Volume 71 — New York Reports

upon an order reversing an order of Special Term which .overruled a demurrer to the complaint herein; and sustaining the demurrer and dismissing the complaint. (Reported ¡below, 8 Hun, 32.) This action was brought to have an assessment upon plaintiff’s premises vacated and to restrain its collection; The complaint alleged, in substance, that plaintiff was the owner of certain premises in the city of Brooklyn.

judgment on a verdict. (Reported below, 8 Hun, 373.) This action was brought to recover an alleged deficiency arising upon the foreclosure of a mortgage. The plaintiff owned a piece of land situated hi the city of Brooklyn, incumbered by a mortgage, which he had become liable to pay.

This was an action upon a promissory note made by defendant Kingsbury, and indorsed by defendant Hurd for the accommodation of the maker. Hurd alone defended. The evidence is sufficiently set forth in the opinion. The court at the close of the evidence nonsuited the plaintiff, to which plaintiff’s counsel duly excepted. As the indorser had all the knowledge necessary to inform him of the demand of payment of the note and its dishonor, it was duly protested as to him.

<p>Appeal from judgment of the General Term of the City Court of Brooklyn, affirming a judgment entered upon a decision of the court on trial Avithout a jury.</p> <p>This action was brought upon a judgment rendered April 16, 1874, in "favor of plaintiff against defendant. The defense was that the judgment was satisfied, and the judgment discharged by virtue of a composition in bankruptcy proceedings instituted before the commencement of the action, resulting in the judgment sued upon.</p> <p>The court found, in substance, among other things, the following: A petition in bankruptcy was filed against defendant in March, 1874. In October, 1874, defendant duly made in the bankruptcy proceedings an offer of twenty per cent, in composition of his debts, and filed a petition for a meeting of his creditors to consider the offer, to which was annexed a statement of his debts. A meeting of the creditors was duly called, defendant presented a statement purporting to show the whole amount of his debts, giving the names and addresses of his creditors, and the amount due each. The amount of plaintiff's claim was stated at $1,207.43. A resolution was adopted by the required number of creditors, and was confirmed by the requisite signatures, which resolution and statement were presented to the court upon due notice, and an order granted directing the recording of the resolution and filing of the statement, and that defendant within ten days after entry of the order, pay to the creditors the percentage offered upon their claims, and the deposit of the shares of such of the creditors as should decline to receive the same. Defendant tendered to plaintiff the twenty per cent., which the latter refused to receive, and the same was deposited in pursuance of the order.</p> <p>By the verdict in the action upon the judgment in which this action was brought, it appeared that the amount due plaintiff was $1,144.45, with interest from August 29,1873.</p> <p>The amount of the debt in this case for the purposes of a composition included interest to the date of the meeting of the creditors. (In re Hagan, 10 N. B. Reg., 383; Sloan v. Lewis, 12 id., 173; Ex parte Rooke, 1 Atk., 244; 4 Evans’ Stats., 407, § 49; id., 423, § 129.) Plaintiff was entitled to recover unless, it affirmatively appeared that the judgment sued upon had been extinguished by the composition proceedings. (Stoddard v. Whiting, 46 N. Y., 627; Jackson v. Andrews, 59 id., 244.)</p> <p>Plaintiff’s action is barred by the proceeding in bankruptcy, and the composition made by defendant with his creditors. (U. S. R. S., 103a, § 5; In re Becket, 12 B. R., 201; Black v. McClelland, 12 N. B. R., 481; Rens. Glass Factory v. Reid, 5 Cow., 610, 614; Pease v. Barber, 3 Cai. R., 266; Law v. Jackson, 2 Wend., 209; Fake v. Eddy, 15 id., 76; Lanning v. Swarts, 9 How. Pr., 434; Port Huron Dry Dock Co., 14 B. R., 253.) In bankruptcy the rights of parties are adjusted as of the date of filing the petition. When the debt draws interest and is due, interest may be computed to that date; but if not due, there must be a rebate of interest from that date to maturity of the debt. (Bump’s L. & Pr. (9th ed.), 82, 213, 504; In re Crawford, B. R., 171; Archer v. Brown, 8 N. B. R., 429; In re Preston, 5 id., 293; Gardner v. Cook, 7 B. R., 346; In re Vickery, 3 id., 696, 698; In re Rosey, 8 id., 509; 3 id., 584; Sanford v. Sanford, 58 N. Y., 67; Spellington v. Howland, 53 id,, 371, 374; Mills v. Davis, 10 N. B. R., 340; In re Wyman, 4 id., 5; In re Smith, 3 id., 81; 2 id., 20; Munroe v. Upton, 50 N. Y., 593; Clark v. Rowling, 3 id., 216; Fowler v. Dillon, 12 B. R., 308.) The bankrupt act being highly remedial, should be liberally construed. (Dresser v. Brooks, 3 Barb., 429; In re Locke, 2 B. R., 123; In re Trafton, 14 N. B. R., 507; Reiman v. Friedlander, 11 B. R., 21; 13 id., 28.) Discrepancies, errors and omissions, unless intentional or fraudulent, should be disregarded. (2 id., 124; 3 id., 47; 8 id., 494; Platt v. Parker, 11 N. Y. [S. C. R.], 135; In re Clough, 2 B. R., 151; Holmes v. Lissberger, 12 id., 86; In re Lathrop, 3 id., 413; Ex parte Hodgkinson, 2 N. Y. W’kly Dig., 409.) The Bankruptcy Court having considered and overruled plaintiff’s objection, it is res adjudicata. (Tuska v. O'Brien, 4 N. Y. W’kly Dig., No. 8; In re Sawyer, 14 B. R., 241.) The final order ratifying the composition is equivalent to a discharge in bankruptcy, and cannot be impeached or reviewed in a Statef court. (Bankrupt Act, § 34; In re Beckett, 12 N. B. R., 200; McLean v. Pollock, N. Y. Tribune, Oct. 18, 1875; Smith v. Engle, 9 Chicago L. N., 46; Ocean Nat. Bk. v. Olcott, 46 N. Y., 12; Stone v. Naisbaum, 47 How. Pr., 489; 9 N. B. R., 74; 8 id., 494; Miller v. Mackenzie, 13 B. R., 496.)</p>

(Reported below, 8 Hun, 6.) This action was brought by plaintiff, as assignee of a bond and mortgage executed by Maria C. Hood upon certain premises in Brooklyn, to recover a deficiency arising upon foreclosure sale, upon an alleged covenant in a deed from said Maria C. Hood to defendant, assuming and agreeing to pay the mortgage.

This action was brought to recover damages alleged to have been caused by defendant’s negligence. The referee found the following facts, in substance, among 'Other things:.

The nature of the action and the facts are sufficiently set forth in the opinion. The court erred in admitting evidence under the affirmative defenses in the answer. (Gerber v. Monie, 56 Barb., 652, 661; Duncan v. Spear, 11 Wend, 54; Rogers v. Arnold, 12 id., 30; Hoyt v. Van Alstyne, 15 Barb., 568; King v. Orser, 4 Duer, 431; Neff v. Thompson, 8 Barb., 213.) Defendant had a right to prove property ail'd right of possession in his Wife.

• This action was brought by plaintiffs, who were the owners and managers of the Olympic Theatre, in St. Louis, to recover damages for an alleged breach of contract by defendants.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, affirming a judgment in favor of defendants, entered upon the report of a referee.</p> <p>This action was brought against defendants as executors of the will of Margaret A. Wagner, deceased, to recover for services alleged to have been rendered by plaintiff for the deceased.</p> <p>The referee found substantially the following facts, among others:</p> <p>The deceased was the second wife of Peter J. Wagner. The plaintiff was a relation of Wagner and of his first wife. After the marriage of Wagner to his second wife, which took place in January, 1839, the plaintiff, then about twelve years old, with the consent of her parents, went to live with him without any specific agreement as to terms. From that time till the death of the second wife, the plaintiff lived with them and was educated and boarded substantially as one of their children. During this time she rendered such services in the family as were suitable to her age and condition. On arriving at mature age, she assisted Mrs. Wagner in the care and management of household affairs. In 1858, Mr. Wagner failed. He transferred his house to Mrs. Wagner in in payment of a debt. Before he failed he had supported the family. Afterwards he contributed what he could, and Mrs. Wagner paid the rest. Mrs. Wagner during her life, and at the time of her death, was possessed of considerable real and personal property. She never carried on business on her separate account, and never for herself or on her own account employed plaintiff or requested her to perform the services for which the action was brought. In 1849, the plaintiff expressed a wish to Mr. and Mrs. Wagner to know what was to be her reward for what she was doing in the family. They assured her she should be rewarded. A similar conversation was had in 1858. During the last sickness of Mrs. Wagner, in 1871, she expressed and declared to the plaintiff and her brother her intention to provide for the plaintiff by will. In December, 1871, Mrs. Wagner made a will by which she directed each of her four children to give a note of $250 to the plaintiff, “to be in full for her claims for past services.” She died soon afterwards, and her debts, exclusive of plaintiff’s claim, exceeded her real and personal estate.</p> <p>The referee directed judgment dismissing the complaint, and judgment was entered accordingly.</p> <p>Defendants’ testatrix by her will charged her separate estate with the payment of plaintiff’s services. (Owens v. Dickinson, 1 C. & P., 48; Story’s Eq. Jur., §§ 1397, 1398 [note 1], 1400; Conlin v. Cantrell, 64 N. Y., 217.)</p> <p>There was - no agreement by defendants’ testatrix sufficient to charge her separate estate with plaintiff’s claim. (Yale v. Dederer, 22 N. Y., 456; Corn Ex. Bk. v. Babcock, 42 id., 642; Baker v. Harder, 6 N. Y. S. C. R., 440; Weir v. Groat, id., 444.)</p>

This action was brought for an alleged breach of a covenant to rebuild contained in a lease. On the tenth day of April, 1862, John S. Gannon, the plaintiff’s testator, leased of the defendant the undivided half of certain premises in the city of Buffalo, for the period of twelve years, from August 1st, 1866, and agreed to pay as a rental the annual sum of $4,000.

On the 29th of March, 1875, the plaintiff recovered a judgment, by confession herein, for $1,207.69, consisting of two items; one of $1,109.49, and the other of $98.20. The material portion of the statement upon which the judgment was entered, is set forth in the opinion. Execution was issued upon said judgment, under and by virtue of which personal property of the judgment-debtor was levied upon and sold, realizing about $180.

) This action was brought to foreclose a mortgage executed by defendants, Charleé Burgess and Louisa Burgess, his wife, upon premises owned by the former. Defendants, Blakeslee and others, attachment and judgment-creditors of said Burgess, defended on the ground that the mortgage and note, to secure which it was given had been paid. The court found, in substance, the following, among other things: At the date of the note and mortgage, the defendant.

(ítem, of decision below, 3 Hun. 413.) This action was brought for the alleged wrongful talcing and conversion of a promissory note of $1,000 made by defendant, dated January 14, 1870, payable ten years after date without interest. The facts appear sufficiently in the opinion. Defendant was liable in an action of trover.

The complaint in this action contained five counts: one upon a promissory note, the others for work, labor and services. The answer set up various counter-claims for work, labor and services performed by defendants, and by one Horace Green, for plaintiffs. The reply alleged, in substance, that, in pursuance of an agreement between the parties, plaintiffs let defendants' use their horse and wagon as an equivalent for such services.

The nature of the action and the facts appear sufficiently in the opinion. Plaintiff was entitled, in case the boat could not be delivered, to only the amount of his mortgage debt and interest, and the necessary expense of taking the property and caring for it. (Parish v. Wheeler, 22 N. Y., 494; Chadwick v. Lamb, 29 Barb., 518; Dewit v. Morris, 13 Wend., 499; Sedgw. on Dam. [1st ed.], 525, 523; id. [2d ed.], 502.)

These were cross-appeals from judgment of the General Term of the Supreme Court, in the fourth judicial department, modifying and affirming, as modified, a judgment in favor of plaintiffs, entered upon a decision of the court on trial at Special Term. This action was brought to foreclose a mortgage executed by defendant Reese to the plaintiffs for the sum of $1,100, and interest.

This action was brought to recover damages sustained by plaintiff’s intestate from the falling of one of defendant’s telegraph poles, in one of the streets in the city of Brooklyn. The facts sufficiently appear in the opinion. Defendant was only bound to exercise an ordinary and reasonable degree of care and vigilance in the construction and maintenance of its line.

<p>Appeal from judgment of the General Term of the Supreme Court, jn the third judicial department, entered upon an order denying a motion for a new trial and directing judgment upon a verdict.</p> <p>This action was brought to recover possession of a quantity of personal property, the products of a farm in Cortland county, which farm was owned by plaintiff, as were also the farming implements, the teams, and the live stock on the farm used in carrying it on.</p> <p>The farm was worked by one James H. Eawley, the son of the plaintiff; defendant claimed title to the property in question as purchaser under sale on execution issued upon a judgment against said James H. Eawley. Plaintiff claimed that the farm was occupied by his son under the following agreement, which was given in evidence on the trial:</p> <p>“ This agreement, made the 1st day of March, 1874, between Daniel Eawley and James H. Eawley, is as follows: Said James H. Eawley agrees to work said Daniel Eawley’s farm, situated in the town of Solon, county of Cortland, and State of New York, in a good husband-like manner, for the term of one year from the date of this agreement, for said Daniel Eawley.</p> <p>“ Said farm is furnished with twenty-two cows and some farming and dairy utensils, owned by said Daniel Eawley; said James H. Eawley agrees to keep one cow and one horse for said Daniel Eawley, for his use during said year, and furnish said Daniel Eawley with one acre of ground to plant; also a garden, and the use of four rows of apple trees on the north side of the old orchard, on said farm.</p> <p>“Said James H. Eawley agrees to pay all taxes assessed against said farm during the year, and to keep said cows as good and in as good condition as they are at the commencement of the year, and in case of the loss oí any of said cows, to replace them with others equally as good; and to furnish as much hay on the farm, at the end of the year, as is there at the beginning of said year.</p> <p>“ Said James H. Eawley is to have the use of one-half of the dwelling-house on said farm.</p> <p>“ All the butter and cheese and produce of said firm is to belong to the said Daniel Eawley until he shall sell or dispose of enough to amount to six hundred dollars, and until all the above agreements have been fulfilled. The balance of the avails of said farm (except as above reserved) is to belong to said James H. Eawley, and is his pay, in full, for working said farm, and for all he has agreed to perform by this agreement.</p> <p>“ Said James H. Eawley shall not sell or dispose of any of the butter, cheese, or produce, of said farm, until the said Daniel Eawley has disposed of enough to amount to six hundred dollars, as above stated.</p> <p>“ DANIEL EAWLEY. [l. s.] “JAMES H. EAWLEY.” [l, s.J</p> <p>It was claimed, upon the part of the defendant, that this instrument was not executed at its date, but was made “ as a device or fraud, ” and not in good faith. The sole question of fact submitted to the jury was as to the bona fides of this instrument.</p> <p>The court charged the jury, among other things, as follows</p> <p>“ Now, the plaintiff must satisfy you, in order to recover, that this instrument is what it purports to be; that it is a bona fid,e contract, and that it was the contract under Avhich James H. BaAvley went into possession of the farm, and went to producing the products—because, he being in possession of and working the farm, and producing the products, he must be presumed to be the owner until it is shown that some lease is in existence. The fact that it was the plaintiff’s farm would not make the products his, unless there was something tending to establish the fact that this lease is intended to establish.”</p> <p>To which plaintiff’s counsel duly excepted.</p> <p>Further facts appear in the opinion.</p> <p>The contract of plaintiff with James H. Rawley was one which constituted the relation of master and servant between them. (60 N. Y., 221; 6 Lans., 180; 45 Barb., 304; 3 Hill,. 90.) The contract contained a condition precedent which prevented any title vesting in James H. Rawley until performance. (1 Seld., 44; 62 N. Y., 1, 3; 3 Metc., 17, 18; 2 Sandf. [S. C. R.], 418.) Plaintiff being the owner of the farm, was in law presumptively the possessor thereof. (Frantz v. Ireland, 66 Barb., 389; Smith v. Burtis, 6 J. R., 218; 1 Salk., 246; 2 Black. Com., 199.) There was no question of fact for the jury. (Cole v. Mann, 62 N. Y., 1; Sheridan v. Mayor, etc., 4 W’kly Dig., 28.)</p> <p>The jury had the right to utterly discredit and reject the testimony of plaintiff and James Rawley. (Sheridan v. Mayor, etc., 18 How., 424; Elwood v. W. Un. Tel. Co., 45 N. Y., 549, 554.) Possession of personal property is prima fade evidence of title. (Fish v. Skeel, 21 Barb., 333, 334; 1 Greenl. Ev., § 34; Doneharl v. Wilson, 15 Barb., 595; Wilber v. Disson, 53 id., 262.)</p>

These were cross-appeals from a judgment of the General Term of the Supreme Court, in the first judicial department, affirming m part and reversing in part, a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term.

<p>It seeins, that without some security given before the granting of an injunction order, or without an order requiring some act on the part of the plaintiff equivalent to the giving of security, such as a deposit of money in court, or unless the conduct of plaintiff has been such as to give ground for an action for malicious or vexatious prosecution, the defendant has no remedy for any damages which he may sustain from the issuing of the injunction.</p> <p>The undertaking to be given on the granting of a temporary injunction must conform, in terms or in substance, to the requirements of the Code (section 222), and the liability of the sureties is according to those terms. There is no breach of the condition of the statutory undertaking, unless the court finally decide that plaintiff was not entitled to the injunction, or unless something occurs equivalent to such a decision.</p> <p>A temporary injunction order was granted herein restraining defendant from intruding into the office of deputy chamberlain of New York city, or performing any of its functions, or exercising its powers; the order was subsequently modified by the court by allowing defendant to institute legal proceedings to test his claim to the office. Under an act of the Legislature, passed during the pendency of the action, plaintiff was deposed from the office of chamberlain, which he held at its commencement. Leave was granted defendant to put in a supplemental answer, setting up the statute and plaintiff’s removal thereunder, and to plaintiff to discontinue, in ten days thereafter, on payment of costs. Plaintiff did not discontinue within the time specified; but thereafter, on stipulation of the parties, and on payment of §100, an order of discontinuance was entered. Held, that this was not equivalent to a final decision of the court that plaintiff was not entitled to the injunction order when it was granted; that there was no breach of the condition of the undertaking and no right of action thereon ; and that, therefore, an order directing a reference to ascertain defendant’s damages, sustained by reason of the injunction, was improperly granted.</p>

This action was brought to recover for the alleged taking and unlawful conversion of a quantity of merchandise belong- ■ ing to plaintiff. The defendant justified the taking under a lease of a store executed by hinr as lessor to the firm, L. E. Haynes & Co., in March, 1873. The lease was for the term of one year from April 1st, 1873.

This action was brought against defendants as “trustees of the mutual society called Shakers,” located in the town of Watervliét, Albany comity, to recover damages alleged to have been sustained by reason of a breach of warranty made upon sale of a quantity of cabbage seed. The facts appear sufficiently in the opinion. The judgment against the trustees, as such, was wholly unwarranted, and cannot be maintained.

The nature of the action and the facts are set forth sufficiently in the opinion. The finding of a material fact wholly without evidence to sustain it is an error of law, and upon exception is reviewable in this court. (Mason v. Lord, 40 N. Y, 477; Draper v. Stowvenal, 38 id., 219; Duffy v. Masterson, 44 id., 557; Murray v. Harway, 56 id., 346; Hobart v. Hobart, 62 id., 80, 81.) Adultery could not be justly or legally imputed to plaintiff from the evidence.

(Reported below, 9 Hun, 50.) Before the marriage of respondent and said Nathan Pierce, they executed an ante-nuptial agreement; and the only ques-. tions upon this appeal were in reference thereto. By the ante-nuptial agreement, Pierce agreed to pay or cause to be paid to his intended wife, if she survived him, $500 for her sole and separate use.

Appeal by the National Bank of Genesee from an order of the General Term of the Supreme Court, in the fourth judicial department, affirming an order of Special Term directing a disposition of surplus moneys. This was an action of foreclosure. Judgment of foreclosure and sale was perfected, and on sale thereunder a surplus of $3,889.80 arose.

The application was for a writ of peremptory mandamus, requiring defendant, as treasurer of the county of Albany, to pay a claim of the relator audited by the board of supervisors of said county. It was claimed, upon the part of defendant, and the opposing papers tended to show, that a fraud was perpetrated upon said board as to a portion of the claim, and that another portion was allowed without authority of law. Further facts appear in the opinion.

The nature of the action and the facts are set forth sufficiently in the opinion. The deed to Porter is to be read as if the defeasance and $500 note were contained in its provisions.

(Reported below, 7 Hun, 399.) This action was brought to recover damages for the loss of a steer, while being transported on defendant’s road from Syracuse to Binghamton.

This was an action of ejectment to recover nine-thirtieths of one hundred acres of land situate in Middlesex, Yates county. The action was originally brought by Samuel Christie against Franklin J. Green; both parties having died during its progress, the present parties, their heirs-at-law, were substituted.

(Reported below, 8 Hun, 13.) This action was brought to recover damages for an alleged trespass upon plaintiff’s lands. The facts appear sufficiently in the opinion. Defendant had a lawful right under the deed from plaintiff to do all the acts charged or proved against it.

(Reported below, 8 Hun, 471.) This action was brought to recover the amount of a check for five hundred dollars, dated November 9th, 1872, on the “ Central Bank of Westchester County,” to the order of the plaintiffs, signed “I. H. Mitchell, by C. II. Mitchell, attorney,” indorsed by the plaintiffs, duly presented for payment, payment refused, and protested for non-payment.

This action was brought to recover a balance alleged to be due on the sale of a quantity of wood. In 1870, one Rising, plaintiff’s assignor, and one Wilson, who was the wood measurer of defendant authorized to purchase, measure and accept wood for it, entered into a parol agreement by which Rising agreed to sell and, deliver to defendant 2,000 cords of wood at $4.50 per cord, to be delivered at Rupert.

<p>A submission to arbitrators of an action pending between the parties to the submission, and of “ all other actions or causes of action,” and of “all other matters in controversy,” is a general submission of all questions and controversies between the parties.</p> <p>Where a submission is full and general of all matters in question between the parties, and the intent appears to have everything decided if anything is, a decision of all matters submitted will be imperatively required to validate the award, and an award determining a part only, is void. The omission to insert in the submission, in express terms, an “ ita quoad ” clause, does not make a partial award valid.</p> <p>In cases of doubt, the presumption is in favor of an intention that all matters should be decided.</p> <p>The parties to an arbitration have the right to submit only a portion of the subjects involved, and an award will not be set aside for not including matters not brought to the attention of the arbitrators.</p> <p>It seeing, however, that a partial award in any case will only be sustained when the matters omitted are not necessarily dependent upon and connected with the other points.</p>

James B. Taylor, late of the city of New York, died August 22, 1871, leaving a will by which defendant, Laura S. Taylor, was appointed his executrix. Milton II. Taylor brought suit against said executrix upon negotiable paper made by the deceased and recovered judgment thereon.

Miller, for an order requiring the receiver of The Security Life Insurance and Annuity Company, appointed in proceedings herein, to pay in full claims upon policies issued by said company for losses by death occurring before ■ the appointment of the receiver, prior to payment and distribution of the assets among other creditors.

This action was brought to recover damages for injuries alleged to have been sustained through defendant’s negligence. The facts appear sufficiently in the opinion. Whether the signal given was sufficient was a question of law. (Bradley v. B. & M. R. Co., 2 Cush., 539; Shaw v. B. & W. R. Co., 8 Gray, 45; McGrath v. N. Y. C. & H. R. R. R. Co., 1 N. Y. Supr. Ct.

(Reported below, 9 Hun, 79.) Said Hathaway died in January, 1876, possessed of real and personal property of the value of about $70,000, and leaving a will disposing of his estate. One of the executors named therein was the district attorney of said county, and another was related by marriage to the county judge, who was also surrogate.

This action was brought upon an alleged contract of indemnity. Plaintiff’s evidence tended to establish the following facts: That the Open Board of Stock Brokers of the city of New York, of which he was a member, was a voluntary association of stock brokers, who had signed and agreed to be bound by its constitution and by-laws.

(Reported below, 8 Hun, 395.) This action was brought by plaintiff, the widow of John S. Barry, deceased, to determine her right to two policies of insurance issued by defendant, The Mutual Life Insurance Company, and recover the amount thereof.

(Reported below, 10 Hun, 272.) This was an action for divorce a vinculo, on the ground of adultery. The facts appearing on the motion are sufficiently set forth in the opinion. The marriage having been questioned and not having been proved valid, plaintiff's application was sufficiently answered. (Carpenter v. Carpenter, 19 How., 539.) The marriage was not to be presumed to be valid.

This action was brought to recover for the alleged taking from lands belonging to plaintiffs, near Cohoes and adjoining she Champlain canal, of a quantity of gravel. The facts appear sufficiently in the opinion. The Canal Commissioners were authorized to enter upon and use the plaintiffs’ lands, and the statute under which they acted amply provides for the payment of damages to the owners.

(Reported below, 7 Hun, 568.) This action w§s brought against defendant Robertson as ^xecutor of the will of Martha Becker, deceased, to recover upon an alleged promise to repay an advancement, made by plaintiff to said Martha Becker, and to charge the same upon real estate devised by her to her husband, the defendant Becker.

This action was brought to recover damages for injuries resulting from a collision at a street crossing on defendant’s road, alleged to have been caused by defendant’s negligence. On the 7th November; 1873, plaintiff was driving two horses before a truck on a street, in the city of Albany,' crossed by defendant’s trades. Defendant was required by a city ordinance to keep a flagman at the crossings, and it was its uniform custom so to do.

<p>Where it appears that there has been a complete and full delivery of property, in accordance with the terms of a contract of sale, the title passes, although there remains something to be done in order to ascertain the total value at the rates agreed upon.</p> <p>In an action to recover the alleged contract price for a quantity of lumber sold to defendant, plaintiff’s evidence tended to show that defendant contracted to purchase of plaintiff all the lumber which the latter should deliver at a place designated on the D. river, before the first rafting freshet in the spring; the lumber to be paid for at a price specified for the good and for the culled. Defendant to furnish a man to cull and pile, and the lumber to be counted on the bank, or estimated in the raft. Plaintiff commenced drawing lumber to the place designated, an employe of defendant assisting in culling and piling, but before the lumber so drawn had been counted or estimated, a portion of it was swept away by a flood. Held, that the evidence was sufficient to sustain a finding of a valid delivery and acceptance, and to sustain a recovery; that the contract was not an entirety, and a delivery of the whole amount contracted for was not necessary in order to pass title. Kwn, v. Tapper (52 N. Y., 550); Andrews v. Durant (11 id., 40) distinguished</p>

(Reported below, 3 Hun, 401.) This action was brought to recover back moneys alleged to have been paid to defendant by one Wilber, plaintiff's assignor, under a contract for the sale of 700 shares of the stock of the Albany & Susquehanna Railroad Company, which contract was rescinded by Wilber because of failure on the part of defendant to perform.

(Reported below, 8 Hun, 40.) This action was brought to restrain defendants from selling certain real estate of plaintiff, situate in the village of Portchester, for an unpaid assessment for regulating and grading an avenue in said village. The facts so far as material to the questions discussed are as follows: The trustees of said village commenced proceedings under its charter (chap. 818, Laws of 1868), to regulate and grade said avenue.

888, Laws of 1869.) (Reported below, 10 Hun, 49.) The petition of the drainage commissioners stated among other things that they “ have been and are unable to agree with persons owning said lands, upon the compensation and damages for making and maintaining forever such drains and channels,” but did not state the reasons why they could not agree. The proceedings would be void, unless it appeared on their face that the directions of the statute were strictly pursued.

This action was brought originally by Robert II. Hume, plaintiff's testator, as a judgment-creditor of defendant, William Hanley, and on behalf of all other judgment-creditors, to set aside a conveyance by said defendant to defendant Francis Hanley; and also a conveyance by said grantee to defendant Catharine Hanley, wife of William, upon the ground that the conveyances were made by the parties with intent to defraud the plaintiff and other creditors.

Anderson, as receiver of the Continental Life Insurance Company, to pay to the petitioner, Betsey A. Merrill, the, amount of a check, drawn by said company prior to the appointment of a receiver, in settlement of a claim for a loss. The Continental Life Insurance Company insured the life of Albion C. Merrill, in the sum of $10,000, payable at his death to the petitioner, Betsey A. Merrill.

(Eeportcd below, 6 Hun, 170.) This was an action for the specific performance of a contract for the sale of lands. The facts are sufficiently set forth in the opinion. A party permitting the completion of the performance of a contract after the time for its completion has expired does not forfeit his right to damages.

This action was brought by plaintiffs as judgment-creditors of defendant, Patrick Kehoo, to secure payment of their debt out of property alleged to have been transferred by him by bill of sale to the other defendants in fraud of his creditors. The facts appear sufficiently in the opinion. The court erred in finding that defendants did not take possession of the property.

<p>H. died seized of certain premises subject to a mortgage; he left a will by which he devised his estate, including said premises, to his executors in trust to divide the same into three parts; as to one part he provided as follows: “I direct my said trustees to permit and suifer my son, William B. Slocum, to have, receive and take the rents, issues and profits thereof for the term of his natural life; and after his decease I give, devise and bequeath the same part or share to the heirs-at-law of my said son.” Held, that the trust so attempted to be created was a passive one, and so was invalid; that the son took a life estate, upon which a judgment against him was a lien; that, therefore, the judgment-creditor was a necessary party to an action to foreclose the mortgage; and, he not having been made a party, that a purchaser on foreclosure sale was entitled to be released from his purchase.</p> <p>Verdin v. Slocum (9 Hun, 150) reversed.</p>

(Reported below, 10 J. & S., 91.) The nature of the action and facts are sufficiently set ferth in the opinion. There was a sufficient disclosure by defendant of his principal. (Waddell v. Mordacai, 3 Hill [So. Car.], 22; 2 Kent’s Com., 631; Southwell v. Bowditch, N. Y. Wkly.

(Reported below, 9 Hun, 363.) This was an action to recover for the alleged conversion of a quantity of wheat. On the 9th of November, 1871, Messrs. Nichols, Gibson & Holmer, of Chicago, purchased for “ O. L. Nims, agent,” 14,330 50-60 bushels of No. 3 Chicago wheat.

(Reported below, 10 J. & S., 571.) This action was brought to recover the amount of an alleged lien upon seventy-five barrels of oil, part of 1,169 barrels sold by one Compton to defendants, which off was then held in storage by plaintiffs, subject to a hen as claimed of fifteen dollars per barrel for advances.

This action was brought to recover back a sum of money alleged to have been paid by plaintiff to defendants, on a sale at auction, by the latter as auctioneers, of certain premises in the city of New York, on account of the New York and Harlem Kailroad Company. The sale was made February 7th, 1867. By the terms of sale the seller was to give a good title, free and clear of all incumbrances, and to deliver a deed by March 5th then next.

The application for the writ was opposed upon the grounds, among others, that no proper warrant or draft was presented to defendant authorizing payment by him; also that the claim, if valid, belonged to and was a part of the “ floating debt ” of the village, the payment of which was provided for by the act (chap. 517, Laws of 1875), and that the fund thereby provided was exhausted. The claim of the relator, as established by the board of audit, is conclusive and indisputable.

<p>Appeal from order of the General Term of the Superior Court of the city of Mew York affirming an order of Special Term, directing that defendant Roberts be discharged from arrest, unless plaintiff issue execution against his person within ten days after service of copy of order upon its attorneys.</p> <p>The facts appear sufficiently in the opinion.</p> <p>All proceedings under an execution against the person issued before the return of an execution against' property unsatisfied, are regular and valid, until it is set aside by the court. (Ronick v. Orser, 4 Bosw., 384; Hutchinson v. Brand, 6 How., Pr., 73; 9 N. Y., 208; Hall v. Ayer, 19 How. Pr., 91; Fake v. Edgerton, 3 Abb. Pr., 229; Wells v. Jones, 2 id., 20; Hinman v. Beers, 13 J. R., 529; Bk. of Genesee v. Spencer, 18 N. Y., 154; Smith v. Knapp, 30 id., 584; Goit v. Nat. Pro. Ins. Co., 25 Barb., 189-191.) The order involved only a question of practice and was discretionary, and therefore not appealable to this court. (18 N. Y., 154; Carter v. Loomis, 2 Abb. [N. S.], 295; Desisles v. Cline, 4 Robt., 645.)</p>

<p>In an action to recover for an injury to the freehold, plaintiff must show such title as entitles him to damages, not to the possession merely, but to the freehold.</p> <p>"Where the land has not been occupied, improved or inclosed, and reliance is placed solely upon paper title, the proof must be of a chain of title from the original patentee or donee.</p> <p>A deed from a person not in possession, or not shown to be the owner, establishes no title.</p> <p>The possession unaccompanied by paper title, requisite to furnish the presumption of ownership sufficient to maintain the action, must be actual.</p> <p>In case of land unoccupied, unimproved and uninclosed, suck possession may be made out by showing that the lot is kept as, and is a wood-lot of suitable size for an improved farm, and that the owner of the farm has habitually for some years cut thereon his firewood, saw-logs, fencing and building timber.</p> <p>Evidence of merely occasional entries at long intervals upon the lot, where it is not parcel of an improved farm or connected with one, is not sufficient to establish the requisite possession.</p> <p>So, also, payment of taxes on the lot is no evidence of possession.</p> <p>It seems, that in the case of uninclosed, unoccupied woodland it is incompetent to ask a witness whether he was in possession of the land; the facts should be shown which in law constitute possession.</p> <p>Miller v. L. 1. JR. JR. Co. (9 Hun, 194) reversed.</p>

<p>In an action to recover possession of a quantity of cheese it appeared that prior to October, 1870, defendant A. and the defendants L. had been engaged in purchasing cheese on joint account; A. making the purchases and shipping to the L.s at New York. A. had made various purchases of the D. O. C. F. Co. (of which company plaintiff was treasurer), always paying cash. In October, 1870, A. contracted with plaintiff for the purchase of the cheese in question, the negotiations being conducted in the same manner as before ; plaintiff understanding the purchase to be on the same account, and that the cheese was to be similarly consigned. It Was delivered at a railroad depot and shipped, A. falsely representing that the money was on the way from New York to pay therefor; nothing was said on the subject of a credit. A. also by false representations to the depot agent, and without the knowledge of plaintiff, procured the cheese to be shipped to the defendants L. in the name of G. W. M. & Co., as owners and consignors, a firm in which A. was a partner, which was at the time insolvent, and whose business was nearly closed; it did not appear that plaintiff had any knowledge of the existence of such firm. On receipt of a telegram from G. W. M. & Co., sent before the cheese was shipped, announcing shipment, the L.s advanced $5,000 thereon. The cheese was received by the L.s, who, when it was demanded by plaintiff, repudiated any interest in the purchase, and claimed that the sale was to G. W. M. & Co., for whom they had sold it, and to whom they had made advances thereon. Held, that the L.s were estopped from claiming by virtue of a sale to them on credit, and as between the parties, plaintiff was the owner, unless the sale was to G. W. M. & Co.; and that upon this question the evidence fully justified a finding for plaintiff.</p> <p>Also, held, that the evidence justified a finding that the sale was for cash, and that plaintiff did not intend to part with the title until the purchase-price was paid; also that the evidence was sufficient to show the delivery was obtained by fraud, and so that plaintiff was entitled to rescind and to reclaim the property.</p> <p>The L.s claimed that they had sold and delivered the cheese to S., a bona fide purchaser, before demand. They had advised S. that they had purchased for him, the cheese was deposited in a warehouse containing other cheese belonging to S., but the receipts therefor and the insurance were in the name of defendants. The purchase was not entered in defendants’ books until after the demand, and S. had paid nothing on account. The L.s also executed the required security and retook the cheese from the sheriff; held, that the evidence failed to show any transfer of title to S.</p> <p>Also, held, that the L.s could claim no lien for advances to G. W. M. & Co. Also, held, that defendants were entitled to no allowance and could claim no lien on account of freight.</p> <p>The “ Factor’s act ” (chap. 179, Laws of 1831), has no application to such case. It only applies where a shipment of property is made with the consent of the real owner in the name of another, thus conferring upon the latter apparent ownership and right of control, and whgre innocent parties, on the faith of the evidence thus furnished, have made advances on the property.</p>

The nature of the action and the facts are sufficiently set forth in the opinion. At the close of the evidence on the trial, the defendant's counsel moved to dismiss the complaint, which was denied, and said counsel duly excepted.

This action was brought against defendant as indorser of certain promissory notes made by one Devenport and discounted by plaintiff. The defendant was an accomniodation indorser, which the plaintiff knew when it diséounted the notes.

This action was brought upon a bond executed by the defendant to obtain the release of a steam canal boat from a warrant issued under the act providing for the collection of demands against ships and vessels.

The nature of the action and the facts are set forth sufficiently in the opinion. The complaint should be dismissed for the reason that the contract was void under the statute.

The deceased died leaving a widow and no children. He left a will, a portion of which was declared invalid, and a large portion of his estate was left to be distributed under the statute. The facts appear sufficiently in the opinion. The evidence from which the legitimacy of Simon might have been presumed, was overcome by the opposing evidence, and taken together, the evidence established that Benjamin Chamberlain was lawfully married to Sally Keyes.

(Reported below, 9 J. & S., 489.) The judgment, among other things, enjoined and restrained defendant from building its contemplated road upon Sixth avenue. Defendant appealed from the judgment, and upon motion procured an order staying all proceedings on the part of plaintiff in execution of the judgment pending the appeal, upon execution of an undertaking for the payment of damages occasioned by the stay.

<p>A check given to carry out an agreement made in contravention of the provision of the Bankrupt Act (section 45), prohibiting officers of courts in bankruptcy from taking anything other than the fees allowed by the act for acts done under it, is not absolutely void; notwithstanding the illegality of the consideration, it is valid in the hands of a bona fide holder for value, taking it, before it is dishonored, without notice of its illegality.</p> <p>The burden of showing that the transferee had notice of the infirmity in the paper is upon the party seeldng to impeach his title.</p> <p>The date of a check is prima fade evidence of the time it was made and had its inception; and, if found in the hands of the payee or a thirS person for a considerable time (in this case fourteen months) sfev ii'-: date, will be deemed to. be discredited, a party taking it is put tspsn inquiry, and, in the absence of explanation, takes subject to any defense existing as between the payee and drawer.</p> <p>A check, however, has no inception until delivery, and for all legal purposes is to be considered as made on the day it is delivered; where the date and the time of delivery are not the same, the latter may be shown in answer to any such defense: a party negotiating for it, who ascertains that the check was in fact delivered on the day it is offered to him, is not bound to go further and inquire as to any other objection to it; and if he takes it bona fide, for value, without notice of illegality or other defense, and it appears that it was in fact delivered on the day it was negotiated, he stands in no worse position than if he had first inquired and been informed of this fact.</p> <p>Where, therefore, a check is delivered by the drawer to the payee long after its date, and is upon the same day transferred by the latter to a bona fide purchaser for value without notice of any defense, it is valid in his hands, notwithstanding a defect or illegality in the consideration, which would be a good defense as between the drawer and payee.</p> <p>Accordingly, held, where, in pursuance of an arrangement between an assignee in bankruptcy and creditors, a check for additional compensaron over and above his fees, dated on the day it was made, was deposited with a third person, to be delivered to the payee when he was discharged from his position as assignee, which check remained in the hands of the depositary for fourteen months, and was then delivered upon the order of the payee, on the day the latter was discharged as assignee, to a bona fide purchaser from him for value, that the check had inception only on delivery, and that in the absence of evidence of notice to the purchaser of any defense he, or his transferee, could, upon its being presented for payment and dishonored, enforce it against the drawer.</p> <p>Gaming v. Altman (5 Hun, 556) reversed.</p>

(Reported below, 8 Hun, 136.) This action was brought to recover damages for injuries alleged to have been occasioned by defendant’s negligence. The facts sufficiently appear in the opinion. Upon the facts proved, the plaintiff’s attorneys had no interest or hen upon the cause of action which entitled them to the relief sought.

<p>A policy of insurance upon a ship, as it appeared in the record in an action upon it, contained the usual terms, covenants and conditions, used in policies on voyages from port to port, the names of the ports, were however left in blank, the risk was described as “port-risk in the port of Mew York.” Held, that it was to be presumed that a common printed form designed for voyage policies was used, but that the parties did not intend, and the insurer did not take a risk for a voyage; that the written words “port-risk in the port of Mew York” controlled the printed part of the policy, and limited and defined the risk insured against.</p> <p>Also held, that the term “port-risk” was a technical term, the meaning of which, as used by underwriters in policies of Marine Insurance, might be proved by experts in the business.</p> <p>The testimony of experts on both sides concurred, and was to the effect that the term “ port-risk ” meant a risk upon a vessel while lying in port, and before she had taken her departure on another voyage. It appeared that the vessel cleared for another voyage, and left the pier at which she was lying in tow of a tug, for the purpose of proceeding upon the voyage; a short distance from the pier she struck a rock and was injured; held, that as the vessel had taken her departure, and begun her voyage when the accident happened, the policy had ceased to be operative; and that the complaint was properly dismissed.</p> <p>The distinction between the proof of a usage and proof by experts of the meaning of a technical term or phrase pointed out.</p> <p>A merchant, called as a witness by plaintiff, testified in substance that he was more or less acquainted with procuring marine policies; that he knew of the phrase “ port-risk in the port of Hew York,” but that he had never seen the words “port-risk,” or known, of its use in a policy or an application for one; he did not testify to any knowledge derived from study as to the meaning of technical terms used in Marine Insurance. The witness was then asked the meaning of the phrase, and the evidence was excluded; held, no error; that the witness did not show such knowledge as qualified him to speak as an expert.</p> <p>Whether one offered as an expert is qualified to speak as such is a fact preliminary to his testifying, to bedetermind by the court upon the trial.</p> <p>Whether the decision of the trial court is reveiwable here, quasre.</p>

(Reported below, 7 J. & S., 109.) This action was brought to recover a quarter’s rent, alleged to be due November, 1, 1871, under a lease from plaintiff to defendant. By the terms of the lease' plaintiff demised to defendant, for the term of eight years, beginning May 1st, 1871, the hotel building known as the Prescott House, in the city of New York, and the five upper stories of buildings to be erected on the adjoining lots, known as 97 and 99 Spring street.

(Reported below, 7 Hun, 295.) This action was brought against defendants as sureties upon an undertaking upon appeal from a judgment in favor of plaintiffs against one Henry S. Leszynsky. The undertaking was that appellant would pay all costs and damages awarded against him on appeal, not exceeding $500; and in case the judgment appealed from was affirmed in whole or in part, or the appeal dismissed, that he would pay the amount directed to be paid.

This action was brought to recover damages for injuries to plaintiff’s horse, alleged to have been occasioned by defendant's negligence. Defendant pleaded the statute of limitations. The facts appearing in reference thereto are sufficiently stated in the opinion. The court directed a verdict for defendant. Exceptions were ordered to be heard at first instance at General Term.

(Reported below, 9 Hun, 443.) This action was brought to set aside a statute foreclosure of a mortgage upon premises described in the complaint, for an accounting for rents and profits, for a determination as to the rights and interests of the parties in the premises, and for partition. The plaintiff claimed as heir-at-law of Christian Barnhart, . deceased, the defendants were the widow of the deceased and the other heirs-at-law.

(Reported below, 10 Hun, 545,) A petition was presented to the court, upon due notice to the board of supervisors, alleging that the petitioners had been illegally and improperly assessed for $10,000 personal property, which they did not own or possess, and had been compelled to pay thereon a tax of $600.40.

(Reported below, 4 Hun, 765.) This action was brought to recover damages alleged to have been sustained by plaintiff, when alighting from a train on defendant’s road through its negligence. The facts appear sufficiently in the opinion. The judge did not err in ruling that the fact that the train ran past the station was not evidence of negligence on the part of defendant.

The objection to the assessment was that no petition of the land-owners was presented for said work, nor any resolution by the board of health, or common council acting as a board of health, determining that said work was necessary. Further facts appear in the opinion. Section 36 of the act of 1874 (chap. 589), cannot be confined to assessments de jure, or to such as were at the time of its passage regular and valid; it refers to assessments defacto.

(Reported below, 7 Hun, 73.) The nature of the action and the facts are sufficiently set forth in the opinion. The common-law rule applicable to the sovereign power of the State does not apply to a mere municipal corporation. (14 Alb. L. J., 69, 100, 113, 118, 177.) A mechanic’s lien could not be enforced against the defendant’s property. (Poillon v. Mayor, etc., 47 N. Y., 666 ; Brinckerhoff v. Board of Education, 37 How.

This action was brought to recover back a payment of ten per cent, of the purchase-money paid by plaintiffs upon purchase by them at auction from defendants, as assignees for the benefit of creditors, of certain real estate in the city of New York.

Appeai, from judgment of the General Term of the Court of Common Pleas, in and for the city and county of Hew York, affirming a judgment in favor of plaintiff entered upon a verdict. This action was brought upon a policy of fire insurance.

(Eeported below, 7 Hun, 452.) This action was brought upon two interest coupons upon a railroad bond, executed by three commissioners appointed for defendant, under and in pursuance of the act chapter 553, Laws of 1868.

Appeals from judgments of the General Term of the Supreme Court, in the third judi.ci 1 department, in favor of defendants entered upon orders denying motions for new trials, and directing judgments upon orders nonsuiting plaintiffs upon the trials.

(Reported below, 11 Hun, 336.) The indictment charged plaintiff in error with the breaking and entering, in the night time, “ the dwelling-house of Frederick Iiohnsen and JohnF. Lubkin, being copartners in business under the firm-name and style of Iiohnsen & Lubkin.” Iiohnsen & Lubkin were partners as alleged, and held and occupied two adjoining buildings, the lower stories of which they used and occupied as stores for the purposes of their business.

This action was brought to recover damages for injuries alleged to have been sustained by plaintiff’s canal boat, through the negligence of defendant. It appeared on the trial that defendant had been employed to tow plaintiff’s boat from New York to Bridgeport. The boat was taken by one of defendant’s tugs from New York to Port Morris, on the East river, where tows going east, up the Sound, ivcre usually made up. They arrived at Port Morris toward sundown, at a flood-tide.

<p>A municipal corporation is not liable for the acts or omissions of an officer elected or appointed by it, in respect to a duty specifically imposed upon the officer, which is not connected with his duties as agent of the corporation, and in which it has no private interest. It is only liable for the acts or omissions of officers in the performance of duties imposed upon the corporation.</p> <p>The complaint in this action alleged, in substance, that by “an act to improve the Growanus canal, in the city of Brooklyn ” (chap. 678, Laws of 1866), and the acts amendatory thereof (chap. 884, Laws of 1867, chap. 793, Laws of 1869), commissioners were .appointed to dock the sides of said canal, the expense to be assessed upon the property; that the commissioners caused docks to be erected “in and upon plaintiff’s land adjacent to said canal,” but prosecuted the work so negligently that the dock sank; that by an act passed in 1871 (chap. 839, Laws of 1871), it was provided that the common council of the city should cause the docks to be repaired or rebuilt at the expense of the city; that thereby the duty to rebuild the dock on plaintiff ’s land was imposed upon the city, which it had neglected to perform, to his damage, etc. Upon demurrer to the complaint, held, that the court could not take judicial notice that the canal was a public highway, and in the absence of allegations to that effect could not presume it to be such-; that so far as appeared the work was for the benefit of individuals solely; that it appears by the amendatory act of I860 to have been the intention of the Legislature to substitute the common council for the commissioners, without affecting the relations of the city to the work; that both bodies were to be regarded as agents of the State, not of the city, and for their acts or omissions the city was not liable j that the act of 1871 did not impose the duty of rebuilding upon the city, but the directions therein to the common council, it was to be presumed were given to them as State agents, and that therefore the city was not liable; also held, that the fact that the expense of rebuilding was cast upon the city did not affect its liability.</p>

This was an appeal from a judgment of General Term, affirming in part a decree of a surrogate upon the final accounting of appellant as administrator of the estate of John S. Wright, deceased. Held: error.