that therefore the city corporation was not responsible for negligence or omission on their part in the discharge of their duties, and so was not liable because of a failure to confirm the assessment.</p>

(Reported below, 9 Hun, 45.) This action was brought upon a policy of fire insurance issued by defendant to Emily Adams and by her assigned to plaintiff’s testator, after loss, and service of notice and proof thereof. The policy contained a clause providing that, if the premises insured should become vacant or unoccupied and so remain for more than thirty days without notice to and consent of the company in writing, the policy should be void.

of the Supreme Court in the fourth judicial department affirming a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 9 Hun., 457.) This action was brought to recover damages for the alleged negligent killing of John Besel, plaintiff’s intestate. The facts appear sufficiently in the opinion. Plaintiff having failed to show any personal negligence on the part of defendant, the motion for a nonsuit should have been granted.

The nature of the action and the facts are sufficiently set forth in the opinion. The case should have been submitted to the jury. (Master v. Deyo, 2 Wend., 424; Foshay v. Furgeson, 6 Barb., 33; Bacon v. Town, 4 Cush., 218; Basson v. Southard, 10 N. Y., 240; Heyne v. Blair, 62 id., 19, 23.) The court was correct in directing a verdict for plaintiff. (7 Wend., 160.)

(Reported below, 6 Hun, 562.) This action was brought to recover for the alleged conversion of a quantity of wheat. In the spring of 1871 James H. Reeder, Lyman Reeder and James M. Reeder agreed, by parol, with one Tut-hill to lease of him a farm in Yates county for two years from April 1st, 1871, at an annual rental of $500, the lessees' to have the privilege of sowing and reaping two crops of wheat. There was a crop of wheat in at the time, which was reserved by the lessor.

The petition set forth that the petitioning corporation required two parcels of land belonging to Mrs. Rau.

The nature of the action and the facts are set forth sufficiently in the opinion. The evidence being undisputed the question of contributory negligence was one of law. (Morrison v. Erie R. R. Co., 56 N. Y., 302; Mitchell v. N. Y. C. R. R. Co., 64 id. 665.) Defendant as lessee of the Athens road stood in the shoes of its lessor, the owner. (Ditchell v. S. D. & P. M. R. R. Co., 3 Wkly. Dig., 506.) Evidence was properly received as to the wages earned by the deceased.

(Reported below, 9 Hun, 429.) This action was brought by plaintiffs as administrators of the estate of M. C. Bigelow, to recover damages for an alleged breach of the following condition : “Attica, January 23, 1865. “ Know all men by these presents, that I, Charles B. Benedict, for and in consideration of the sum of two hundred and fifty dollars, ’good and lawful money of the United States, to me in hand paid, the receipt of which is hereby acknowledged, do agree to receive…

<p>Appeal from 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 was an action of trespass for the alleged unlawful taking and converting a quantity .of household furniture. Plaintiff gave evidence tending to show that she was the owner and in the possession of the premises where the property was at the time of the taking; that the said property was left with her in pledge by Abby P. Stowell, former tenant, to secure a balance of a rent unpaid. Defendant justified the taking, as sheriff of Kings county, under a requisition in an action for the claim and delivery of said property brought by said Abby P. Stowell against Austin W. Otis, plaintiff’s husband. It appeared that in said action the defendant set up in his answer, the title of his wife to the property and possession in her. A verdict was rendered therein in favor of defendant, and judgment ivas perfected thereon, adjudging that said defendant was entitled to a return of the property or its value.</p> <p>Defendants having acted strictly within the mandate of the process were not trespassers. (Code, §§ 209, 211, 216; Shipman v. Clark, 4 Den., 446; Foster v. Pettibone, 20 Barb., 350; Bullis v Montgomery, 50 N. Y., 355; 1 Wait’s Pr., 738-9.) Plaintiff’s remedy was not against defendants. (Edgerton v. Ross, 6 Abb., 189; McCann v. Thompson, 13 How., 380; 50 N. Y., 355; 4 Den., 446; Aldrich v. Ketcham, 3 E. D. S., 577.) The property, ever since its taking under the replevin process, has been in the custody of the law, and could not be the subject of an action. (McKenzie v. Smith, 27 How., 20-25; Manley v. Patterson, 3 Code R., 89; Crocker on Sheriffs [2d ed.], §§ 449, 446, 472.) The sheriff cannot be made liable until the bond in the replevin suit is exhausted and every remedy under the former judgment has failed, if he may be so even then. (Kent v. Hud. R. R. R. Co., 22 Barb., 278; Doty v. Brown, 4 N. Y., 71; Green v. Clark, 5 Den., 497; King v. Chase, 15 N. H., 9; Parkhurst v. Sumner, 23 Vt., 538; Castle v. Noyes, 14 N. Y., 329; 1 Greenl. Ev., §§ 189, 523; Dexter v. Broat, 16 Barb., 337.)</p> <p>Defendants having been guilty of a conversion, could not shield themselves behind the writ in the replevin suit. (Bullis v. Montgomery, 50 N. Y., 356; Wilkins v. Earle, 44 id., 192; King v. Orsee, 4 Duer, 436; Porter v. Magrath, 41 N. Y. Supr. Ct., 101.) Defendants could not set up the replevin suit as an estoppel. (Ingraham v. Hammond, 1 Hill, 353; Mc Knight v. Dunlop, 5 N. Y., 544; Willoughby v. Bachouse, 4 D. & R., 539; Heane v. Rogers, 9 B. & C., 577; Christianson v. Sinfard, 19 Abb., 221; Brewster v. Silence, 38 N. Y., 428; Hamner v. Wilsey, 17 Wend., 93; Otis v. Jones, 21 id., 396; Higgins v. Whitney, 24 id., 380; Vosburgh v. Welsh, 11 J. R., 176.)</p>

Appeals from judgments - of the General Term of the Supreme Court in the fourth judicial department affirming jndgments in favor of defendant, entered upon the reports of a referee. These were references under the statute, of claims presented by the. plaintiffs respectively 'against defendant as executor of the estate of Robert J. Curry, father of plaintiffs. The facts and questions presented were alike in both cases and are sufficiently set forth in the opinion.

The said corporation was organized under the act chapter 917, Laws of 1869, by the consolidation of several railroad corporations, one of which was a domestic corporation. A member of a corporation has, by the common law, the right to an inspection of the books of the corporation for the purpose of establishing or maintaining his rights. (Rex v. Shelley, 3 Tenn.

This action was brought against defendant, a foreign corporation, to recover for services rendered under a contract between the parties, and also damages for a breach of the contract on the part of defendant. The nature of the contract and the facts in relation thereto are set forth in the opinion. The summons in the action was served upon one of defendant's directors who was temporarily within this state on business of his own.

The proceedings were originally instituted by Silas H.' Witherbee, Jonathan G. Witherbee and Friend P. Fletcher, •composing the firm of Witherbee & Fletcher as relators. After the return to the alternative writ, Jonathan Gf. Wither-. bee and Fletcher died. The alternative writ set forth that the petitioners presented to the board of supervisors of Essex county a petition which was set forth and incorporated in the writ.

<p>A contract netween a commission merchant and a dealer in produce, by which the former agrees to advance money at the legal rate of interest to enable the dealer to purchase or carry his produce, and is also to receive a percentage upon the money advanced as a commission for the care, management and sale of the property, is not per se usurious; the onus is upon the party seeking to impeach the transaction to show a guilty intent and that the contract was a cover for usury.</p> <p>"Where, therefore, it does not appear that the commission charged was unusual, or unreasonable, or in any way that the lender took advantage of the necessities of the borrower, a finding of a referee that such a contract is usurious, is unsupported by the evidence and is a legal error. The fact that the borrower in fact takes charge of and manages the pro- . duce purchased by him, does nojt affect the nature of the contract.</p>

(Memorandum of decision below, 5 Hun, 177.) This action was brought to recover the value of certain alleged permanent improvements erected by Francis Farrell, plaintiff’s assignor, upon certain premises then owned by defendant. Defendant, in May, 1869, leased to said Farrell the premises in question for the term of ten years.

(Reported below, 8 J. & S., 262.) This action was brought by plaintiff as receiver of the property of Amanda M. Senior, appointed in supplementary proceedings upon a judgment recovered by one Ross against her, to have an assignment of a bond and mortgage, made by her to defendant, declared void, as fraudulent as against her creditors. The answer alleged that the bond and mortgage in question belonged to the estate of Edward II.

(Reported below. 7 Hun, 25.) The nature of the action and the facts are set forth sufficiently in the opinion. The verity of a record cannot be questioned by parol evidence, or controverted or inquired into in a collateral action. (3 Thomas Coke on Lit., 323; Brown v. Nichols, 42 N. Y., 26; Denton v. Noyes, 6 J. R., 296; Hamilton v. Wright, 37 N. Y., 502; Ray v. Rowley, 4 N. Y. S. C., 43.)

The nature of the action and the facts are set forth sufficiently in the opinion. The beneficiary has no title or interest in the principal or income of the trust estate, and it could not be reached by his creditors.

The nature of the action and the facts sufficiently appear in the opinion. The referee erred in receiving secondary evidence to prove the drafts. (Blade v. Noland, 12 Wend., 173; Livingston v. Rogers, 2 J. Cas., 488; 2 C. & H., notes, 1216-1233; note 860; 1 Phil.

<p>Provisions regulating the granting of licenses for the sale of intoxicating liquors, and the suing for penalties for selling without a license, in an act the subject of which, as expressed in its title, is the reorganization of a village, are not violative of the constitutional provision (art. 3, § 16) requiring that a private or local bill shall embrace but one subject, which shall be expressed in the title ; such provisions relate to police regulations which are embraced in the organization or reorganization of a village.</p> <p>A provision in a village charter providing for submission of the question of license or no license to a vote of the electors is not unconstitutional; that question' relates to a local regulation which it is competent for the Legislature to submit to the people of the district.</p> <p>Where, by a village charter passed after the passage of the general excise law of 1857 (chap. 628, Laws of 1857), it is provided that actions to recover penalties for the violation of the excise laws in said village shall be brought in the corporate name of the village, such provision takes the case of the village out of the operation of the general law, and is not affected by the amendment to the latter of 1873 (chap. 820, Laws of 1873), vesting the power of suing for penalties in the overseers of the poor of the county, which, by the general act, was given to the board of commissioners of excise.</p> <p>Such special charter provisions in reference to the granting of licenses and the suing for penalties were not abrogated by the excise láw of 1874 (chap. 444, Laws of 1874).</p> <p>A license granted by the town board against the vote of the electors of a village whose charter thus provides for the submission of the question of granting licenses to them is no protection to one selling within the corporate limits. (Church, Ch. J., dissenting.)</p>

(Mem. of decision below, 6 Hun, 538). The nature of the action and the facts are set forth sufficiently in the opinion. As there was nothing in the notes charging defendant’s separate estate, they could not be enforced against her. (Yale v. Dederer, 18 N. Y., 265.) It will not be presumed that these notes were for the benefit of defendant’s business or estate. (Second Nat. Bank of Watkins v. Miller, 63 N. Y., 639; Man.

This action was for trespass upon lands. The complaint alleged title to, and possession of, the locus in quo in plaintiff.

This was an action of ejectment to recover possession of certain “ water lots ” in the city of New York, on the west side, said lots being partly what is known as the “ tide-way, i. e. land lying between high and low water marks, and partly land below low water mark. Both parties claim under grants from the city.

606, Laws of 1875). (Mem. of decision below, 7 Hun, 239). It was set forth in the petition upon which the commissioners were appointed, in substance, that the petitioner, the Hew York Elevated Railroad Company, was a corporation duly organized under the laws of this State; that under the Rapid-Transit Act, five commissioners appointed by the Mayor of the city of Hew York, had determined upon the necessity of a steam railway in that city, and had authorized the petitioners to…

<p>Richard Stuyvesant and many others, property-owners, appeared in the supreme court to oppose the pro ceedings in the matter of the petition of the ¡New Tori: Elevated Railroad Company. The proceedings were' taken by that company to obtain the necessary sanction under the rapid transit act for the construction of' their road through the Bowery and Third avenue in the-city of New York. The commissioners appointed by the mayor under section 1 of the rapid transit act laid out the route through those streets; and as the-company failed to obtain the consent of the owners of one half, in value, of the property abutting on the-streets, they applied to the supreme court and. obtained, in December, 1875, an order appointing supreme court commissioners under section 4 of the same act to determine whether the road should be built without such consent of property-owners. In March the commissioners reported favorably, and an order confirming their report was made in April, 1876.</p> <p>The supreme court held that the constitutional amendment does not prevent the legislature from making local exceptions in general laws, and if it did, the exception only would be a nullity. That under the rapid transit act, any property in the streets and highways not owned by the public must be compensated for, but that highways acquired under the act of 1813 belonged solely to the public, and the legislature could authorize them to be used for a railroad without compensation. That compensation for individual property was fully secured by the act, and that the proceedings of the commissioners were regular (Reported briefly in 7 Hun, 239).</p> <p>From this order Stuyvesant and others appealed.</p> <p>Further facts material to this appeal may best be gained, without repetition here, by referring to the statement of them given by the learned judge at page» 409 to 413, below.</p>

These were appeals, the one on the part of Catharine M. Kobbc, the other on the part of Edward H. Anderson et al., from an order of the General Term of the Supreme Court, in the first judicial department, appointing commissioners to appraise damages in proceedings to condemn lands for the purposes of the road of the petitioner. (Reported below, 9 Hun, 303.) The facts sufficiently appear in the opinion.

This action is brought upon two contracts executed by defendant, the one dated June 11th, the other July 6th, 1868. The nature of the contracts and the facts appear sufficiently in the opinion. Defendant by the two original contracts of April 24 and April 28, 1866, purchased an interest in the patent as it then was, after application for re-issue had been made absolutely and unconditionally.

(Reported below, 7 Hun, 439.) This action was brought by plaintiff as executrix of Andrew Alexander, deceased, upon a promissory note against defendant, Philip Butcher, Jr., as maker, and the other defendants as indorsers. Said defendant, Philip Butcher, Jr., answered separately, pleading usury and payment; the other defendants answered, jointly, setting up the same defenses.

The will- was dated July 11th, 1874. The facts appear sufficiently in the opinion. The fact that the witnesses to the will were named therein as executors rendered them incompetent. (2 R. S., 65, § 50; Robertson v. Cain, 5 N. Y., 125; Converce v. Wooley, I Abb. Ct. of App. Dec., 441; Burritt v Silliman, 13 N. Y., 93; 16 Barb., 198; McDonough v, Loughlin, 20 id., 238.) The proof offered by the appellant to establish the will of February 8, 1872, was improperly excluded.

(Reported below, 8 J. & S., 512.) This action was brought against the defendant as president of the Adams Express Company to recover the value of a package of watches and watch keys, delivered to that company at New York, consigned to J. E. Merriman & Co., Memphis.

(Reported below, 9 Hun, 532.) This was an action of trespass for entering upon certain land in Cortland county, and in cutting and carrying away therefrom a quantity of wheat. The action was originally brought by Ethan A. Pierce, plaintiff’s intestate, who sowed the wheat so taken.

This action was brought by plaintiff as owner of the barque John Campbell, against defendant, sheriff of the city and county of New York, to recover damages for unlawfully taking and removing from said vessel a quantity of flour, and for detention of the vessel. The sheriff sought to justify by virtue of certain warrants of attachment against the shipper of the flour to whom bills of lading had been delivered. The flour was shipped to Hamburgh.

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order denying a motion for a new trial and directing judgment on a nonsuit. (Reported below, 9 Hun, 408.)</p> <p>The case, upon a former appeal, is reported in 65 DT. Y., 322.</p> <p>This action ivas brought by plaintiffs as commissioners of highways of the town of Brighton, in the county of Monroe, to recover of the defendant, as commissioner of highways of the town of Penfield, in the same county, one-half of the expense of building a bridge across Irondequoit creek, which separates the two towns.'</p> <p>The commissioners of Penfield refused to unite in erecting the bridge across said stream, or to contribute to the expense or recognize any liability of his town to aid in the construction of a bridge across said stream. The plaintiffs had taken all the steps required to be taken by chapter 225 of the Laws of 1841, as amended by chapter 383 of the Laws of 1857, in order to compel the town ot Penfield to pay its proportion of the cost of erecting the bridge, if it was legally liable to contribute to pay the expense thereof.</p> <p>In 1858, a highway was duly laid out by the commissioners of the town of Penfield, from a highway in said town, known as the old Dugway road, to the center of Irondequoit creek. Part of this road was opened and worked, but for a distance of 200 feet, easterly from the creek, the road as laid out ran over a marsh, which is overflowed to the depth of several feet in high water, so that it could not be traveled over by teams except in the dryest weather, it was never used as a highway, and it did not appear that teams ever did or could pass over it. No work was ever done upon this marsh. It was proved that the road had been opened and partially worked from the old Dugway road, the place of the commencement of the road in question, to the eastern margin of the marsh in Penfield.</p> <p>In 1858, a road was laid out in the town of Brighton, extending from “ Cousins,” so called, to the center of said creek, at the terminus of the above mentioned road in Pen-field. This road ran for a part of the distance over a marsh. The commissioners of highways, at the time of building the bridge in question, or soon after, constructed trestle work from the Brighton end of the bridge, westerly to the highland over which the road was laid out, thereby enabling teams to pass over the marshy ground, and afforded a passage for the water of the creek to pass through in high water. When the commissioners of Brighton built the bridge across the creek, they did nothing to make a road across the marsh on the Penfield side of the creek, but left it as they found it and as it had been for many years.</p> <p>At the close of the evidence the defendant’s counsel moved for a nonsuit on the following grounds, amongst others, to wit: First, that the testimony does not show a highway has been actually opened and worked and traveled upon the road surveyed; and, second, that there is no evidence of a complete bridge. The motion was granted. Exceptions were ordered to be heard at first instance at General Term.</p> <p>Further facts appear in the opinion.</p> <p>It was not material how much of the highway had been worked, a design to maintain it being shown. (Marble v. Whitney, 28 N. Y., 306; 1 R. S., 521, § 99.)</p> <p>Plaintiffs were properly nonsuited. (8 Barb., 645; 27 id., 551; 11 N. Y., 392; 59 id., 319; Mather v. Crawford, 36 Barb., 564.) The road across the marsh never having been worked, had ceased. (Laws 1861, chap. 311; Christy v. Newton, 60 Barb., 337.)</p>

The complaint in this action alleged, in substance, and the referee found that, in March, 1869, one Edward H. Parr, being the owner of certain real estate in Utica, executed a mortgage thereon to defendant for $794; that defendant paid and advanced thereon $494, and agreed verbally to pay two prior mortgages upon the premises, held by a savings bank, amounting to $300 ; that in October, 1869, said Parr-conveyed the premises to plaintiff by warranty deed, subject, to…

(Reported below, 7 J. & S., 372.) This action ivas brought to restrain the carrying on of business in certain premises situate on the north-east corner ■ of Fiftieth street and Sixth avenue in the city of New York, of which the defendant Lynch was owner, and the other defendants tenants, upon the ground that the premises were subject to a covenant reserving the property exclusively for dwelling houses.

<p>Appeal from judgment of the General Term of the Court of Common Pleas, in and for the city and county of New York, affirming a judgment in favor of defendant, entered upon an order dismissing plaintiffs’ complaint on trial.</p> <p>This action was brought to recover a balance alleged to be due on an account against the county of New York.</p> <p>On the 16th day of September, 1872, the board of supervisors of the county of New York audited and allowed a claim presented by plaintiffs’ at the sum of $10,035. It was admitted by the pleadings that such claim was a county charge, and that the said final audit was duly certified to the comptroller of the city of New York by the clerk of the board of supervisors.</p> <p>On the 20th of April, 1874, a receiver, who had been appointed in supplemental proceedings against the plaintiffs, commenced proceedings by mandamus against the auditor of accounts in the finance department of the city of New York, to compel him to examine and allow the voucher of* said claim, he having refused so to do. On the 16th of May, 1874, a peremptory mandamus was issued commanding said auditor to examine and allow the voucher.</p> <p>The only action taken by the auditor is set forth in the following certificate;</p> <p>11 May 12, 1874.</p> <p>“ I certify to the comptroller this account of Lanigan and Adams, which I have examined, audited, revised, allowed and settled at the sum of six thousand one hundred and twenty-four dollars ($6,124),” etc.</p> <p>Thereupon the comptroller received the voucher and certificate, and paid to the receiver the amount of the judgment and costs of the suit, wherein said receiver was appointed, to wit, $2,444.42, and subsequently $2,757.58, was paid to the attorney of the plaintiffs. After the commencement of this action the auditor made a return to the writ setting forth that he had examined and allowed the account as stated in his certificate.</p> <p>No further proceedings appear to have been taken.</p> <p>The audit and allowance of the claim in suit by the board of supervisors was a judicial determination, and final and conclusive. (Suprs. of Onon. Co. v. Briggs, 2 Den., 26-39; People v. Suprs. of Schen. Co., 35 Barb., 408; People v. Suprs. of Liv. Co., 26 id., 118; People v. Start, 23 id., 344; People v. Lawrence, 6 Hill, 244; People v. Suprs., 9 Wend., 508; Huff v. Knapp, 5 N. Y., 65; 2 Crary’s Spec. Proc. [3d ed.], 58; People ex rel. Brown v. Green, 2 T. & C., 18; 56 N. Y., 476; Laws 1857, chap. 590, § 6; Laws 1870, chap. 190, § 6.) Plaintiff’s offer to prove the practice in the department of finance as to examining and allowing vouchers and certifying to the same was proper. (Eaton v. Pickersgill, 55 N. Y., 315; Troup v. Haight, Hopk., 268.) The mandamus proceeding in this case was not an action and there consequently was no judgment. (People ex rel. Lumley v. Lewis, 28 How. Pr., 159.)</p> <p>The proceedings by mandamus constituted an executed judgment upon the subject matter of this action and a bar to the maintenance thereof. (Brady v. Suprs., 2 Sandf., 460; Huff v. Knapp, 5 N. Y., 68; Embury v. Connor, 3 id., 522; Mercun v. People, 25 Wend., 64; Platner v. Best, 11 J. R, 530; 20 Howell’s State Trial, 530; Ehle v. Bingham, 7 Barb., 494; Young v. Rummell, 2 Hill, 478; Gardner v. Buckbee, 3 Cow., 120; Burt v. Steenburg, 4 id., 559; Wood v. Jackson, 8 Wend., 9; Lawrence v. Hunt, 10 id., 81; Nicholl v. Mason, 21 id., 339; Baker v. Ravel, 13 Barb., 152; 5 Sandf., 134; Thomas v. Rumsey, 6 J. R, 26; 12 Abb. Pr., 247.) The action of the auditor must be presumed to have been proper and legal and the account cannot be reopened and his action examined and reviewed in this action. (Platner v. Best, 11 J. R, 530; Suprs. Onon. Co. v. Briggs, 2 Den., 26; 2 Hill, 135.) The auditor was not bound to allow plaintiff’s vouchers at the sum allowed by the supervisors because they had made such allowance. (Laws 1870, chap. 190, § 6, p. 482; People v. Lawrence, 6 Hill, 244; People v. Stout, 23 Barb., 354; Chemung Co. Bk. v. Suprs., 5 Den., 20; Morris v. People, 3 id., 382.) By the act consolidating the city and county of Hew York liabilities enforcible against the county became chargeable against the city. (Laws 1874, chap. 304, p. 360; Laws 1857, chap. 590, § 6; Laws 1870, chap. 190, § 6; People v. Green, 2 T. & C., 18.)</p>

<p>Appeal from order of the General Term of the Superior Court of the City of New York, setting aside a verdict in favor of plaintiff and granting a new trial. (Reported below, 5 J. & S., 458.)</p> <p>This action was brought to recover damages alleged to have been sustained by plaintiff in consequence of the negligence of defendant’s employees and servants.</p> <p>The complaint alleged, and plaintiff’s evidence tended to show, that he had a wareroom or repository for carriages and harness on sale in the city of New York. That the department of public instruction occupied the upper part of the building for a normal school, the same having been leased by the board of education prior to the creation of said department; that the water-closets connected with the school were defectively constructed, and negligently used, so that dirty and foul water therefrom ran down into plaintiff’s premises, injuring his stock. Defendant’s counsel, on thé trial, moved to dismiss the complaint, on the ground, among others, that defendant was not liable for negligence on the part of the department of public instruction or its agents. The motion was denied, and said counsel duly excepted.</p> <p>The court charged, among other things, that defendant was liable for damages resulting from the negligence of the employes of said department, to which defendant’s counsel duly excepted. The jury rendered a verdict for the plaintiff. Exceptions were ordered to be heard, at first instance, at General Term.</p> <p>The closets were, at the time of the injury complained of, the property of the respondent. (Laws 1854, chap. 101, § 2; subd. 11, Const. art. 8, § 3; Laws 1869, chap. 437; Gildersleeve v. Bd. of Education, 17 Abb. Pr., 201, 211; A. & A. on Corps. [9th ed.], §§ 309, 659; Laws 1871, chap. 574; Miller v. Mayor, etc., 3 Hun, 35; N. Y. Bal. Dock Co. v. Mayor, etc., 8 id., 247; Clarrisy v. Met. Fire Dept., 1 Swu., 224; 7 Abb. Pr. [N. S.], 552; Gardner v. Bd. of Health, 4 Sandf., 153.) The department of public instruction being an integral part of the corporation of the city of New York can neither sue nor be sued. (Gildersleeve v. Bd. of Education, 17 Abb. Pr., 201; Brady v. Suprs. of N. Y., 10 Sold., 260; 2 Sandf., 460.) The corporation of the city of New York succeeded to all the property, rights, duties and obligations of the board of education, including the leases in question and the water apparatus. (Miller v. Mayor, etc., 3 Hun, 35.) The respondent was guilty of negligence in permitting the water apparatus to be used in a defective condition. (2 Hill on Torts, 73; Bedell v. L. I. R. R. Co., 44 N. Y., 367-370; Wolfkiel v. Sixth Ave. R. R. Co., 38 id., 49; Wooden v. Austen, 61 Barb., 49 ; Penn. R. R. Co. v. Barnett, 59 Penn., 259 ; Bailey v. Mayor, etc., 3 Hill, 531; Darlington v. Mayor, etc., 31 N. Y, 164, 198 ; Martin v. Mayor, etc., 1 Hill, 545 ; Lorillard v. Town of Monroe, 11 N. Y., 392; Bk. of Comm. v. Mayor, etc., 43 id., 184; Maximilian v. Mayor, etc., 62 id., 167; Irvin v. Wood, 54 id., 224; Eakin v. Brown, 1 E. D. S., 36; McCarthy v. City of Syracuse, 46 N., 194; Roch. W. Lead Co., v. City of Rochester, 3 id., 463; Lloyd v. Mayor, etc., 5 id., 369; Delmonico v. Mayor, etc., 1 Sandf., 222; Donohue v. Mayor, etc., 3 Daly, 65; Barton v. City of Syracuse, 36 N. Y. 54; Lacour v. Mayor, etc., 3 Duer, 406; Corad, Trustee v. Village of Ithaca, 16 N. Y., 161-168; Storrs v. City of Utica, 17 id.. 104; Grant v. City of B'klyn, 41 Barb., 381; Davenport v. Ruckman, 37 N. Y., 568 ; Hume v. Mayor, etc., 47 id., 639 ; Barton v. City of Syracuse, 36 id., 54; McGinity v. Mayor, etc., 5 Duer, 674.)</p>

This action was brought for a dissolution of a co-partnership between the parties for the accounting, etc. In September, 1870, one Hall, who was the proprietor of a newspaper .published in Watertown, H. Y., known as the “ Watertown Weekly Be-Union,” and also of a job printing establishment connected therewith, entered into a contract with one Warren, in and by which said Hall in consideration of the sum of $10,000, $1,500 down, and the balance payable in installments,…

(Reported below, 10 Hun, 112.) The facts sufficiently appear in the opinion. The previous valuation not having been of the lots separately, was not such a valuation as was required by the statute. (1 R. S. [6th ed.], 992, §§ 8, 10, 11; Laws 1859, chap. 302; Sharp v. Johnson, 4 Hill, 100; Howlett v. Mayor, 63 N. Y., 291.) The valuation of the property in 1856 was sufficient to validate the assessments.

(Reported below, 10 Hun, 289.) . The respondents, as executors of the last will and testament of Eliza Hearsay, deceased, presented the same for probate. The appellants, who were legatees under a former will, contested. The surrogate admitted the will to probate, but made allowances to the counsel for the contesting parties. From this part of the decree the executors appealed. The General Term reversed the portion of the decree appealed from.

This action was brought to recover the proceeds of certain sales of sugars alleged to have been received by defendants as plaintiff’s factors. It appeared substantially from the papers that defendants were sugar brokers in New York, doing business under the firm-name of Dayton & Co., the actual management and control of the business being under the personal supervision of defendant Dayton.

It appeared that a prior assessment for paving the same street was imposed upon the premises in 1831, no proof was presented by the petitioner that said assessment had ever been paid. The failure to publish in the New York Leader the resolution and ordinance was fatal to the assessment. (In re Smith, 52 N. Y. 526; In re Folsom, 56 id., 60; In re Anderson, 60 id., 457; In re Burke, 62 id., 224.) The payment of the first assessment was sufficiently proven.

(Reported below, 9 Hun, 236.) This was an action of replevin, plaintiff claiming to recover the possession of twelve bales of tobacco, and a check drawn by him for $2,000. The order of arrest was granted under subdivision 3 of section 179 of .the Code.

(Reported below, 8 Hun, 413.) This action was brought to recover back moneys alleged to have been paid upon an alleged assessment.

These are cross appeals by plaintiffs and by defendants, the executors of Daniel Devlin, deceased, affirming a judgment in favor of plaintiffs and certain of the defendants of the General Term of the Supreme Court in the first judicial department, entered upon a decision of the court on trial without a jury. (Reported below, 9 Hun, 603; reported on a former appeal, 54 N. Y., 403.) ¡ This was an action for equitable relief.

(Reported below, 9 Hun, 637). This action was brought to obtain a judicial construction of the will of George Lesley, deceased.

The nature of the action and the facts are set forth sufficiently in the opinion. The remedy by injunction was proper, and neither the people nor the relators were obliged to wait until the wrong was consummated. (Story’s Eq. Jur., 924; Bradley v. Comrs., 2 Humph., 428; Hil. on Inj. [3d ed]., 522; Frewin v. Lewis, 4 M. & C., 239; 9 Sim., 66; New London v. Brainard, 22 Conn., 553; R. D. Nav.

(Reported below, 8 Hun, 579.) This action was in the nature of a quo warranto to try the title to the office of commissioners of excise of the city of Lockport. It appeared by the evidence that defendants were duly appointed by the mayor commissioners of excise of said city in April, 1870.

This action was brought to recover a penalty for an alleged violation of a special order made by the board of health of the city of Hew York. Defendant was the owner of certain premises in said city, which the board of health declared a nuisance and dangerous to life and health, and ordered that the privy vault “ be ventilated by means of an eight-inch earthen-ware pipe.” This order defendant did not comply with.

Smith, and reversing as to defendant Andrew H. Smith, a judgment in favor of plaintiff entered upon a verdict. The appeal was by defendant, Philemon H. Smith, from so much of the judgment as affirmed as to him the judgment below. (Reported below,, 7 Hun, 244.) This action was brought against defendants as joint sureties for the performance by the lessees of the covenants of a lease executed by plaintiff as lessor.

This action was brought against defendant as indorser of two promissory notes, dated June 22, 1873, made by S. Wright & Co., each for $2,500, payable the one at four months, the other at five. The facts as found by the referee were, in substance, as follows: S. Wright & Co. were manufacturers of woolen goods, which they consigned to plaintiffs, who were commission merchants in New York, for sale.

<p>Appeal from order of the General Term of the Supreme Court iu the first judicial department, reversing, in part, a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 8 Hun, 26.)</p> <p>This action was brought to restrain defendant from selling certain premises under a judgment of foreclosure upon a mortgage thereon, and to have the mortgaged premises declared free and discharged from the lien of the mortgage, or that plaintiff be entitled to redeem. The referee found, in substance, the following facts :</p> <p>On the 3d day of July, 1867, one George Thomas recovered a judgment against Hugh McElroen and another for $434.33, which judgment was duly docketed. On the 9th day of May, 1868, said judgment was assigned and transferred to one Ralph E. Prime.</p> <p>On the 20th day of June, 1872, said McElroen (who was then the owner of the premises described in the complaint), executed to the defendant a mortgage covering the premises described in the complaint, to secure the payment of the sum of $4,000 and interest, which mortgage was duly recorded. On the 1st day of January, 1874, said McElroen executed to one William F. Lawrence a mortgage covering the premises to secure the payment of the sum of $3,000, which mortgage was duly recorded. On the 1st day of May, 1874, the said mortgage was assigned by Lawrence to the plaintiff. Prior to the assignment of said last-mentioned mortgage, and as an inducement to the plaintiff to purchase the same, the said William F. Lawrence agreed to and' accordingly procured an agreement in writing from said Prime, by which the lien of the said judgment was postponed and made subordinate to the lien of said mortgage. On the 4th of. January, said premises were sold on an execution issued on said judgment and were purchased by defendant, he having no notice of said agreement postponing the lien of the judgment. In February, 1875, defendant commenced an action for the foreclosure of its mortgage, and judgment of foreclosure and sale was entered in said action on the 22d day of March, 1875, and the premises covered by said mortgage were advertised for sale. On the 21st day of May, 1875, the plaintiff made a lawful tender to the defendant of the amount due upon said judgment of foreclosure and sale, and interest and costs and expenses, and claimed and demanded of said defendant the right to redeem, as junior mortgagee, the said mortgage and judgment of foreclosure and sale, and a transfer of said mortgage or judgment of foreclosure to the said plaintiff; defendant refused to receive the- sum so tendered unless the plaintiff would pay, in addition to the amount so due to the defendant upon such judgment of foreclosure and sale, the sum for which the premises in question were sold under the aforesaid judgment. Intervening the said mortgage of' the defendant and the mortgage of the" plaintiff, the said McElroen executed two other mortgages covering the premises in question, which mortgages were both liens upon said premises prior to the lien of plaintiff’s mortgage. The premises in question are an inadequate security for the amount due upon the mortgage of plaintiff and the prior liens thereon.</p> <p>As conclusions of law, the referee found: That the tender so made to the defendant did not discharge the lien of said mortgage, nor did such tender invalidate the judgment of foreclosure and sale, or in any respect impair its force and effect.</p> <p>That the lien of the Thomas judgment was, by virtue of the said agreement, postponed, and became subordinate to the lien of the plaintiff’s mortgage, and that the rights and interest of the purchaser upon the execution sale are subordinate and subsequent to the lien of the said mortgage.</p> <p>That the plaintiff was entitled to redeem, and to an assignment of said mortgage and judgment of foreclosure from the •defendant, upon the payment to the defendant of the amount due thereon to the 21st day of May, 1875.</p> <p>Judgment was entered accordingly.</p> <p>Both parties appealed, plaintiff from that portion of the judgment adjudging that the tender did not discharge the lien of the mortgage, defendant from the residue thereof. The General Term affirmed that portion of the judgment appealed from by plaintiff, and reversed the residue.</p> <p>The tender by plaintiff to defendant of the full amount due upon its decree of foreclosure operated to discharge the lien of defendant’s mortgage and cancel the decree. (Kortwright v. Cady, 21 N. Y., 343; Stoddard v. Hart, 23 id., 560; Hartley v. Tatham, 1 Keyes, 222; Dings v. Parshall, 7 Hun, 522.) The argument that the Prime agreement to postpone had not been recorded, is without any force. (3 R. S. [5th ed.], 45, 59; Rorer on Judicial Sales, 225, § 629; Gilman v. Brown, 1 Mason, 221; Jackson v. Chamberlain, 8 Wend., 625; Wood v. Chapin, 13 N. Y., 521.) It is immaterial whether Baird or defendant, at the time of the execution sale, knew of the existence of the Prime agreement or not. (Rorer on Judicial Sales, 1-14, 28, 29, 252, § 720; Carpenter v. Shetwell, 11 N. Y., 71, 76; Swan v. Saddlemire, 8 Wend., 681.) No defence of latent equities could exist. (Beebe v. Bank of N. Y., 1 J. R., 553; Mickles v. Townsend, 18 N. Y, 575; Bush v. Lathrop, 22 id., 535.) As defendant had no other lien than its mortgage upon the premises in question, plaintiff had a lawful right, as a subsequent mortgagee and lienor, to the redemption. (Pardee v. Van Auken, 3 Barb., 534; Ellsworth v. Lockwood, 42 N. Y., 89, 96; Trimm v. Marsh, 54 id., 599; 4 Kent’s Com. [Holmes’ 12th ed.], 162, note; Averill v. Taylor, 8 N. Y., 44.)</p> <p>This action being one in equity, whatever remedies are invoked must be subject to the equitable .rights of all parties whose interests are affected. (1 Kent, 163; 2 Barb. Ch. Pr., 194.) Plaintiff could not redeem unless he paid the amount bid on the sale. (People v. Ransom, 2 Hill, 51; 2 N. Y., 490.) The tender by plaintiff did not oblige the creditor to accept it or discharge the lien of the mortgage. (Harris v. Jex, 66 Barb., 232.)</p>

<p>Appeal from judgment of the General Term of the Superior Court of the city of New York in favor of defendant, entered upon an order denying a motion for a new trial and directing judgment on exceptions. e</p> <p>This action was upon a policy of life insurance issued by defendant upon the life of James M. Benedict, and assigned by the insured to plaintiff.</p> <p>The policy contained a clause that, in case the insured should “ die by his own hand,” the policy should “ be void, null, and of no effect.”</p> <p>The insured committed suicide. It was claimed by plaintiff that the deceased, at the time of the commission of the act, was insane. The facts appearing in reference thereto are sufficiently stated in the opinion. At the close of the evidence the court ordered a nonsuit, to which plaintiff’s counsel duly excepted. Exceptions were ordered to be heard, at first instance, at General Term.</p> <p>There was no forfeiture of the policy, if the act of self-destruction was committed by the deceased while so bereft of reason as not to understand the nature and consequences of the act by which his life was terminated. (Van Zandt v. Mut. Ben. L. Ins. Co., 55 N. Y., 169, 176; Estabrook v. Un. Mut. L. Ins. Co., 54 Me., 224; Brewster v. F. L. & T. Co., 4 Hill, 73; 8 N. Y., 299, 304.) The evidence was sufficient to have warranted a finding that the disease of the assured was such that his mind ceased to control his action, and should have been submitted to the jury. (55 N. Y., 176; Moore v. Han. Ins. Co., 1 L. & Eq. [Mich.], 632.) The judge who granted the nonsuit was wrong as to the burden of proof. (Piedmont v. Ins. Co., 2 Otto, 377; Van Valkenburgh v. Am. Pop. Ins. Co., 4 Hun, 583; Bliss on Ins., 584, 585.)</p> <p>There was a breach of the condition of the policy rendering it inoperative and void, in case the insured should “ die by his own hand.” (Van Zandt v. Mut. Ben. L. Ins. Co., 55 N. Y., 169; Mc Clure v. M. L. Ins. Co., id., 651.)</p>

The original appeal was by the present appellants from a judgment of General Term, affirming a decree of the surrogate of King’s county, on a final accounting of appellants as executors of the estate of Henry Lawrence, deceased. The decision therein is reported in 68 FT. Y., 108. The judgment appealed from was reversed.

It was contended upon the part of the railroad corporation that the act in question was unconstitutional. Defendant was created by the consolidation of certain other railroad corporations, under and by the act chapter 917, Laws of 1869. The act requiring defendant to build the bridge was unconstitutional. (Const. U. S., art. 1, § 10; Const. N. Y., art. 1, § 6; Potter’s Dwarris, 477; Dart. Col. v. Woodward, 4 Wheat., 518; Benson v. Mayor, etc., 10 Barb., 223; Bing.

It was stated in the order of Special Term that the judgment and the sale were “ vacated and set aside as irregular, and also on the broad equities of the case.”

(Reported below, 8 J. & S., 548.) This action was brought to restrain an alleged violation of plaintiffs’ right to a trade-mark, and for damages.

<p>The will of B. devised certain premises to each of his three children, C., J. and W., respectively, “and his, her, or their direct lineal descendants, should he, she, or they have any, in fee simple absolutely,” “ subject to the conditions and contingencies” following, i. e., “in the event that either * * * shall die, leaving no children or descendants of any children, then and in such case,” the devise to the one so dying to go “to the children of the survivors or survivor * * * equally, share and share alike, the direct lineal descendants, if any, of such of my said three children * * * as may then be deceased to be entitled to the same share which the child or children so deceased would have been entitled to if living.” B. died, leaving the said three children him surviving. C. thereafter died, without having had a child bora to him. Held, that the death referred to was not a death during the lifetime of the testator; that the devise to C. gave to him a contingent estate in fee, subject to be, and which was reduced to a life estate by his death without children, or the descendants of any children, and upon his death the fee passed to the children of J. and W., then living. Also, that the devise over, was valid as a contingent limitation upon a fee (1R. S., 724, § 24), and was not repugnant to the statutory provision prohibiting the suspension of the power of alienation for more than two lives. (1 R. S., 723, §§ 14,15).</p> <p>The premises devised to C. were, during his life, sold for non-payment of an assessment, and were bid off by one P. C. left a will, by which he devised all his real estate toN., whom he also appointed executor. The certificate of sale was assigned by P. to N. as trustee, and an assessment lease was executed to him as such trustee. Held, that any title so acquired by N. enured to the benefit of the devisees under the will of B.</p>

(Reported below, 8 Hun, 286.) This action was brought to recover damages for personal injuries alleged to have been sustained by plaintiff in consequence of having been forcibly ejected from one of defendant’s cars. Plaintiff purchased a ticket for a passage on defendant’s road from New York to Albany.

This was an action upon a policy of fire insurance upon a stock of goods, in Lexington, North Carolina. By the policy it was required that the assured should “forthwith” give notice to the general agent of the company in the city of New York of any loss, and “as soon, after as possible,” furnish proofs of loss. A fire occurred November 23, 1865.