Volume 72 — New York Reports

<p>An order of the County Court, under the Drainage Act (chap. 888, laws of 1869, as amended by chap. 303, Laws of 1871), auditing and confirming the accounts of commissioners appointed under said act, is appealable to the General Term of the Supreme Court upon questions of law.</p> <p>The provision of said act ($ 12), making the decision of the County Court final, only applies to and makes the order final upon matters of fact.</p> <p>Such an order is a final order in a special proceeding, affecting a substantial right, and so is re viewable here.</p> <p>The commissioners, authorized to be appointed under and by said act, are officers included in one or the other of the classes whose election or appointment is, by the Constitu.ion (art. 10, § 2), left under the control and direction of the Legislature, and the provision of said act, as to their appointment, is in accordance with the constitutional requirement.</p> <p>"Whether the provision of said act (§ 17) authorizing the commissioners appointed by a county judge to act in more than one county is valid, qiuere.</p> <p>If invalid, it is separable from the other provisions, and does not invalidate the appointment by a county judge of commissioners to act solely in and for his own county.</p> <p>That act is not violative of any constitutional provision. It does not authorize the taking of private property for a private use; the object for which drainage may be had and lands taken, under the act, is solely the public health, and this is a public purpose. It does not infringe the constitutional provision prohibiting the taking of property without “ due process of law:” (Art. 1, § 6), the property of the citizen is reached under the act in two ways only, by assessment, a mode of exercise of the power of taxation, and so- constitutional, and by taking land needed, and making compensation, which is not violative of the constitutional provision.</p> <p>Where a judicial officer has not such an interest in a cause or matter as that the result must necessarily affect his personal or pecuniary interest, or where his interest is minute, and he has so exclusive a jurisdiction, by Constitution or statute, that his refusal to act in the cause or matter will prevent any proceeding in it, he may act so far as that there may not be a failure of remedy.</p> <p>The provision of the statute (2 R. S., 275, § 7) declaring that no judge shall sit in a case where he is interested, is as much affected by the necessity existing or created by the conferment of exclusive jurisdiction by another statute as is the similar rule of common law.</p> <p>Accordingly, held, that prior to the passage of the amendatory act of 1871 (j 4, chap. 303, Laws of 1871), vesting in the County Court the powers conferred by the original act upon the county judge, a county judge was not disqualified from making an order appointing commissioners under said act, although it appeared by the petition that he was interested in the matter as owner of lands to be affected.</p> <p>In such case neither the provision of the Constitution (art. 6, $ 15) providing that the county judge of one county may hold county courts in other counties, nor the provision of the Code (§ 30, sub. 13), providing for certifying actions or proceedings in the County Court to the Supreme Court, applied.</p> <p>The authorities as to disqualification of judges because of interest, both at common law and under the statute, collated and discussed.</p>

<p>Appeal from judgment of the General Term of the Supreme Court, in the?first judicial department, affirming a judgment in favor of plaintiff, entered upon a verdict, and affirming an order denying a motion for a new trial. (Mem. of decision below, 9 Hun, 347.)</p> <p>The nature of the action and the facts are sufficiently set forth in the opinion.</p> <p>The court erred in admitting in evidence against defendant's objection the order for the goods. (Russell v. H. R. R. R. Co., 17 N. Y., 134; Huff v. Bennett, 6 id., 335, 339; Sackett v. Spencer, 29 Barb., 180; Meacham v. Pell, 51 id., 65; Juniata Bank v. Brown, 5 S. & R., 231; Smith v. Lane, 12 id., 87.) The contract was void under the statute of frauds. (3 R. S. [5th ed.], 221, § 3; Baldy v. Parker, B. & C., 37, 44; Cross v. O'Donnell, 44 N. Y., 661; Shindler v. Houston, 1 id., 273; Stone v. Browning, 51 id., 211; Kent v. Hutchinson, 3 B. & P., 233, 235; Outwater v. Dodge, 6 Ware, 397; Hanson v. Armitage, 5 B. & Ald., 557; Acebal v. Levy, 10 Bing., 376, 384; Hunt v. Hecht, 8 Exch., 813, 817; Hewes v. Jordan, 39 Ind., 481; Johnson v. Dodgson, 2 M. & W., 655; Smith v. Hudson, 6 B. & S., 431, 448; Norman v. Phillips, 14 M. & W., 277, 283; Cussack v. Robinson, 1 B. & S., 297, 305, 306; Meredith v. Weigh, 2 E. & B., 363, 371; Hart v. Bush, E. B. & E., 492, 496; Johnson v. Cuttle, 105 Mass., 447, 449; Benj. on Sales [1st Am. ed., 1875], 160; Rodgers v. Phillips, 40 N. Y., 519; Grimes v. Van Vechten, 20 Mich., 412.) The burden of showing that the contract was valid by the law of Mississippi was upon plaintiff. (Thatcher v. Morris, 1 Kern., 437, 439; McBride v. Farmers' Bank, 26 N. Y., 450, 457; Hodges v. Ins. Co., 4 Seld., 421; Monroe v. Douglass, 1 id., 452; Leavenworth v. Brockway, 2 Hill, 201; Allen v. Watson, 2 Hill [So. Car.], 31; Mason v. Wash., 1 Ill., 39.) The verdict should be set aside as being against the weight of evidence. (Norman v. Phillips, 14 M. & W., 277; Townsend Manuf. Co., v. Foster, 51 Barb., 346.)</p> <p>Our courts cannot take judicial notice of any of the laws of sister States at variance with the common law. (C. & H. Notes to Phil. Ev., part 2, p. 1138, note 776; Holmes v. Broughton, 10 Wend., 75, 78; White v. Knapp, 47 Barb., 554.) The burden of proof was upon defendant to show that the contract was invalid. (1 Kern., 437; 26 N. Y., 450; 4 Seld., 421.) There was no error in receiving in evidence the original order for the goods, the list given to the packer, and the copy of the original order. (Guy v. Mead, 22 N. Y., 466; McCormick v. P. A. C. R. R. Co., 49 id., 303; Halsey v. Sinsebaugh, 15 id., 485, 487; Mardy v. Shultz, 29 id., 346, 351.)</p>

This action was brought to recover the value of an ice-house and contents alleged to have been destroyed by fire by reason of defendant’s negligence. The facts are sufficiently stated in the opinion. The city ordinance was improperly received in evidence, it being irrelevant and incompetent.

Matteson for costs and expenses alleged to have been incurred by him as indorser upon the notes of James B. Taylor, deceased. (Reported below, 11 Hun, 274.) This action was brought to marshal the assets of the estate of said deceased, and to distribute them among the creditors.

This action was for slander; for words alleged to have been spoken of plaintiff by defendant, Martha Hill, wife of George Hill, the other defendant, charging plaintiff with want of chastity and with illicit intercourse with said George Hill. The facts appear sufficiently in the opinion. Defendant had a right to prove in mitigation of damages facts and circumstances which disprove malice, although they tended to establish the truth of the defamatory charge.

This action was brought to recover damages for the alleged malicious acts of the defendant in drawing off water from plaintiff’s well, and to enjoin the commission of further similar acts. The court found substantially the following facts : The parties were the owners of adjoining premises in the village of Avon.

(Reported below, 9 Hun, 669.) This action was brought to recover damages alleged to have been sustained by defendant’s negligence. The complaint alleged in substance, and plaintiff’s evidence tended to show, that on November 9, 1871, he was a passenger on one of defendant’s trains from New Haven to New York, which train arrived in New York between 5 and 6 a. m. The cars ivere detached at Forty-second street, and drawn down to the depot by horse-power.

(Reported below, 8 Hun, 587.) This action was brought to recover damages alleged to have been sustained by plaintiff, by reason of the wrongful diversion and conducting upon plaintiff’s premises of surface water, by defendant in grading its streets. Plaintiff obtained judgment for $328.42.

(Reported below, 9 Hun, 394.) This action was brought to recover of defendant the amount of a judgment, paid by it, recovered by one Anthony McNeiss against plaintiff, for injuries sustained by reason of obstructions upon one of the city streets. The facts appear sufficiently in the opinion. The city ordinances were improperly received in evidence.

t. -Appeal by defendants, Henry and Betsy Moyer, from judgment of the General Term of the Supreme Court, in the third judicial department, affirming a judgment in favor of plaintiffs, entered upon the report of a referee. (Reported below, 9 Hun, 473.) The nature of the action and the facts are set forth sufficiently in the opinion. The proceedings in bankruptcy, the assignment, and the bankrupt’s discharge were a bar to plaintiffs’ right of recovery.

<p>Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, affirming a judgment in favor of plaintiff, entered upon a verdict, and affirming an order denying a motion for a new trial. (Reported below, 7 flun, 629.)</p> <p>The nature of the action and the facts are set forth sufficiently in the opinion.</p> <p>The admission of evidence, after it appeared that the note was given for land conveyed to defendant by plaintiff, showing, or tending to show, that plaintiff’s husband furnished the money originally invested, was error. (Schoonmaker v. De Witt, 17 J. R., 304; Worth v. Case, 42 N. Y., 362, 369; Tibbits v. Ayer, H. & D. Sex., 174; Turnbull v. Osborne, 12 Abb. Pr. [N. S.], 200; Kinsman v. Birdsall, 2 E. D. S., 395; Lake v. Tyson, 6 N. Y., 461; Defreest v. Bloomingdale, 5 Den., 304; Gould v. Chase, 16 J. R., 26; Cruger v. Armstrong, 3 J. Cas., 5; Conroy v. Warren, id., 259; Seely v. Engell, 17 Barb., 530; James v. Chalmers, 6 N. Y., 209; Dolfus v. Frasch, 1 Den., 367; Potter v. Chodsey, 16 Abb. Pr., 146; Dubois v. Hull, 43 Barb., 26, 32; Dooley v. Wolcott, 4 Al., 406; Best on Ev., 678 [m. p.] Wood’s ed; 1 Greenl. on Ev., § 275 [13th ed.]; Webb v. Rice, 6 Hill, 219; Halliday v. Hart, 30 N. Y., 474, 493; Durgin v. Ireland, 14 id., 322, 325, 326; Cook v. Eaton, 16 Barb., 439; Sturtevant v. Sturtevant, 20 N. Y., 39; First Bap. Ch. v. B’klyn F. Ins. Co., 28 id, 153.) The court erred in refusing to charge that it was immaterial from whence the money for the original investment came, and that if a note was given to plaintiff’s order, it was her property, and in charging the converse of this request. (2 R. S., 1105, 1106 [6th ed.], 51, 52; Garfield v. Hatmaker, 15 N. Y., 475, 478; Everitt v. Everitt, 48 id., 218;. Brown v. Cherry, 59 Barb., 638; McCartney v. Bostwick, 32 N. Y., 53, 59; Foote v. Bryant, 47 id., 544, 548, 549; Jencks v. Alexander, 11 Paige, 619; Siemons v. Schurck, 29 N. Y., 598, 610, 611; Carr v. Carr, 52 id., 251, 260; Ocean Nat. Bk. v. Olcott, 46 id., 12-16; Ludlam v. Ludlam, 26 id., 356, 360; Wright v. Sadler, 20 id., 320; Leggett v. Dubois, 5 Paige, 114; Phillips v. Cramond, 2 Wash. [C. C.], 441; Proseous v. McIntyre, 5 Barb., 425; 1 Story’s Eq. Jur., § 371; Baldwin v. Camfield, 4 Halst. Ch., 891; Han Zandt v. Davis, 6 Ohio [N. S.], 52; Jackcson v. Forrest, 2 Barb. Ch., 576; Alsworth v. Cordty, 31 Miss., 32.) A trust cannot be fastened upon an absolute conveyanee by evidence that the grantee paid no consideration. (Rathburn v. Rathburn, 6 Barb., 98, 105, 106; Dyer v. Dyer, 1 W. & T. L. Cas. on Eq., 356; Squire v. Harder, 1 Paige, 594; 2 R. S., 135, § 6; Dubois v. Hull, 43 Barb., 26, 32; Dooley v. Wolcott, 4 Al., 406; Rest on Ev. [Wood’s ed.], 678, m. p.) The facts that plaintiff was the wife of the one who paid the consideration for the land sold, and that the land has been sold and a note taken for a part of the purchase-price, do not affect the question. (15 N. Y., 475; 11 Paige, 619; Curtis v. Fox, 47 N. Y., 299; Phillips v. Wooster, 36 id., 412; City Bk. v. Perkins, 29 id., 554; Rynders v. Crane, 3 Daly, 339; Rawson v. Penn. Cent. R. R. Co., 48 N. Y., 212; Wolfe v. Scroggs, 4 Abb. Ct. of App. Dec., 635.) Plaintiff’s husband could only be shown to be her agent by proving that she had permitted him to hold himself out as such, and defendant had been thereby misled. (Brindendecker v. Lowell, 32 Barb., 9, 17, 18; Murphy v. Winchester, 35 id., 616; Story on Agency, §443; Morey v. Webb, 58 N. Y., 350.) The fact that the husband made the bargain for the land, and received the money paid, was no evidence that he was defendant’s agent to receive the money on the note. (Doubleday v. Kress, 50 N. Y., 410; Hutchings v. Munger, 41 id., 155; Higgins v. Moore, 34 id., 417; Story on Agency, § 98.) The court erred in refusing to charge that the absence of the note when paid put the maker on inquiry as to the husband’s authority, and payment was therefore not good against plaintiff. (War drop v. Dunlap, 1 Hun, 325 ; Doubleday v. Kress, 53 N. Y., 410 ; Van Alstyne v. National Commercial Bank, 7 Tr. App., 24.)</p> <p>Defendant had a right to show that the cause of action did not exist in plaintiff. (Cummings v. Morris, 25 N. Y., 632; Brown v. Richardson, 20 id., 474; Clement v. Adams, 12 How., 164; White v. Brown, 14 id., 284; Billings v. Jane, 11 Barb., 620; Marsh v. Hoppock, 3 Bosw., 478.)</p>

<p>Appeal from order of the General Term of the Supreme Court, in the first judicial department, reversing a judgment in favor of plaintiffs entered upon the report of a referee and granting a new trial. (Mem. of decision below, 7 Hun, 233.)</p> <p>■This action was brought to recover for loss and damage to a quantity of cotton shipped by defendant’s road from Memphis "to New York. The evidence shows that on February 17, 1868, at the city of Memphis, one Rossel was the owner of 406 bales of cotton; on that day he made a verbal arrangement with the general freight agent of the defendant, at that place, as to the rate of freight for the transportation of said cotton from Memphis to the city of New York. On the eighteenth of February, Rossel delivered the cotton to defendant; and after the delivery, but on the same day, received triplicate bills of lading, similar in form to those which had been used on defendant’s road for cotton carried through by them since December, 1866. Eossel was a business man in the city of Memphis, and had, on the fifteenth of January previously, shipped over the road 150 bales of cotton on a bill of lading containing the same clauses and stipulations which were in the bills above mentioned. One of the clauses exempted defendant from liability for damages by fire. On the same day, after the receipt by him of the bills of lading, Eossel effected an insurance with plaintiffs upon the cotton, by the terms of which the insured agreed to assign to plaintiffs all claims against the carriers for loss or damage by fire. The referee finds that the cotton left Memphis the eighteenth or nineteenth of February. The cotton was damaged, and in part destroyed by fire while in transit; Eossel assigned his claim against defendant to plaintiffs. Eossel testified that the printed clauses and conditions of the bill of lading were not read to him at the time of the delivery thereof to him, and that he did not himself read them. ISTo objection was made to them by him, and the bills of lading were retained until after the fire.</p> <p>The fact that in previous bills of lading received by Eossel the clause exempting the carrier from liability for loss by fire occurred did not affect the present contract by parol. (Bostwick v. B. & O. R. R. Co., 45 N. Y., 712; Clyde v. Graver, 54 Pa., 251; Hill v. R. R. Co., 8 Hun, 296; Coffin v. R. R. Co., 64 Barb., 379, 56 N. Y., 632; Strohn v. R. R. Co., 21 Wis., 554; Perry v. Thompson, 98 Mass., 249.) Even upon the assumption that the bill of lading was delivered on the contract of shipment, the plaintiffs would be entitled to recover. (Hall v. R. R. Co’s, 13 Wal., 367.)</p> <p>The bill oí lading was controlling in this case. (50 N. Y., 76.) A common carrier may limit his liability, except as to negligence, by agreement, though not by notice. (Kirkland v. Dinsmore, 62 N. Y., 171; Mangin v. Dinsmore, 56 id., 168, 171; Nelson v. H. R. R. Co., 48 id., 498; York Co. v. Cent. R. R. Co., 3 Wal., 107, 111; R. R. Co. v. Mfg. Co., 16 id., 318, 328; N. & C. R. R. Co. v. Jackson, 6 Heisk., 269, 275; S. & N. A. R. R. C. v. Henlein, 52 Ala., 606; R. R. Co. v. Lockwood, 17 Wal., 357; Bk. of Ky. v. Ad. Ex. Co., 3 Otto, 174; Long v. N. Y. C. R. R. Co., 50 N. Y., 76; Pindar v. Rens. F. Ins. Co., 47 id., 114; Breeze v. U. S. Tel. Co., 48 id., 132; Belger v. Dinsmore. 51 id., 166; Steers v. N. Y. & P. S. Co., 57 id., 1, 5; Grace v. Adams, 100 Mass., 505; York v. N. & B., R. W. v. Crisp. & T., 23 L. J. [N. S.] C. P. 125; Stewart v. L. &. N. W. R. Co., 33 L. J. [N. S.] Ex., 199; Dorr v. N. J. S. Co., 1 Kern., 485; Man. Oil Co. v. C. & A. R. R. & T. Co., 54 N. Y., 197; Wetzell v. Dinsmore, id. 496; Shelton v. Mer. Dis. Tr. Co., 59 id., 258; Bostwick v. B. & O. R. R. Co., 45 id., 712; Mer. Mut. Ins. Co. v. Calebs, 20 id., 173, 176, 177.) The burden of proving negligence was upon plaintiffs. (Cochran v. Dinsmore, 49 N. Y., 249; Westcott v. Fargo, 63 Barb., 349; Tr. Co. v. Downer, 11 Wal., 129; French v. B., N. Y. & E. R. R. Co., 4 Keyes, 108.)</p>

(Reported below, 9 Hun, 1.) This was an action of ejectment to recover a narrow strip of land on the northerly side of a mill-race in the village of Oneida. Both parties claimed title under the same grantor.

The nature of the action and the facts appear sufficiently in the opinion. The liability of the stockholders of a corporation, the stock of which has not been paid in, was not created by the statute. (Corning v. McCullough, 1 N. Y., 47; Worrall v. Judson, 5 Barb., 200; Abbott v. Aspinwall, 26 id. 202; Conklin v. Furman, 57 id., 484; Wickson v. Nesmith, 46 N. H., 371; Colman v. White, 14 Wis., 700.) Debt is the proper form of action against stockholders.

(Reported below, 9 Hun, 263.) This action was brought to have three promissory notes made by plaintiff payable to his own order, and indorsed by him, declared void for usury, to compel a cancellation thereof and return of certain stock pledged as collateral, and for an injunction, receiver, etc. The notes were delivered by plaintiff to Bound & Co., note-brokers in the city of Hew York, of whom plaintiff had been in the habit of purchasing commercial paper to a large amount,…

(Reported below, 9 Hun, 37.) ■This action was brought upon a policy of lire insurance issued by defendant. The defense was an alleged forfeiture of the policy by violation of conditions therein. The facts sufficiently appear in the opinion. The premises insured having become “vacant and unoccupied,” under the provisions of the policy, it was rendered void. (Keith v. Q. F. Ins. Co., 10 Al., 228; Paine v. Ag. Ins. Co., 5 N. Y. S. C. R., 619; Harrison v. City F. Ins.

This was an action to recover for professional services as attorney. The complaint contained two counts, both of which were put in issue. The jury found separately as to each, assessing plaintiff’s damages under the first count at $140.50, and under the second at $393.34, rendering a general verdict for both sums, to wit, $533.84.

<p>The Legislature has power to provide for the manner in which the result of an election shall be determined and declared, and their enactment in reference thereto is binding.</p> <p>Under the provisions of the charter of the city of Cohoes (chapter 912, Laws of 1869, as amended), the declaration and certificate of the common council, prescribed by section 10, as to the person duly elected, are necessary to complete the election of a ward officer as well as a general officer of the city, and are indispensable to qualify the candidate to enter upon the duties of his office.</p> <p>Said section applies to aldermen; and until an election is thus completed, and the new board of aldermen thus become duly qualified, the old board continue in office, and are entitled to act in the discharge of any business appertaining to the office.</p> <p>In March, 1874, defendant was duly appointed by the common council chamberlain of said city, for the term of two years; no successor having been appointed at the expiration of that term, he held over. On March 13th, 1877, which was the first Tuesday after the annual election of that year, the common council met, the members of the old board of aldermen meeting and being recognized as members thereof; and before any announcement was made that new aldermen had been elected or claimed recognition as such, or had taken the oath of office, and without objection, a resolution was passed reappointing the defendant as chamberlain, who took the oath of office and filed the required bond, which was approved by the mayor. The common council thereafter coavened as a board of canvassers, received the statements of the inspectors and declared and certified the election of the new officers, including aider-men. At a subsequent meeting of the common council, composed in part of the newly elected members of the board, a resolution was passed appointing the relator as chamberlain; held, that defendant was duly appointed and was entitled to the office.</p>

The nature of the action and the facts appear sufficiently in the opinion. Plaintiff’s sale of the property at private sale to defendant, after having reduced it to possession, cannot be turned into an election to sell and authorize him to charge expenses of taking care of it in the meantime.

<p>An agreement for a new lease will not effect the surrender of an existing lease by operation of law, unless a new lease is made, valid in law to pass an interest according to the contract and intention of the parties.</p> <p>A verbal agreement, therefore, for a term longer than one year, will not operate as a surrender of an existing lease under seal.</p> <p>In an action to recover rent alleged to be due under and by the terms of a lease under seal for ten years, defendants gave evidence tending to show that after the expiration of three years of the tenancy, the parties agreed by parol that the rent should thereafter be reduced §1,000 per annum, and that the lessor should have the right to terminate the lease upon giving three months’ notice. Held, that, assuming the agreement to be valid, it did not constitute a now lease, but was simply a modification of the terms of the original demise, leaving all the other terms and conditions intact; and that an intention to surrender the existing lease could not be inferred therefrom.</p> <p>The agreement for a reduction of the rent, as testified to by one of the defendants, was made during the pendency of a suit to recover a quarter’s rent past due. The agreement for a contingent surrender of the lease was made at a subsequent time, and had no connection with the former agreement. Held, that the agreement to reduce rent was void for the want of consideration ; that the payment of the costs in the action pending, for which defendant was legally liable, furnished no consideration, nor did the subsequent agreement.</p> <p>A contract or covenant under seal cannot be modified, before breach, by a parol executory contract.</p>

This action was brought for an accounting as to rents and profits of certain real estate alleged to have been received by defendant, and to recover a share thereof, which plaintiff claimed to be entitled to as tenant in common; defendant set up as a counter-claim, payment for plaintiff’s accommodation of two drafts drawn upon him by plaintiff, each for $1,000.

J. Deraismes, deceased. The accounts rendered were for rents received from real estate of the deceased, situate in New York and Brooklyn, under a clause of the will constituting the executors' trustees of said rents and providing for their application; among other things, authorizing them to pay the taxes on said real estate.

This action was brought by plaintiff, as assignee in bankruptcy of Charles H. Glynn, against defendant Horrobin as acceptor, and defendant J ohnston as indorser of a draft drawn May 18, 1875, by F. A. Leigh & Co. on Horrobin, payable to the order of J ohnston.

The substance of the complaint and the facts appear sufficiently in the opinion. A receiver may waive his immunity from suit by a general appearance in the action. (Hubbell v. Dana, 9 How., 424; Jay’s Case, 6 Abb., 293; High on Receivers, § 261; 1 Wait’s Pr., 199, 200; Chaut. Co. Bk. v. Risley, 19 N. Y., 376; Parker v. Browning, 8 Paige, 389; Wiswall v. Sampson, 14 How. [U. S.], 52.) The complaint stated facts sufficient to' constitute a cause of action.

This action was brought to restrain defendant from infringing upon an alleged easement. The facts appear sufficiently in the opinion. ■ An action in equity to maintain or enforce the terms of a covenant by injunction, is analogous to an action to compel a specific performance, and the interference of the court is subject to the same qualifications in both cases. (Story’s Eq.

<p>The jurisdiction given to the court under the provisions of the Revised Statutes, in reference to the sale of the real estate of a lunatic (2 R. S., 54, et seq), being a special statutory one, can only be exercised as the statute directs.</p> <p>The requirment of the statute (§ 12) that the petition “ shall be referred,” etc., is substantial and cannot be dispensed with; an omission to refer constitutes a fatal defect in proceedings under the statute.</p> <p>A purchaser under such defective proceedings may move to have his title perfected by new or amended proceedings, or to have the purchase-money refunded.</p> <p>As to whether there is any substantial difference in the steps required to be taken by the act of 1864, in reference to such sales (chap. 417, Laws of 1864), from those required by the Revised Statues, qucsre.</p>

This action was brought to recover damages alleged to have been sustained by plaintiff because of defendant's negligence in issuing to “ O. L. Nims, agent,” a bill of lading of a quantity of wheat which stated that Nims had shipped the wheat consigned to J. M. Fiske & Co., at New York, subject to plaintiff’s order, when in fact O. L. Nims, agent, was not the owner of the wheat or entitled to the possession thereof, the same belonging to one Samuel K. Worthington, of and from…

(Reported below, 9 Hun, 648.) This action was brought against defendant as a common carrier to recover damages for injuries to a carriage delivered by plaintiff to defendant at Buffalo to be transported to Hew York. The carriage was marked “Wood Brothers,” and by the bill of lading ivas “to be delivered to the party entitled to the same; ” it was badly injured while in transit.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, affirming a judgment in favor of plaintiff, entered upon the report of a referee.</p> <p>This action was brought by plaintiff, as the owner of certain interest coupons of bonds issued by the town of Hancock, against defendants, as the railroad commissioners of said town, to recover moneys alleged to have been raised by taxation and' placed in the hands of said commissioners for the purpose of paying said coupons.</p> <p>The facts appear sufficiently in the opinion.</p> <p>Defendants were not precluded from questioning the validity of the bonds. (People v. Brown, 55 N. Y., 180; People v. Mead, 24 id., 114, 127, 128; People v. Nostrand, 46 id., 375; Weisner v. Village of Douglas, 64 id., 91-105.) The town had a right to object to the validity of the bonds, and stay the payment of the money, and authorize the defense of this action. (1 R. S., art. 1, part 2, § 9, sub. 3; Hathaway v. Town of Cincinnatus, 62 N. Y., 434; Gould v. Town of Oneonta, 3 Hun, 487; Town of Venice v.Woodruf, 62 N. Y., 462.)</p> <p>Defendants could not gainsay the authority under which they acted, or raise any question as to the legality of the bonds or the tax. (Laws 1866, chap. 398, § 4; People ex rel. Marten v. Brown, 55 N. Y., 180; Ross v. Curtis, 31 id., 606; Murdock v. Aiken, 29 Barb., 59; People v. Mead, 36 N. Y., 244; 24 id., 114; Merritt v. Millard, 4 Keyes, 208, 214; People ex rel. Hopkins v. Supervisors of Kings Co., 52 N. Y., 556; People v. Williams, 3 T. & C., 338.) The town in its corporate capacity had no right or title to the money, and could not control the direction of it. (People v. Brown, 55 N. Y., 187; Lorillard v. Town of Monroe, 11 id., 394; Gailor v. Herrick,. 42 Barb., 79, 85; Gallatin v. Loucks, 21 id., 578; Murdock v. Aiken, 29 id., 67; 31 N. Y., 609.) An action will not lie to restrain the collection of a tax on the bare ground that the assessment was illegal. (Susquehanna Bank v. Supervisors of Broome Co., 25 N. Y., 312; Mesick v. Supervisors Columbia Co., 50 Barb., 190; Town of Venice v. Breed, N. Y. Ct. Apps., MS. Op.)</p>

(Mem. of decision below, 7 Hun, 677.) The nature of the action and the facts are set forth in the opinion. Plaintiff was not estopped from bringing this action. (Story’s Eq. Jur., § 389; Lawrence v. Brown, 1 Seld., 395; Jewett v. Miller, 10 N. Y., 402; Brewster v. Striker, 2 id., 19; Chaut. Bk. v. White, 2 Seld., 237; M. & B. Plk. Road v. Supham, 18 Barb., 312; Perry v. City of Worcester, 6 Gray, 574.) Plaintiff was entitled to the dividends of the Cutting and Smith shares.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, affirming a judgment in favor of plaintiff, entered upon the report of a referee.</p> <p>This action was brought to recover damages for the destruction of a bridge across the Backet river, m the town of Bierrepont, alleged to have been occasioned by defendants' negligence.</p> <p>The facts appear sufficiently in the opinion.</p> <p>Plaintiff had no right of action in the subject-matter in question. (Cornell v. B. & O. Tpke. Co., 25 Wend., 365; Morey v. Town of Newfane, 8 Barb., 645; Whart. on Neg., 956, 957; Town of Galen v. C. & R. Plank Road Co., 27 Barb., 543; Gailor v. Hereck, 42 id., 79; Cornell v. Town of Guilford, 1 Den., 510; Radcliffe v. Mayor, etc., of Brooklyn, 4 N. Y., 195; Bellinger v. N. Y. C. R. R. Co., 23 id., 47, 48; Conhocton Stone Co. v. B. & E. R. R. Co., 10 N. Y. Sup. Ct. R., 523; People v. Kerr, 27 N. Y., 188; Kelsey v. King, 33 How., 39; Malone v. City of Toledo, 28 Ohio, 643.) The logs were in the control of independent contractors, and defendants could not be held liable for their negligence. (S. & R. on Neg., § 75; Blackwell v. Wiswall, 24 Barb., 355; Norton v.Wiswall, 26 id., 618; Scheler v. R. R. Co., 38 id., 445; Potter v. Seymour, 4 Bos., 140; Gilbert v. Beach, 5 id., 445; O’Rourke v. Hart, 7 id., 511; Boniface s. Relyea, 6 Robt., 397; Barrett v. Singer Mfg. Co., 1 Swe., 545; City of Buffalo v. Halloway, 3 Seld., 493; Pack v. Mayor, etc., 4 Seld., 222; Kelly v. Mayor, etc., 1 Kern., 432; Black v. Ferris, 1 Seld., 48; Walter v. Ware, 16 Wal., 566; McCafferty v. S. D. &. P. M. R. R. Co., 61 N. Y., 178; Slater v. Mersereau, 64 id., 138; King v. N. Y. C. R. R. Co., 66 id., 181.) The Racket river, as between these parties and as to the subject-matter in controversy, is a navigable stream. (Palmer v. Mulligan, 3 Cai., 307; Shaw v. Crawford, 10 J. R., 237; Ex parte Jennings, 6 Cow., 518; Angell on Water-courses, §§ 546, 550; 3 Kent’s Com., 558 [notes]; 1 McL., 360; 2 id., 376; Wadsworth v. Smith, 2 Fairf., 278; 3 N. H., 321; 5 Ohio, 410; Brown v. Chadbourne, 31 Me., 9; Wadsworth v. Smith, 11 id., 278; Rowe v. Granite Bridge Co., 21 Pick., 344; Moore v. Sanborne, 2 Gibbs, 519; Brown v. Scofield, 8 Barb., 243; Morgan v. King, 18 id., 277; 30 id., 9; 35 N. Y., 454; 33 id., 461; Lowbee v. Wells, 13 How., 454; Rowal Fishery in the River Banne, Davies’ R., 152-157; Hall’s Jure Maris, chap. 3.)</p> <p>Plaintiff, as a corporate body, had a right to maintain this action for an injury to its property. (1 R. S. [6th ed.], 820, 821, 847, § 1; Weismer v. Vil. of Douglass, 64 N. Y., 105; People v. Ingersoll, 58 id., 30, 31, 32; 1 R. S. 502, §4; 2 R. S. [6th ed.], 13, § 67; Laws 1857, chap. 615, § 1; 1 R. S. [6th ed.], 848, 849; Hill v. Suprs. of Liv. Co., 12 N. Y., 52, 65; People ex rel. Johnson v. Martin, 62 Barb., 570; Griffin v. Martin, 7 id., 297; King v. Morgan, 35 N. Y., 454; Gould v. Glass, 19 Barb., 179; Smith’s Com. on Stat., 701, § 561; Potter’s Dwarris on Stat., 267.) Plaintiff’s rights were prior and superior to any right claimed by defendants of navigating the river with saw-logs, and they were liable for all damages done thereby to plaintiff’s property. (Vandenburgh v. Truax, 4 Den., 464; Pollett v. Long, 56 N. Y., 200; Slater v. Mersereau, 64 id., 138; Creed v. Hartman, 29 id., 591; Congreve v. Smith, 18 id., 79; Jones v. Chantrey, 4 T. & C., 63; City of Buffalo v. Holloway, 3 Seld., 497, 498; Storrs v. City of Utica, 17 N. Y., 105, 108; Morgan v. King, 35 id., 454; Munson v. Hungerford, 6 Barb., 256; Curtis v. Keeslar, 14 id., 511; Bartlett v. Crozier, 14 J. R., 447; Bush v. Trustees, etc., 3 T. & C.; 409; Barrett v. 3d Ave. R. R. Co., 45 N. Y., 628; Creed v. Hartman, 29 id, 597; Low v. Mumford, 14 J. R., 426; Chapman v. Bostwick, 18 Wend., 185, 186.)</p>

(Reported below, 9 Hun, 622.) This was an action for divorce a vinculo on the ground of adultery. The defense was a prior divorce obtained by defendant in Louisiana.

<p>Bailroads organized under the general raib'oad laws, when corporate existence ceases—Laws of 1867, cha/pter 775, section 1 — Taking of private property for public use—what may he alleged in opposition to application.</p> <p>Every corporation formed under the general laws for the formation of railroad corporations, previous to 1869, are required by the Laws of 1867 (chapter 775, section 1) to begin the construction of its road, and spend thereon ten per cent of its capital, within five years after its articles should be filed and recorded in the office of the secretary of state; and to finish its road and put it in operation in ten years from the time of such filing, &c., or in default thereof "its corporate existence shall cease.”</p> <p>The existence of the corporation is determined by the omission to comply with either of the prescribed conditions; and the omission to begin the construction and spend ten per cent of the capital within five years is as fatal as the failure to finish the road within the ten years.</p> <p>Where, by non-performance of either of these conditions, the company forfeits or loses its corporate rights and powers, the fact may be asserted by any one whose lands or property is sought to be appropriated to the uses of the corporation under the laws authorizing the taking of private property for public use.</p> <p>The company was organized February 3, 1869. It is in proof that it has not at this time (July 19,1877) begun a construction of its road, or made any part of the expenditure required by law to be made within five years, although that period expired In February, 1874.</p> <p>Held,, that such proof brings it directly within the act declaring that its existence and power should cease upon that contingency.</p> <p>Held, also, that the time for the performance of either of the conditions imposed by the Laws of 1867 was not extended by the several special acts of the legislature {Laws of 1869, chapter 718 ; Laws of 1870, chapter 612; Laws of 1871, chapter 622; Laws of 1872, chapter 705),</p> <p>On the 25th of May, 1874, after the expiration of the time for the beginning of the work of constructing the road had passed, the legislature passed an act {Laws of 1874, chapter 575) declaring that the time for beginning as well as finishing the road was extended for three years from the date of the act. The three years expired May 26, 1877. The application by the company for leave to take the respondent’s land was made upon a petition verified July 19, 1877.</p> <p>Held, that as the company had not at the time either begun nor finished its road, its corporate existence and powers had ceased.</p> <p>Held, also, that the act of 1875 {Laws of 1875, chapter 598), which is general, and applicable to all railroad companies within it provisions, does not apply to this company. It was not in default. It had yet, by the special act of 1874, two full years within which to complete its road, and the law of 1875 was framed for the relief of roads which were then in default.</p>

This action was upon a promissory note, made and executed by the Skaneateles Iron Works and indorsed, among others, by defendants, Elias Hunsiker and George H. Earll, for the accommodation of said corporation, and discounted by plaintiff.

<p>Appeal from judgment of the General Term of the Superior Court of the city of New York, affirming a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury.</p> <p>This action was upon a bond executed by defendant Chapman as principal, and the other defendants as sureties, conditioned as follows: “ That if the above-bounden William Henry Chapman, his heirs, executors, or administrators shall well and truly pay, or cause to be paid, unto the proper parties, the balance of the debts of the concern for manufacturing a variety of bread known as ‘ Kohler’s Cream Bread/ remaining due and unpaid, upon the delivery of this bond, and which are stated by said Chapman not to exceed twenty-five hundred ($2,500) dollars, within nine months after the date of this bond, and shall well and truly pay, or cause to be paid, unto the proper parties, the quarterly rent agreed to be paid in and by a certain indenture of lease of the promises known as Nos. 416, 418, 420 and 422 Sixth avenue, in the city of New York, made by Thomas H. Faile, and the said Thomas H. Faile and Thomas H. Faile, Jr., surviving executors, of Edward G. Faile, deceased, to said John F. Kohler, bearing date the 13th day of April, 1871, and now remaining unpaid, and yet to be paid, to wit, the sum of twelve hundred dollars, due on the 1st day of November, 1873; and the further sum of twelve hundred dollars, due on the 1st day of February, 1874; and the further sum of twelve hundred dollars, due on the 1st day of May, 1874; and also all the taxes, Croton water taxes, insurance and other charges, required to be paid by the said John F. Kohler, in and by the terms of said lease; and shall also do and perform all the covenants and conditions in said lease contained, to be done and performed by the said John F. Kohler; and shall also pay the rent agreed to be paid in and by a certain indenture of lease of the premises known by the No. 156 West Twenty-ninth street, in the city of New York, made by Richard Amerman to JohnF. Kohler, bearing date 2d day of March, 1869, and now remaining unpaid, and yet to be paid, to wit, the sum of one hundred and twenty-five dollars, due on the 1st day of November, 1873; and the further sum of one hundred and twenty-five dollars, to become due and payable on the first day of each and every month, until the 1st day of May, 1874, and shall do and perform all the covenants and conditions in said lease contained, to be done and performed by the said John F. Kohler, and shall forever hold harmless the said Catharine E. Kohler, executrix as aforesaid, her successors, heirs, executors and administrators, from the payment of the aforesaid debts, rents, taxes and other charges, and each and every part thereof, and from the performance of each and every of said conditions and covenants, pursuant to the terms of a certain agreement made and entered into by and between the said Catharine E. Kohler, executrix as aforesaid, and said William Henry Chapman, bearing even date with these presents, and without any fraud or other delay, then the above obligation is to be void, otherwise to remain in full force and virtue.”</p> <p>The court found substantially the following facts : That John F. Kohler died in the city of New York, on the 25th day of September, 1873, leaving his last will and testament by which plaintiff was appointed executrix, and she duly qualified as such. At thq time of his decease, Kohler and the defendant Chapman were engaged in business in the city of New York, as copartners, in the manufacture of a variety of bread known as ‘ Kohler’s Cream Bread.” On the 14th day of November, 1873, plaintiff, as executrix, entered into an agreement in writing, under seal with Chapman, whereby he bought and plaintiff conveyed to him all the property and interest which Kohler, or his estate had in said business, and by said agreement Chapman covenanted and agreed to and with the plaintiff, simultaneously with the execution and delivery of it, to execute and deliver to the plaintiff his three promissory notes for $1,000 each, due in six, twelve and eighteen months respectively, from the date of said agreement, and to assume and pay all the debts of said concern existing at the date of said agreement, to pay certain rents and taxes, which are specified in the condition of the bond, and to execute and deliver to the plaintiff a “purchase-money ” chattel mortgage covering all the personal property conveyed to him by said agreement, to secure the payment of the three notes and of the said debts, rents and taxes, and as further security agreed to execute, acknowledge and deliver to the plaintiff a bond in the penal sum of $6,000, conditioned for the payment by the said Chapman of the aforesaid debts, rents and taxes within nine months, with two sureties to be approved by said plaintiff. The bond in suit, the agreement, notes and chattel mortgage were simultaneously executed and delivered, and were each and all parts of one and the same transaction, and said notes, bond and chattel mortgage were executed and delivered in conformity with the said agreement; that there were no laches of the plaintiff or her agents in regard of her duties as to the collection of the amount due her under said agreement, or the enforcement of the liens acquired under said chattle mortgage. Chapman neglected to pay certain of the debts secured by the said bond within the nine months, and immediately after plaintiff duly notified the said sureties of Chapman’s default and made due demand of payment of them. The sureties thereupon granted and signed an extension of the time for the payment of said unpaid debts for six months. At the expiration of said extended time, Chapman had still failed to pay and the sureties were duly notified.</p> <p>It also appeared that Chapman paid one of the notes, but failed to pay the others. The chattel mortgage was foreclosed in July, 1875, and $438.35 was realized thereon. The debts unpaid were presented as claims against the estate, and were paid by plaintiff. The attorney for plaintiff was permitted to testify under objection and exception as to the presentation of the claims against the estate, that they were investigated by him, as counsel for the executrix, and found correct. Chapman testified that the firm had goods of the claimants; that he examined the bills with plaintiff’s attorney, and found them correct to the best of his knowledge. By the agreement, Chapman was allowed to sell three out of six horses, part of the firm assets, if not needed in the business. Chapman testified that, by an agreement between him and the plaintiff', made subsequent to the written agreement, he had permission to sell other horses than those for which permission was given him in the written agreement; but, on his cross-examination, he gives a different version of it, and admitted that he falsely stated to plaintiff’s agent, when the extension of the bond was made, that he had these three other mortgaged horses out at pasture, when, in truth, he had previously sold them; and that he only let it be known that he had done this when the plaintiff sought for them to sell under the foreclosure of the mortgage. The sureties claimed that they were discharged by the neglect of the plaintiff to file a copy of the chattel mortgage within thirty days before November 14, 1875, to preserve the security. Copies had been filed for each of the preceding years, but no copy was filed after the foreclosure. The certificate to the copy filed in November, 1874, stated plaintiff’s interest to be $2,000, that being the amount of the unpaid notes.</p> <p>Further facts appear in the opinion.</p> <p>To entitle plaintiff to recover, it was necessary to show either actual damage sustained, or a fixed liability incurred, even though the bond set forth in the complaint be held an absolute undertaking to pay the debts referred to. (Sedg. on Measure of Damages, m. p. 311; Nat. As. and Ins. Ass. v. Best, 2 H. & N., 604; King v. Whitely, 10 Paige, 405; Vrooman v. Turner, 15 Alb. L. J., 454; In re Negus, 7 Wend., 504; McGee v. Roen, 4 Abb., 8; Poet v. Jackson, 17 J. R., 479; Belloni v. Freeborn, 63 N. Y., 383; Thomas v, Allen, 1 Hill, 145; Wright v. Whiting, 40 Barb., 236; Churchill v. Hunt, 3 Den., 321; Furnas v. Durgin, 49 Mass., 500; Tracey v. Suydam, 30 Barb., 115; Richter v. Toppenhausen, 42 N. Y., 373.) The evidence on behalf of plaintiff did not establish a cause of action. (Aberdeen v. Blackmar, 6 Hill, 324; Crippen v. Thompson, 6Barb., 532,536; Scott v. Tyler, 14id., 205.) The court erred in admitting in evidence the two judgments by confession in the Supreme Court, and the executions thereon. (Yorks v. Steele, 50 Barb., 397; Thomas v. Humbell, 15 N. Y., 405; Bridgeport Ins. Co. v. Wilson, 34 id., 275; Lee v. Clark, 1 Hill, 56.) The permission to Chapman, subsequent to the execution of the agreement, mortgage and bond, to sell property covered by said mortgage, was such a variation of the agreement between the creditor and principal as to release the sureties. (De Colyar on Guaranties, etc., 375, 376, 389; Bonare v. McDonald, 1 E. L. & Eq., 1; Bacon v. Chesney, 1 Stark. N. P., 192; Dobin v. Bradley, 17 Wend., 422; Watts v. Shuttleworth, 5 H. & N., 235; Walsh v. Bailie, 10 J. R., 180; Lanus v. Barker, id., 312; McWilliams v. Mason, 6 Duer, 276; Rathbone v. Warren, 10 J. R., 587; Wright v. Johnson, 8 Wend., 512.) The burden of proof was on plaintiff to limit the extent of the damages occasioned by her negligence, and having failed to do so, the «court should have found that the sureties were discharged from all liability. (3 Kent’s Com., *124; 1 Story’s Eq. Jur., § 325; 5 H. & N., 235; Hayes v. Ward, 4 J. Ch., 123; Pearl v. Deacon, 24 Beav., 186, 191;, Capel v. Butler, 2 S. & S., 457; Mayhew v. Cricket, 2 Swanst., 191; Schroeppel v. Shaw, 3 N. Y., 459.) The money received on foreclosure of the chattel mortgage should have been applied toward reimbursing plaintiff, for any money paid by her in extinguishing the firm debts, before' looking to the sureties for reimbursement. (Muir v. Leitch, 7 Barb., 341; Burtus v. Tisdall, 4 id., 571; Pearl v. Deacon, 24 Beav., 186; Williams v. Bush, 1 Hill, 623.)</p> <p>The bond, agreement, notes and chattel mortgage having been simultaneously exe- „ cuted and delivered, should be considered together, and the intention of the parties carried out. (Van Wagner v. Terrett, 27 Barb., 181.) The bond in suit was an absolute and unqualified agreement and obligation on the part of the sureties to pay, and its condition was broken on Chapman’s failure to pay the debts within the specified time, and the legal liability of Chapman is the measure of damages. (Gilbert v. Wenian, 1 N. Y., 550; Tyler v. Ives, 1 id., 554; Thomas v. Allen, 1 Hill, 145; Churchill v. Hunt, 3 Den., 321; Sedg. on Dam., 311-313, 317, 318 [6th ed.], 378; Jackson v. Port, 17 J. R., 239, 479; Wickee v. Hoppock, 6 Wall., 99; Wright v. Whiting, 40 Barb., 235; In re Negus, 7 Wend., 499; Belloni v. Freeborn, 63 N. Y., 383; Lyon v. Clark, 8 id., 148; Ruggles v. Holden, 3 Wend., 216; McKenzie v. Farrell, 4 Bosw., 192.) The contract of surety-ship is to be interpreted in the same manner as any other contract, and its words are to be taken as strongly against the guarantors as their sense will admit. (Gates v. McKee, 13 N. Y., 232; Roch. City Bank v. Elwood, 21 id., 88; Belloni v. Freeborn, 63 id., 383; Christ v. Burlingame, 62 Barb., 351.) Plaintiff was not bound to do any affirmative act to protect the sureties at her own expense, and without request or indemnity from them. (Black River Bank v. Page, 44 N. Y., 453; Ramsen v. Beekman, 25 id., 552; Trustees Un. Col. v. Wheeler, 61 id., 88-110; Schroeppel v. Shaw, 3 id., 446, 453, 457; Suprs. Monroe Co. v. Otis, 62 id., 88; Hill v. Burke, 62 id., 116; Clark v. Sickler, 64 id., 231; King v. Baldwin, 17 J. R.,174; Hayes v. Lincoln, 21 Barb., 249; Kingsbury v. Williams, 53 id., 142; Pain v. Packard, 13 J. R., 174.) Failure to sue Chapman sooner did not discharge the > sureties. (Huffman v. Hulbert, 13 Wend., 377; Warner v. Beardsley, 8 id., 194; Herrick v. Borst, 4 Hill, 650; Valentine v. Farrington, 2 Edw. Ch., 53.) The refiling of the copy of the mortgage in November, 1874, with the statement then made, did not discharge the sureties. (Story on Equity, 501; 3 Moore P. C. R., 315, 322.)</p>

(Reported below, 10 Hun, 474.) ' The facts are sufficiently set forth in the opinion. The burden of proof was upon the proponents. (Lake v. Renney, 3 Barb., 49.) The testator was not at the time of making the will in question of sound mind and memory.

(Reported below, 10 Hun, 596.) This action was brought upon two promissory notes alleged to have been executed by defendant, which were made payable to the order of -Samuel R. Pike, plaintiff’s testator, at the Park Rational Bank. The notes were dated July 12, 1872.

Appear from judgment of the General Term of the Supreme Court, iu the fourth judicial department, affirming a judgment iu favor of plaintiff, entered upon the report of a referee.

This action was originally brought by Cornelius Poillon and Alexander C. Poillon upon an undertaking alleged to have been executed by defendants, given upon the granting of a preliminary injunction in an action by one Joseph W. Bray against said plaintiffs. The original plaintiffs having died during the pendency of the action, their personal representatives, the present plaintiffs, were substituted.

(Reported below, 11 Hun, 374.) This action was brought to recover damages to a building belonging to plaintiff’s testatrix, alleged to have been caused by excavations made by defendant on his adjoining lot. The facts appear sufficiently in the opinion. As the evidence showed that plaintiff’s house was injured by the deepening of the foundation of defendant’s house, he was entitled to recover. (Clare v. Nat.

<p>The will of K. directed that his residuary estate should be divided among his “ next of kin according to the statute of the State of Mew York concerning the distribution of personal estates of intestates.” At the time of making the will the testator had no wife, but married subsequently; held, that as there was nothing in the context to show a different intent, • the ordinary meaning was to be given to the words “next of kin.” — i. e., relatives in blood, and that they did not include the testator’s widow.</p>

(Reported below? 7 Hun, 117.) The appeal was by legatees under the will' of William Cooper, late of the city of New York, deceased, from so much of the decree of the said surrogate, upon the final accounting of the executors, as adjudged that the general legacies given by the will were not a charge upon the testator’s real estate. The material portions of the will are as follows : “First.

This action was brought to restrain defendants from running upon, intersecting or using any portion of the railroad tracks laid down by plaintiff in certain streets in the city of-New York.

Ebbob to the General Term of the Supreme Court, in the third, judicial department, to review two judgments, affirming judgments of the Court of Oyer and Terminer in and for the county of Albany, each convicting the plaintiff in error of the crime of grand larceny. (Eeported below, 6 Hun, 401.) Both indictments were for stealing drafts, the one for $7,500, the other for $400. The indictment upon the first draft contained forty-eight counts.

<p>Error to the General Term of the Supreme Court, in the third judicial department, to review judgment of the General Term of the Supreme Court iu the third judicial department, affirming judgment of the Court of Oyer and Terminer of the county of Albany, entered upon a verdict convicting the plaintiff in error of the crime of forgery in the third degree. (Reported below, 6 Hun, 428.)</p> <p>The facts appear sufficiently in the opinion.</p> <p>In an indictment for forgery, the instrument alleged to be forged should be set forth in words and figures, or some sufficient reason alleged why it is not. (2 East P. C., 975, § 53; id., 985, § 58; 1 Chitty C. L. [5th Am. ed.], 233; 3 id., 1039b-1041; 2 Russ, on Crimes [4th Am. ed.], 359; Whart. C. L. [3d ed.], 174, 281, 283, 287; People v. Kingsley, 2 Cow., 522; Comm. v. Houghton, 8 Mass., 107; 1 Bish. Cr. Prac. [2d ed.], §§ 553, 559-561; 2 id., §§ 403-406; Rex v. Lyon, 2 Leach [3 Lond. ed.], 681, 696.) The variance between the indictment and the proof was fatal. (Reading’s Case, 2 Leach [3d Lond. ed.], 672; Lyon’s Case, id., 681; Gilchrist’s Case, id., 753; 2 East Pl. Cr., 981-984; Rosc. Cr. Ev., 510, 511; 1 Bish. Cr. Pro., § 485, 490-559; 2 id., § 416; U. S. v. Hardyman, 13 Pet., 176; Comm. v. King, 9 Cush., 287; Rastall v. Stratton, 1 H. Black, 49; People v. Jones, 5 Lans., 340; 3 Gr. Ev., 65; Hunter’s Case, 2 Leach Cr. Cas. [3d Lond. ed.], 711; Mason’s Case, id., 548; People v. Warner, 5 Wend., 272.) The false entry could not prejudice or in any way affect any person, body or corporation in his estate or property, and could not be made the foundation of any legal liability. (4 Bl. Com., 247; 2 East Pl. Cr., 840; 3 Gr. Ev., § 103; 2 Bish. Cr. L. [5th ed.], § 523; Wall’s Case, 2 East Pl. Cr., 953; Moffat’s Case, 2 Leach [3d Lond. ed.], 483; Reg. v. Hodgson, D. & B. Cr. Cas., 3; People v. Shall, 9 Cow., 778; People v. Fitch, 1 Wend., 198; People v. Galloway, 17 id., 541; People v. Stearns, 21 id., 409, 413; People v. Wilson, 6 J. R., 320; People v. Harrison, 8 Barb., 560; Cunningham v. People, 4 Hun, 455; Rex v. Wavell, Moody Cr. Cas., 224; Reg. v. Marcus, 2 C. & K., 356; Ex parte Winsor, 6 B. & S., 528; 10 Cox Cr. Cas., 118; State v. Young, 46 N. H., 266; Ham. Dig., chap. 1, § 2, p. 102; Rex v. Knight, 1 Salk., 375; 1 Bish. Cr. L. [5th ed.], §§ 572, 748.) The court erred in refusing to charge that, upon the whole facts in the case, the prisoner was not guilty of the crime of forgery. (People v. Shall, 9 Cow., 778; People v. Fitch, 1 Wend., 198; People v Galloway, 17 id., 540; People v. Stearns, 21 id., 409, 413; People v. Wilson, 6 J. R., 320; 4 Hun, 455; 8 Barb., 560; Reg. v. Marcus, 2 C. & K., 360; 1 Bish. Cr. L. [5th ed.], §§ 572, 748; 46 N. H., 266.) The court erred in refusing to charge that the prisoner could not be convicted because the making of such false entry had no legal tendency whatever to injure or defraud the people of the State or the bank. (8 Barb., 560; 2 C. & K., 354; People v. Cady, 6 Hill, 490; 1 Bish. Cr. L. [5th ed.], §§ 572, 748; 2 id., §§ 523, 533, 543, 586, 599; People v. Galloway, 17 Wend., 540; People v. Fitch, 1 id., 199; People v. Shall, 9 Cow., 778.) It was also error to refuse to charge that the entry charged to be false and fictitious was not properly set forth in the indictment. (2 East Pl. Cr., 975, 985, §§ 53, 58; 1 Chitty’s Cr. L., 233; 3 id., 1039 b, 1040, 1041; Rex v. Lyon, 2 Leach, 681 ; People v. Kingsley, 2 Cow., 522; Comm. v. Houghton,, 8 Mass., 107; People v. Warner, 5 Wend., 272.)</p> <p>The facts in this case were amply pleaded, and the indictment good. (People v. Loop, 3 Park. Cr., 559; Quinlan v. People, 6 id., 9; Low v. People, 2 id., 37; Wilson v. People, 6 id., 178; Haskins v. People, 16 N. Y., 344, 347, 348; People v. Clements, 26 id., 197, 198; People v. Rynders, 12 Wend., 431; Holmes v. People, 15 Abb. Pr., 154; Rosekrans v. People, 5 N. Y. S. C. R., 467, 475; Rex v. Sommerton, 7 B. & C., 463.) The indictment was proper and valid-in form. (Barnum v. State, 17 Ohio, 717; Warren’s Ohio Cr. L., 515; Biles v. Comm., 32 Penn. St., 529; 5 N. Y. S. C. R., 474, 475; Arch. Cr. Pr. & Pl. [17th Eng. ed], 592, Ream v. Comm., 3 S. & R., 207; Comm. v. Williams, 9 Metc., 273.) The false entry was a forgery at common law, independent of the statute, and the prisoner could have been convicted without the statutory provisions. (5 N. Y. S. C. R., 472, 473; 2 Bish. Cr. L. [5th ed.], §§ 596, 597; 32 Penn. St., 529, 538; 9 Cox Cr. Cas., 162, 165; 2 Whart. Cr. L. [7th ed.], § 1431.) It was proper to charge the offense in various forms. (Davis v. People, 56 N. Y., 95, 101 ; La Beau v. People, 33 Howard’s Practice, 69 ; Nelson v. People, 5 Park, 39 ; Osgood v. People, 39 N. Y., 449, 451; Kane v. People, 8 Wend., 210, 211; People v. White, 55 Barb., 606, 611.) The prisoner having been convicted on all the counts, if there was a single good one, the conviction was valid. (56 N. Y., 95, 100; Gunther v. People, 24 id., 100; Crichton v. People, 6 Park. Cr., 363; 1 Keyes, 344; 1 Abb. Ct. App. Dec., 470; People v. Stein, 1 Park. Cr., 202; Baron v. People, id., 246; 4 id., 26; 33 How. Pr., 70; Fraser v. People, 54 Barb., 306, 308; People v. Herrick, 13 Wend., 91, 92; Bretschofsky v. People, 3 Hun, 40; 60 N. Y., 616; Lyons v. People, 68 Ill., 272; Latham v. The Queen, 9 Cox Cr. Cas., 516; Cooke v. State, 49 Miss., 9; Estes v. State, 55 Geo., 131; Adams v. State, 52 id., 565; Chappell v. State, 52 Ala., 359; 1 Bish. Cr. Prac. [2d ed.], § 1015; 3 Whart. Cr. L. [7th ed.], §§ 3208, 3209; People v. Gonzales, 35 N. Y., 60; Wood v. People, 61 id., 117.) The inaccuracy in stating the date of the entry in the indictment was not a material variance. (Real v. People, 55 Barb., 552, 579, 580; 1 Abb. Ct. App. Dec., 470, 471; Miller v. People, 52 N. Y., 304; Wilson v. People, 5 Park. Cr., 179, 180; People v. McGinnis, 1 id., 391; People v. Treadway, 3 Barb., 470; People v. Phelps, 5 Wend., 10 ; People v. Warner, id., 271; Tuttle v. People, 36 N. Y., 436 ; May v. State, 14 Ohio, 466 ; O'Neil v. State, 48 Geo., 66, 77 ; Clark v. Gleason, 30 Mich., 159 ; Wells. Ques. of Law & Fact, §§ 46, 47; 1 Bish. Cr. Prac. [5th ed.], § 338 ; Comm. v. Davis, 11 Gray, 4, 8, 9 ; Comm. v. Riggs, 14 id., 376, 377; Hess v. State, 5 Ohio, 8; Dubois v. Baker, 30 N. Y., 361; 35 id., 60; State v. Givens, 5 Ala., 747; Perkins v. Comm., 7 Grat., 651, 654; Zislick’s Case, 1 East, 181, note; 2 East Pl. Cr., 925 ; Comm. v. Ross, 2 Mass., 373; Backhand v. Comm., 8 Leigh [Va.], 732, 736; Hoffman v. Comm., 6 Rand. [Va.], 685; Turpin v. State, 19 Ohio St., 540, 545; U. S. v. Hinman, Bald. C. C., 393, 394.) The point that the prisoner could not be convicted, if he made the false entry to cover up and conceal a previous defalcation, and that neither the bank nor the State lost anything by the entry, was not well taken. (32 Penn. St., 537 ; 15 Ohio St., 717, 720, 721 ; Comm. v. Williams, 9 Metc., 276 ; 3 S. & R., 207 ; State v. Rhoades, 6 Nev., 353, 376 ; 1 Greenl. Ev., §§ 483, 484 ; Bissell v. Hamblin, 6 Duer, 512-514; 2 Bish. Cr. L. [6th ed.], §§ 596-603 ; 1 R. S., 176, § 1; 1 Edm. Stat., 177 ; id., 177, § 7 ; id., 178 ; id., 178, §§ 10, 11, 13; id., ; Paige v. People, 3 Abb. Ct. App. Dec., 439, 447, 448 ; 4 Al., 301, 304 ; 9 id., 275 ; 2 Whart. Cr. L. [7th ed.], § 1493; U. S. v. Taintor, 11 Blatch., 378, 379 ; People v. Rathbun, 21 Wend., 509, 521; People v. Stearns, id., 409, 413-418 ; 2 Whart. Cr. L. [7th ed.], § 1493 ; Reg. v. Feeny, A. Mac. & O., 193 ; 21 Wend., 418, 419.) It was not necessary that the indictment should have charged an intent to defraud the State. (2 R. S., 552, § 13 ; 2 Edm. Stat., 573 ; People v. Bennett, 37 N. Y., 126 ; 2 Story on Const., §§ 1679-1686 ; 1 R. S., 165, § 15 ; 1 Edm. Stat., 164 ; People v. Bennett, 37 N. Y., 126-129 ; Texas v. White, 7 Wal., 721; Collector v. Day, 11 id., 124 ; State of N. Y. v. State of Conn., 4 Dal., 1; 1 R. S., 65, § 3 ; 1 Edm. Stat., 79 ; id., 172, §§ 13-17 ; id., 172 ; id., 179-181, §§ 1-17 ; id., 180-182 ; 2 R. S., 703, §§ 35, 36 ; 2 Edm. Stat., 726.) There was no error in admitting in evidence the prisoner’s letters to the treasurer. (Weed v. People, 56 N. Y., 628 ; Cofferman v. People, 3 N. Y. S. C. R., 199 ; 56 id., 591 ; Rex v. Moore, 2 C. & P., 235 ; Reg. v. Briggs, 2 M. & R., 199.)</p>

<p>The will of M. devised and bequeathed his residuary estate to his executors in trust, in case his three children survived him, to divide the same into three equal shares, one to be held for each of said children during life, and upon decease of the child first to die, his or her share to go in fee to the lawful issue if any, if none then the share to be divided into two equal parts, one to be held in trust for each of the surviving children during life, and upon the death of the child next dying the part or sub-share so held for the one so dying to go to his or her issue if any; if none, to the persons who, if the surviving child were dead without issue, would be the testator’s heirs-at-law; upon death of the survivor, the sub-share held for his or her benefit to vest absolutely as specified. A similar provision was made as to the share held for the child the second to die. In case of death without issue, one of the sub-shares to go to the issue of the child first dying if any; if none, to the persons who, if the surviving child were dead without issue, would be the testator’s heirs-at-law, etc. Held, that the provision did not suspend the power of alienation for more than two lives then in being, and was valid.</p> <p>Another provision of said will directed that a specified sum out of the rents, issues and profits of each share of the estate, during the minority of the child for whose benefit it was held “ shall be applied to his or her education and support,” and the balance added to the principal; after the arrival of each child at the age of twenty-one, then that the whole of the income “shall be paid over quarterly to such child.” Held, that the words “applied” and “paid over,” as used, were substantial equivalents, that the trust was within the provision of the statute of uses and trusts relating to express trusts (1 B. S., 730, § 56), and was valid.</p>

<p>Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, affirming a judgment in favor of plaintiff, entered upon a decision of the court at Special Term.</p> <p>The nature of the action and the facts appear sufficiently in the opinion.</p> <p>No cause of action exists unless fraud is shown. (Higbie v. Guardian Co., 53 N. Y., 603; Baker v. Home Co., 64 id., 648; Jeffries v. Ins. Co., 22 Md., 48; Etna v. France, 91 U. S., 512; Foot v. Etna, 61 N. Y., 571.) Mere weakness of intellect, if there is no fraud, is not of itself adequate ground to set aside a transaction. (Simeon v. Wilson, 3 Edw. Ch., 36; Sprague v. Duel, 11 Paige, 480.) The influence exercised over the deceased by defendant’s agent was legitimate. (Davis v. Calvert, 5 G. & J., 269; Gardner v. Gardner, 34 N. Y., 155.) The deceased was the agent of plaintiff and had power to surrender the policy. (Baker v. Un. Mut. Co., 43 N. Y., 283; Thompson v. Am. Co., 46 id., 674.) Very slight evidence of ratification of the agency was sufficient. 1 Chitty on Con. [11th Am. ed.], 291; Dillon v. Anderson, 43 N. Y., 231; Warner v. Warren, 40 id., 228; Happy v. Mosher, 48 id., 313; Ferner v. Lewis, 10 J. R, 38; Riley v. Suydam, 4 Barb., 222; McCormick v. Barnun, 10 Wend., 104.) There was a complete ratification of the surrender of the policy by plaintiff. (Lawrence v. Dale, 3 J. Ch., 41; Wheaton v. Baker, 14 Barb., 544; Fisher v. Fadirhall, 21 id., 81; Minturn v. Main, 3 Seld., 220; Sar. R. R. Co. v. Row, 24 Wend., 74; Loyd v. Brewster, 4 Paige, 537; Brice v. Davenport, 3 Keyes, 474; Hunt v. Singer, 1 Daly, 209; Hazard v. Treadwell, 1. St. R., 506; Rusby v. Scarlet, 5 Esp., 76; Cannes v. Lord, 12 J. R., 300; Erick v. Johnson, 6 Mass., 193; Frothingham v. Haby, 3 id., 70; 3 Kent’s Com. [8th ed.], 801; Johnson v. Wingate, 29 Me., 404; Grant v. Beard, 50 N. H., 291; Benedict v. Smith, 10 Paige, 127; Carious v. Bleeker, 12 J. R., 300; Klock v. Richtmyer, 13 id., 367; Johnson v. Jones, 4 Barb., 369; Viana v. Barclay, 3 Cow., 281; Shrias v. Morris, 8 id., 60; Towle v. Stevenson, 1 J. Cas., 110; Armstrong v. Gilchrist, 2 id., 424; Codwise v. Hucker, 1 Cai., 526; Hogan v. Mayor, 5 Hill, 389; Mumford v. Am. L. Co., 4 N. Y., 463; 1 Chitty on Con., 292; Ely v. Mumford, 47 Barb., 629; Newbury v. Garland, 31 id., 121; Palmer v. Lawrence, 3 Sandf., 174; Nichols v. Nuchaetes, 23 N. Y., 264; Allerton v. Allerton, 50 id., 670.)</p> <p>The policy belonged to plaintiff, and her husband had no power or control over it. (3 R. S. [Bank’s ed.], 161, § 89; Laws, 1862, chap. 172.) The husband’s agency ceased upon the substitution of the policy into defendant’s company. (N. Y. L. Ins. and T. Co. v. Beebe, 7 N. Y., 364.) The surrender was repudiated by plaintiff within a reasonable time. (2 Kent’s Com. [8th ed.], 801; Coyle v. City of Brooklyn, 41 N. Y., 619.) No ratification of the surrender could be claimed. (Gage v. Sherman, 2 N. Y., 417; Bredendecker v. Lowell, 32 Barb., 9; Clarke v. Meigs, 10 Bos., 337; Hope v. Lawrence, 50 Barb., 258.) To make an unauthorized act of an agent binding on the principal, on the ground of a subsequent ratification, such ratification must have been made with full knowledge of the facts affecting his rights. (Seymour v. Wyckoff, 10 N. Y., 213; Nixon v. Palmer, 8 id., 398; Owing v. Hull, 9 Pet., 629; Brass v. Smith, 40 Barb., 659; Howell v. Christy, 3 Lans., 238.)</p>

The body of the indictment was as follows : ‘That Timothy Casey, late of the city of Troy, in the county of Rensselaer aforesaid, on the… Held: the same being then and there a sharp, dangerous weapon, wilfully and feloniously, and without justifiable and excusable cause, did then and there beat, strike, stab, cut and wound, with intent to then and there wilfully and feloniously do bodily harm unto him, the said John H. O’Brien, against the form of the statute in such case…

Markham as executor of the estate of Wayne Markham, deceased. The proceeding for a final accounting was at the instance of the said executor. His account presented for settlement credits the estate in all with the sum of $6,199.75. It credits the executor for funeral expenses paid, and for the expenses of administration, including twenty-nine dollars for counsel fees, the whole amounting to $636.79.

<p>Appeal by defendant, Alice Low Harmony, from judgment of the General Term of the Supreme Court in the second judicial department, modifying a judgment entered upon a decision of the court at Special Term.</p> <p>This action was brought by plaintiff, as executor of the will of Daniel Low, deceased, to obtain a construction of said will.</p> <p>The testator died April 6, 1876, leaving him surviving his widow, two sons, two daughters, and two grandchildren, children of a deceased daughter, one of whom is the appellant.</p> <p>The portions of the will having any relation to the questions presented here are as follows :</p> <p>“ Third. I devise that my executors invest, in good undoubted securities, ten thousand dollars, or retain this sum in securities, that I now have, and the interest of the same shall go towards the support of Alice Harmony, daughter of my late daughter Sarah Ann Harmony ; this sum is to be a permanent investment, and only the interest or income paid over to herself. If she should die without issue, then this sum shall be divided with my other heirs, or should she be married, then at her death she can will this sum to whom she pleases.”</p> <p>“Fifth. After the above legacies, I devise and bequeath all my personal and real estate, except hereinafter named, to my beloved wife, Evelina E. B. Low, and all my living children to share and share alike, referring more particularly to a marriage contract made with her fourth day of October, eighteen hundred and fifty (1850).</p> <p>“ I bequeath to her all my linen, plate, and such furniture as she may need for her use. I give to her also my watch. I give to my son Adolphe my library, allowing my wife to take such books as she may desire.</p> <p>“ Sixth. The portions of my estate coming to my daughters Evelyn T. and Adele T. shall be loaned on good bond and mortgage in the city of New York or Brooklyn, with undoubted titles of improved real estate, and the interest paid over to them for their support. If they should get married, my executors can let them have five thousand dollars out of the capital, if they think proper—my intention is that the investment shall be permanent, with the above exception. Should both or either die without heirs, then their portion shall be given to my other children and wife, or their heirs ; or should they be married, they can at their death make such disposition of their interest as they may think proper.</p> <p>“ I will here remark to my sons and daughters that I think it of the first importance that the daughters’ portion ought, in case they are married, be placed where they or their husbands can only use the interest on the same, and although the sum may be small, yet in case of misfortune, which all are liable to, and I have seen the value of such an arrangement.”</p> <p>By the marriage contract referred to in the sixth clause, the said Daniel Low agreed that if his wife survived him she should have such share of the real estate of wdiich he should die seized, as she would take by the laws of the country where such real estate may be located, were she the daughter of said Daniel, and he died intestate, subject to certain qualifications and limitations in case she again married.</p> <p>By the judgment of the General Term it was adjudged, among other things, as follows:</p> <p>“ That Alice L. Harmony takes no interest in and is invested with no estate in or title to the ten thousand dollars mentioned in the third clause of said will. The title to said ten thousand dollars being invested in the executor, in trust for said Alice L. Harmony, and the interest or income thereof to be paid over to her during her life. In case she shall marry, she may dispose of the said principal sum by will, as she may think proper. In case she shall not marry, or, having married, shall make no will, nor leave children, the said principal sum shall be distributed among the wife and children of the said testator. In case she shall die leaving children, and without a will, the said principal sum shall go to such children.</p> <p>“And it is further adjudged and decreed that the said Alice L. Harmony is not included in the description all my living children/ in the fifth clause of said will, and takes no interest under the provisions thereof. And, also, that she is not included in the description my other children and wife, or. their heirs/ in the sixth clause of said will.”</p> <p>The words “living children,” as used in the fifth clause of the will, are synonymous with the -words “living issue.” (Provost v. Calyer, 62 N. Y., 550; Prowitt v. Rodman, 37 id., 42; King v. Welling, 1 Vent., 225; Hughes v. Sayres, 1 P. Wms., 534; Parkman v. Bowdoin, 1 Seemn., 369; Wyld v. Lewis, 1 Atk., 431; Davie v. Stevens, 1 Doug., 321; Doe v. Perryn, 3 T. R., 491; Wood v. Baron, 1 East, 484; State v. Barter, 2 B. & P., 485; Hawley v. Northampton, 8 Mass., 41; Doe v. Webber, 1 B. & Ald., 719; Mellish v. Multish, 2 B. & C., ; Bradhurst v. Morris, 2 B. & Adol., 1; Doe v. Davis, 24 Eng. C. L., 29.) In the absence of any safe guide to a different conclusion a testator’s words are to be taken in their primary signification. (Earl Orford v. Churchell, 3 V. & Bea., 68; Hart v. Fulk, 19 Eng. L. & Eq., 443; Scott v. Guernsey, 48 N. Y., 106; Teed v. Morton, 60 id., 505; Provost v. Calyer, 62 id., 550.) The appellant being a descendant of the testator the presumption is in her favor. (48 N. Y., 106; 3 T. R., 83; 2 B. & P., 247; 23 Wend., 452; 3 Den., 458; Doe v.Webber, 1 B. & Aid., 713; Parkman v. Bowdoin, 1 Sumn., 368; Prowitt v. Rodman, 37 N. Y., 56.)</p> <p>The provision of the will for poor and vagrant children was void. (McCaughal v. Ryan, 27 Barb., 376; Owen v. Mis. Soc., 14 N. Y., 380; Beekman v. Bonsor, 23 id., 298; Williams v. Williams, 8 id., 525; Bascom v. Albertson, 34 id., 584; Levy v. Levy, 33 id., 97.) The real estate, attempted to he devised by the fourth clause of the will, does not pass with the residuary estate under the fifth clause, but descends to the heirs of the testator. (Van Kleeck v. Ministers, etc., 6 Paige, 600; 20 Wend., 457; James v. James, 4 Paige, 115; Tucker v. Tucker, 5 N. Y., 408.) A contrary rulo prevails as to the persoal estate. (Floyd v. Barker, 1 Paige, 480.) There was an equitable conversion of the real estate into personalty. (Morton v. Morton, 8 Barb., 19; Gowdey v. Campbell, 6 Hun, 218; Haxtun v. Corse, 2 Barb. Ch., 506; Meakings v. Cromwell, 1 Seld., 136.) The testator’s granddaughter Alice was entitled, under the third clause of the will, to the income of $10,000 during her life, but took no estate or interest in the fund itself. (Dumond v. Stringham, 26 Barb., 110, 111; Wright v. Trustees, etc., Hoffm. Ch., 202; Norris v. Beyea, 13 N. Y., 280; Pinckney v. Pinckney, 1 Bradf., 269; Mowatt v. Carow, 7 Paige, 328; Marsh v. Hague, 1 Edw. Ch., 174; Stires v. Van Rensselaer, 2 Bradf., 174.) This was not a case where the sale of the real estate was discretionary with the executor. (Dodge v. Pond, 23 N. Y., 69; White v. Howard, 46 id., 162; Bramhall v. Ferris, 14 id., 41; Stagg v. Jackson, 1 id., 206; Meaking v. Cromwell, 5 id., 136; Gourley v. Campbell, 13 Hun, 218.)</p>

(Mem. of decision below, 5 Hun, 457.) The fapts appear sufficiently in the opinion. The defendant never acquired jurisdiction over the subject-matter of the charge and evidence under which they removed relator. (Skahan’s Case, 10 Hun, 108.) The resolution passed by defendant was conclusive in the certiorari proceedings. (People v. Mayor, 2 Hill, 9.)

This was an action for slander, in imputing to plaintiff the crime of larceny. The facts appear sufficiently in the opinion. The words of the defendant did not import the crime of larceny.

- This action was brought by plaintiff, as assignee in bankruptcy of William H. Decker, to recover the proceeds of the sale of a quantity of lumber, the property of the bankrupt, alleged to have been made by defendants, claiming to act under a chattel mortgage, executed to them by the bankrupt, upon his stock of lumber, which mortgage plaintiff alleged to be fraudulent and void, in that, by the understanding of the parties, the mortgagor continued in the business of selling…

Gumming, John P. Gumming. Alexander McGuire, and Thomas Miller, trustees of the New York Cement Company, requiring them to notify and… Held: at which it was resolved, “ That the secretary call a special meeting of the stockholders on February 20, 1877, for election of trustees, as required by the by-laws in case where there is no election at the annual meeting.” No call was issued, however, or notice published, the secretary claiming that there was no provision for such a…

<p>Upon an attachment issued in this action, the sheriff seized certain property; by consent of the parties interested an order was obtained providing that the sheriff should proceed to sell by an auctioneer named, “ and hold the proceeds thereof in the same manner as the property sold subject to the existing rights of all parties therein.” In pursuance of the order the sheriff sold and rendered his account, which was settled save as to items charged for auctioneer’s fees, which were objected to as excessive. Held, that an order was proper taxing the items and requiring the sheriff to pay over the difference between the amount so allow-ed on taxation and that retained, although the money did not actually come into his hands; that it was to be presumed that he assented to the order naming the auctioneer, as neither the court nor the parties could compel him to employ an auctioneer, or could name one whom he should employ without his consent; that the auctioneer was his agent, and for moneys' coming into the hands of such agent he was responsible; and that this was a proper case for taxation under the provision of the statute on that subject. (2 R. S., 652, § 1.)</p> <p>Also held, that there having been no agreement for the compensation of the auctioneer, the sheriff had no right to allow beyond the two and one-half per cent fixed by statute. (1 R. S., 532, § 23.)</p> <p>Also held, that it was not error for the General Term, on appeal from an order of Special Term denying a motion so to charge the sheriff, to make such an order as should have been made by the Special Term.</p>

, appellant, for leave to file a supplemental answer. This action was brought to establish plaintiff’s right to an award made to one Thompson, for property taken for widening Broadway in the city of New York. Plaintiff claimed as assignee of Thompson, defendant Matthews also claimed to be entitled to the award. The fund in controversy was in the hands of the city at the time the action was commenced.

The relator was a regular clerk in the department. On the 14th August, 1877, a notice was served upon him requiring him to show cause why he should not be removed. No cause for the proposed removal was stated. The relator appeared at the time stated, and asked to be informed of the cause for removal. None was stated, and he was never informed of any cause for removal; but the board requested him to show why he should not be removed.

(Memorandum of decision below, 9 Hun, 196.) This action was brought by plaintiffs, who viere manufacturers of blankets, against defendants, who were commission merchants in the city of New York, to recover for an alleged unauthorized sale.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, affirming a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term. (Reported below, 9 Hun, 30.)</p> <p>This action was brought in behalf of Helen Reid, a lunatic, by her committee, to set aside the assignment of a bond and mortgage, so far as it affected the alleged interest oí plaintiff therein, and to protect such interest.</p> <p>The facts, as found by the court, are substantially as follows :</p> <p>In 1851 one Jane Chamberlain died seized of the premises described in the mortgage in question, and leaving a will which contained this clause.</p> <p>“ I, Jane Chamberlain, of Johnstown, devise and bequeath all my real and personal estate of which I am possessed, or which is held in trust for me, to my daughter, Catharine Barber, the income of which is to be expended for the support of my daughter Helen during her life, and then the principal to belong to my daughter, Catharine Barber, her heirs and assigns; and I direct my trustee to convey my real estate according to the above devise.”</p> <p>On the 3d day of March, 1852, said Catharine Barber sold and conveyed said premises to one Rodney H. Johnson; the deed contained the following recital: “Whereas, Jane Chamberlain, late of the village of Johnstown, by her last will and testament, did devise and bequeath unto Catharine Barber, wife of George J. J. Barber, all the real and personal estate of which she, the said Jane, was possessed, in and upon the confidence that the income of the same should be expended for the support of Helen Reid, the daughter of the said Jane, during the life of the said Helen, and after the death of the said Helen, the same estate to belong to the said Catharine Barber, aforesaid, her heirs and assigns, with power to convey said real estate so devised.”</p> <p>To secure the payment of the purchase-price of said premises, Johnson executed and delivered to said Catharine a bond conditioned that "he would pay the same in two equal, annual payments, from and after the death of Helen Reid, with interest payable annually. To secure said bond the purchaser gave a mortgage upon said premises in the usual form, without any recitals or references, except a reference to the bond; the Helen Reid referred to in the will was, at its date, a lunatic, and has ever since and still continues such, and is now in charge .of a committee. The interest accruing upon the bond from its date up to March 3, 1872, was paid and applied, to the support of said Helen. On the 27tli day of April, 1872, George J. J. Barber, the husband of Catharine Barber, borrowed of the defendant, Hosea Sprague, §1,500, giving his note therefor; Barber obtained from his wife an assignment of said bond and mortgage to Sprague as collateral security for the note, and delivered the same to said Sprague as such security; Sprague loaned the money to said Barber, in part, on the faith of said assignment.</p> <p>The court directed a judgment declaring the bond and mortgage a fund, for the purpose of the trust created by the will; removing the trustee, and substituting the committee of plaintiff, with power to receive and collect the interest due, and to become due, during the life of said Helen, and apply the same; also, that the assignment of the bond and mortgage, so far as it relates to the interest due, and to become due during the lifetime of Helen, be declared void, and defendant Sprague enjoined from collecting or attempting to collect the same, or in selling or in any way incumbering said interest; also decreeing that, as between the defendants, after the death of the cestui que trust, the principal of said bond and mortgage becomes the property of Sprague, under and in virtue of said assignment, as collateral security for the payment of such sum as shall then be due on said note ; any overplus, after deducting said several sums and interest, was adjudged to belong to said Catharine.</p> <p>Judgment was entered accordingly.</p> <p>Catharine Barber and her vendee, being in possession, could only be put out on condition broken, which plaintiff would be bound to prove. (13 Barb., 119, 137; 20 id., 455.) The acceptance of the devise and bequest by Catharine Barber created a personal liability upon her for the support of Helen Reid.- (24 N. Y., 130; 2 id., 500; 11 Paige, 334, 347; Lupton v. Lupton, 2 J. Ch., 614.) Johnson took title to the land subject to the charge. (2 Redf. on Wills, 210, § 15, subd. 7.) Sprague was not charged with notice, either actual or constructive, that the bond and mortgage were trust property. (46 N. Y., 384, 392; 15 id., 354; Gerard’s Title to Real Estate, 592; 8 Cow., 260; 3 Wend., 208; 1 R. S., 727, § 75 [56] ; Downing v. Marshall, 23 N. Y., 366.) The purchaser obtained a| valid title as against the trustee or the cestui que trust. [Moore v. Met. Nat. Bk., 55 N. Y., 41; Davis v. Beckstein, 15 Alb. L. J., 432; Armour v. M. C. R. R. Co., 65 N.Y., 123.) Helen Reicl had either the right to inforce the trust against the land, or she had a life estate in the land. (1 R. S., 729, §§ 47, 49, 55, 60, sub. 3; Verdine v. Slocumb, 17 Alb. L. J., 13; 9 Paige, 107; 5 Barb., 109; 23 N. Y., 298, 314, 316; 3 Barb. Ch., 77.) The deed passed to Johnson only the vested remainder in fee ; and that being the only consideration of the bond and mortgage, they both became the private property of Catharine Barber, and the assignment gave Sprague a perfect title to them. (1 R. S., 738, 739, §§ 136, 140, 142, 143, 145; id., 748, §§ 1, 2; N. Y., 242; 5 Seld., 49.) Sprague being a bona fide purchaser of the bond and mortgage for a full and valuable consideration without knowledge or notice, express or implied that the sale to him was made in contravention or violation of the trust, acquired a perfect title thereto. (51 N. Y., 353; Story's Eq. Jur. [10th ed.], 410; T. & B. Law of Trustees, 200, 818; 1 R. S., 730, § 85 [66]).</p> <p>Catharine Barber had no power or authority to assign or sell the bond and mortgage, and could not convey a good title to it as against the cestui que trust. (3 R. S. [5th ed.], 22, § 84; Rathbone v. Mooney, 58 N. Y., 463 ; 22 id., 535 ; 35 id., 283 ; 40 id., 487; 47 id., 421; 61 id., 88; 64 id., 220; Ballard v. ■ Sampson, 40 id., 314; Corell v. Hill, 4 Den., 323.) When a purchaser has knowledge of any fact sufficient to put him upon inquiry as to the existence of any right or title in conflict with what he is about to purchase he is not a bona fide purchaser. (Kelly v. Smith, 26 N. Y., 18 ; Williams v. Brown, 15 id., 354.)</p>

This action was brought to recover for work alleged to have been done and materials furnished in grading and laying a sidewalk on one of defendant’s streets. A portion of the work was claimed to have been done under a contract between the parties executed December 20, 1870. The facts appear sufficiently in the opinion. Exceptions were ordered to be heard at first instance at General Term. The alleged contract of December 20, 1870, was invalid.

(Reported below, 9 Hun, 561.) This action was brought upon two bills of exchange drawn by one Horace Loveland on defendant, of one of which the following is a copy : “ $1,000. Tilsonburg, July 4, 1874. “Two months after date pay to the order of myself one thousand dollars in gold coin, value received, and charge the same to account of HORACE LOVELAND. “A. H. Griswold, Whitehall, N. Y. (Indorsed) “ Pay to the order of the Merchants’ Bank of Canada.

<p>This court cannot review a-decision of the Supreme Court reversing, upon a question of fact, a surrogate’s decree on application for the probate of a will.</p> <p>Tyler v. Gardiner (35 N. Y., 559), distinguished.</p> <p>This court may, however, on appeal from the judgment of the Supreme Court, correct any error of law in granting or refusing a new trial'in such case. (2 R. S., 67, § 58.)</p> <p>The only direction or order the Supreme Court can make upon the reversal is to award an issue to be tried by a jury as directed by the statute. (2 R. S., 66, § 55 et seq., id., 609, § 98.)</p> <p>Accordingly, held, that an order of the Supreme Court upon reversal of a surrogate’s decree on the facts, remitting the proceedings to the surrogate was error.</p> <p>Also, held, that an award of costs was error, as they were awarded by reason of a mistake in the practice; that the right to costs in such case cannot be determined until final judgment is given admitting the will to, or refusing probate.</p>

The nature of the action and the facts are set forth sufficiently in the opinion. It was discretionary with the judge at Special Term whether to refuse or allow this action to be continued. (Beach v. Reynolds, 53 N. Y., 3; Stewart v. Jones, 38 N. Y. Supr. Ct. R., 366; Soher v. Fargo, 47 How. Pr., 288; 1 Hun, 312.) This action comes within chapter 733, Laws of 1871, and must be brought within one year after the cause of action accrued.

(Reported below, 10 Hun, 582.) This action was brought to recover an alleged deficiency arising on foreclosure sale, against defendant as executor of the will of John Heiden, upon a covenant on the part of the testator to pay portions of a mortgage debt contained in two deeds from the mortgagor to said Heiden, of portions of the mortgaged premises.

, of One Hundred and Second street. The facts are stated sufficiently in the opinion. There being no disputed question of fact, a peremptory writ of mandamus was proper in the first instance. (People ex rel. Carlton v. Asten, 7 Hun, 228; People ex rel. Doyle v. Green, 3 id., 755.) A mandamus will not be issued because the relator had a complete and adequate remedy by action. (People ex rel. Belden v. Contracting Board, 27 N. Y., 378; People ex rel.

<p>The parties to a contract may provide by express stipulation for a shorter limitation to actions thereon than that fixed by the general law.</p> <p>It seems, that an injunction issued at the suit of a third person against one of the parties to a contract, restraining him from bringing an action thereon within the time limited by the contract, does not suspend the running of the limitation, or relieve the party from forfeiture under it.</p> <p>The provision of the Code (Old Code, § 105; Hew Code, § 406), saving the rights of parties under the statute of limitations when they are stayed by injunction, applies only to cases governed by the statute; it has no application to a limitation prescribed by contract.</p> <p>A policy of insurance contained a provision that no suit for the recovery of any claim thereunder should he sustainable unless commenced within twelve months after loss or damage. In an action upon the policy, wherein this provision was set up by defendant as a bar, to avoid the defense plaintiff showed that in an action brought by a third person against the holders of the policy and the insurance company, an injunction order was granted, restraining the company from paying and the holders from receiving the loss or damage arising under the policy. Held, that the injunction did not restrain the bringing of an action upon the policy.</p> <p>An injunction order, unless the words are clear, will not be construed as restraining acts which will be beneficial to the plaintiff.</p>

(Reported below, 9 Hun, 231.) The complaint alleged, in substance, that defendant sold and transferred by delivery to plaintiff, for valuable consideration, a promissory note, which was void for usury in its inception; that plaintiff sued the makers, who interposed the defense of usury; that plaintiff notified defendant of the bringing of the action and of the defense set up, and requested him to take charge of the prosecution of said action and that he would be held liable…

<p>A. judgment against a deceased person, although disputed or rejected by his personal representatives, need not be sued over in order to authorize a decree for its payment by the surrogate.</p> <p>The -surrogate may, upon application for such a decree, inquire into and pass upon alleged payments, made to apply upon the judgment, and determine the amount due thereon, and may also determine who is the owner of the judgment and entitled to the, money; but he has no jurisdiction to determine whether there has been an accord and satisfaction, or whether the estate is entitled in equity to a release or discharge, either in whole or in part, from the judgment.</p> <p>It seems that the remedy of the executors or administrators to prevent the inforcement of the judgment, and to obtain relief where the surrogate has no jurisdiction to grant it, is by resort to the proper judicial tribunals. This may be had either before or after a decree for the payment of the judgment, and a restraining process obtained either to prevent the decree or its inforcement.</p>

This action was upon a guaranty, which is set forth in the opinion ; wherein the material facts are also stated. The delay in foreclosing the mortgage was sufficient laches to discharge the guarantee.

The trustees proposed to take a strip of land fifty-two feet six inches wide. Henry A. Burr, one of the land-owners, answered the petition, claiming in substance that the act only authorized the taking of a strip of the width of Franklin street, which was thirty-five feet, also that the act was in violation of section sixteen of article six of the State Constitution.

(Reported below, 11 Hun, 545.) This was an action of ejectment to recover certain premises situate in the county of Washington. It has been twice before to this court. A memorandum of the decision upon the first appeal will be found in 65 Nevr York, 581: the case upon the second appeal is reported in 68 New York, 153.

<p>Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of blew York, affirming a judgment in favor of plaintiff, entered upon a verdict.</p> <p>This action was brought to recover damages for injuries sustained by plaintiff in consequence of being run over by one of defendant’s cars, through the alleged negligence of the driver.</p> <p>The facts pertinent to the questions discussed are set forth sufficiently in the opinion.</p> <p>The court erred in admit-admitting evidence of the declarations of the conductor, said to have been made a week after the accident. (Luby v. H. R. R. R. Co., 17 N. Y., 131; Whitaker v. Eighth Ave. R. R. Co., 51 id., 295.) A witness cannot be cross-examined as to any fact which is collateral and irrelevant to the issue, merely for the purpose of contradicting him by other evidence. (1 Greenl. Ev., § 449 and note; Whart. Ev., § 559; Bap. Ch., etc., v. Brooklyn F. Ins. Co., 28 N. Y., 153, 159, 160; Carpenter v. Ward, 30 id., 243, 245, 249, 250; Plato v. Reynolds, 27 id., 586; Elton v. Larkins, 5 C. & P., 385; People v. Stokes, 53 N. Y., 164, 176; 2 Phil, on Ev. [C. & H. notes, 5th Am. ed.], 903, 969, 970 m. p.; Atty. Genl. v. Hitchcock, 1 Ex., 91, 99; Hildeburn v. Curran, 65 Pa. St., 59-63.) When a proper question calls out an irresponsive answer, an exception does not lie, even if' the answer is improper; the answer may be stricken out. (Travis v. Barger, 24 Barb., 614.) Plaintiff’s offer to let the evidence erroneously admitted be stricken out did not cure the error in its admission and could not deprive the defendant of its exception. (Baird v. Gillett, 47 N. Y., 186, 188; Erben v. Lorillard, 19 id., 299; Arthur v. Griswold, 55 id., 400, 408; Penfield v. Carpenter, 13 J. R., 350; Green v. H. R. R. R. Co., 32 Barb., 25, 34; Coleman v. People, 58 N. Y., 561, 562; Flood v. Mitchell, 4 Hun, 813; 15 Alb. L. J., 232, 233.)</p> <p>The evidence offered by plaintiff to impeach the testimony of defendant’s conductor was properly received. (1 Greenl. Ev., §§ 462, 463; Gilbert v. Sage, 5 Lans., 287, 292; Wills v. People, 3 Park. Cr., 473; Sloan v. N. Y. C. R. R. Co., 45 N. Y., 125; Patchin v. Astor Mut. Ins. Co., 3 Kern., 268; Pendleton v. Empire H. Co., 19 N. Y., 13; Shufflin v. People, 4 Hun, 16; Merrit v. Briggs, 57 N. Y., 651; Chester v. Dickerson, 54 id., 651; Carpenter v. Ward, 30 id., 243; Plato v. Reynolds, 27 id., 586; Specht v. Howard, 16 Wall., 564; People v. Stevens, 4 Park. Cr., 137.)</p>

(Reported below, 10 Hun, 95.) This action was brought by plaintiff as assignee in bankruptcy of John F. Schepeler, of the firm of Schepeler & Co., to foreclose a mortgage executed by defendants to secure a bond of defendant, George C. Kretz.

(Reported below, 11 Hun, 459.) This action was brought by plaintiffs as executors of the will of Neil Dougherty, deceased, to obtain a construction of said will. The will, after various bequests, contained the following clauses, which are the ones in question: “ Fifth.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury.</p> <p>The nature of the action and the facts are set forth sufficiently in the opinion.</p> <p>Sureties to an official bond are only liable for the future conduct of their principal. (Meyers v. U. S., 1 McL., 493; 16 Iowa, 81; 5 Pet., 389, 573; 4 Ala., 607; Bissell v. Saxton, 66 N. Y., 55; 1 McL., 493.) In an action upon the bond of an officer, his official reports are not conclusive as against his sureties, but subject to explanation. (66 N. Y., 55; Fake v. Whipple, 39 id., 394; Gottsberger v. Smith, 5 Duer, 566; Brown v. U. S., 5 Pet., 389.)</p> <p>The bond protected against the past as well as future misconduct of the executor. (2 Edm. Stat., 74, § 20 ; 2 id., 78, § 42 ; Baggott v. Boulger, 2 Duer, 169; Gottsberger v. Taylor, 19 N. Y., 150.) The decree of the surrogate was equally as binding and conclusive upon the sureties to the bond as upon the executor. (2 Duer, 179; People v. Downing, 4 Sandf., 189; Stovall v. Banks, 10 Wall., 583; Leavett v. Dabney, 9 Abb. [N. S.], 373; Meth. Churches v. Barker, 18 N. Y., 463; Thayer v. Clark, 48 Barb., 243; 4 Abb. Ct. App. Dec., 391.)</p>

(Reported below, 8 Hun, 562.) The facts pertinent to the question discussed appear sufficiently in the opinion. The question to the prisoner on his cross-examination as to how many times he had been arrested was proper. (People v. Le Beau, 34 N. Y., 223; People v. Real, 42 id., 270, 280-282; People v. Brandon, id., 265; People v. Conners, 50 id., 240; Southworth v. Bennett, 58 id., 659; G. W. T’p’ke Co. v. Loomis, 32 id., 127; Howard v. City F. Ins.

Tuthill. The action was brought to foreclose two mortgages executed by the defendant to one Woodhull, assigned by his administrators to plaintiff. The first answer was demurred to; demurrer sustained with leave to defendant to amend. He served an amended answer, a portion of which was tricken out.

<p>. Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department in favor of plaintiff, entered upon an order overruling exceptions and directing judgment upon a verdict.</p> <p>This action was brought originally against George Hart Mumford and Anne E. Mumford to recover a sum of money upon grounds stated in the complaint substantially as follows: On the 10th of September, Elizabeth G. Scholey died, leaving a will, under which the plaintiff, one Worcester, and George H. Mumford were appointed her executors. Worcester was removed, and Mumford died September 30, 1871, leaving a will, of which the said George Hart Mumford and Anno E. Mumford were the executors. At the time of his death he had in his possession as executor of Mrs. Scholey certain United States bonds, and these came into the hands of his executors as such ; the plaintiff demanded the bonds and afterwards (November 8th, 1871,) obtained an order from the surrogate of Monroe county requiring one of them (George Hart Mumford) “ forthwith to deliver the bonds to the plaintiff.” Defendants refused to do so, alleging that commissions were due to the estate of George H. Mumford, and that those should be first paid. This claim was disputed by the plaintiff, and thereupon the surrogate having jurisdiction of the matter of said accounts decided in favor of the claim, and adjudged that they were as such executors entitled to the money claimed in this action, as upon payment over by George H. Mumford of said bonds in his life-time. That the plaintiff thereupon paid the money and received the bonds. The surrogate afterwards reversed his decision as erroneous “ in matter of law.” The complaint then alleges “ that before the commencement of this action a demand was made upon the said defendants in his behalf for said sum of $474.77, which was refused.” A judgment was asked against them for the amount.</p> <p>The answer denies that the defendants refused to give up the bonds, but on the contrary agreed and offered to deliver them up ” upon the payment of such sums as should, upon accounting before the surrogate, be found due to the estate of the deceased executor, George H. Mumford; that the claim for commissions was submitted to the surrogate, who determined the amount due for commissions, “and thereupon plaintiff called upon defendants” and paid them “the amount so determined, and the defendants thereupon delivered up said bonds.” The case has been to this court twice before the present appeal. (See 60 U. Y., 498 ; 64 id., 521.) Between the second trial and the decision in this court, George Hart Mumford died, and the action was continued against Anne E. Mumford, as survivor. She subsequently died, and the action was revived and continued against her executor, the present defendant. Upon trial it appeared that the demand for a return of the sum paid was made of George Hart Mumford; the facts were proved substantially as alleged in complaint. Defendant’s counsel moved to dismiss the complaint, on the ground that plaintiff could not maintain the action against the present defendant, which motion was denied, and said counsel duly excepted. Said counsel moved for a nonsuit upon the ground, among others, that no demand for repayment of the money was made of Mrs. Mumford. The motion was denied, and said counsel duly excepted. The court directed a verdict for plaintiff. <■</p> <p>This action could only be maintained after demand for repayment or return of the money. (Sears v. Patrick, 23 Wend., 528; Cooley v. Bettis, 24 id., 203; Walrath v. Thompson, 6 Hill, 540; Stevens v. Hyde, 32 Barb., 181; Schofield v. Whitlock, 49 N. Y., 259; Freeman v. Jeffries, L. R., 4 Ex., 189; Chouteau v. Suydam, 21 N. Y., 182.) The question whether payment by plaintiff was voluntary or otherwise should have been submitted to the jury. (60 N. Y., 201; Viner v. Steamship Co., 50 id., 26; Justice v. Lang, 52 id., 323; Ashley v. Reynolds, 2 Stra., 915; Knibbs v. Hall, 1 Esp., 84; Harmony v. Bingham, 12 N. Y., 110; 1 Duer, 323; 2 Sand. [S. C.], 475; Miller v. Miller, 68 Penn. St., 486.)</p> <p>The money having been paid under an erroneous decision of the surrogate can be be recovered back. (Clark v. Pinney, 6 Cow., 299; Maghee v. Kellogg, 24 Wend., 32; Sturgess v. Allis, 10 id., 354; Garr v. Martin, 20 N. Y., 306; 1 Stephens’ N. P., 326, 357; Garratt v. Hooper, 1 Dowl. P. C., 28; Lott v. Swezey, 29 Barb., 87; 1 Grreenl. Ev., § 511; Belden v. Meeker, 2 Lans., 473; Barber v. Winslow, 12 Wend., 102.) The commissions having been paid under duress, the principle of voluntary payments has no application to them. (Harmony v. Bingham, 12 N. Y., 108; Briggs v. Boyd, 56 id., 289; 1 Hil. on Torts, 46; 1 Steph. N. P., 358; Morgan v. Palmer, 2 B. & C., 729; Clinton v. Strong, 9 J. R., 201, 370; Bates v. N. Y. Ins. Co., 3 J. Cas., 238; Townsend v. Dyckman, 2 E. D. S., 224; Moulton v. Bennett, 18 Wend., 586; Britton v. Frink, 3 How. Pr., 102.) The case was properly revived against the executor of the survivor of the original defendants. (Un. Bk. v. Mott, 27 N. Y., 633; McVean v. Scott, 46 Barb., 384; Fine v. Righter, 3 Abb. [N. S.], 385.)</p>

TMs action was brought by plaintiff as supervisor of the town of Morehouse, Hamilton county, to recover against defendant, his predecessor in office, for moneys and securities belonging to the town alleged to have been erroneously omitted in his accounts rendered to the town auditors, and to have been converted to his own use. The facts appear sufficiently in the opinion. Plaintiff was not the proper party to bring this action.

The nature of the undertaking and of the rights of the parties thereto show that it is a several undertaking. (1 Pars. on Con., 11, 21; Slingsby’s Case, 5 Rep., 19; Southcote v. Hoare, 3 Taunt., 89; Sorsbie v. Parks, 12 M. & W., 146; 5 T. R, 522; In re Taylor, 7 How., 212; Nicholls v. Ingersoll, 7 J. R., 145; Kibbe v. Ballard, C. & C. Cas., 56; 1 Tidd’s Pr. [8th ed., 1824], 282.) The undertaking of bail is not an undertaking by mere sureties and should not be so construed.

(Reported below, 9 Hun, 121.) This was an action upon a policy of fire insurance. The material provision of the policy and the facts are sufficiently set forth in the opinion. The application was a part of the policy and a warranty and cannot be limited to mere identification of the property. (Le Roy v. Market Ins. Co., 45 N. Y., 80; 39 id., 90; Clinton v. Hope Ins. Co., 45 id., 454; Steward v. Phœnix Ins. Co., 5 Hun, 261; Owens v. Hol. Pur. Ins.

This action was brought to recover the purchase-price of certain shares of stock alleged to have been purchased by defendant of plaintiff. The facts appear sufficiently in the opinion. As there was no mutual agreement between the parties when defendant executed the memorandum of contract it could not he inforeed.

<p>Reported below, 5 Hun, 605.</p>