Volume 73 — New York Reports

This was a motion for a reargument. The appeal was from an order of the General Term of the Court of Common Pleas of the city and county of New York, reversing an order of Special Term, which vacated an order granting an attachment therein. The appeal was dismissed. The facts material to the questions discussed appear sufficiently in the opinion.

<p>A principal is only bound by an act of his agent in excess or abuse of actual authority, where a thtid person, believing and having a right to believe that the act was within the authority, has acted or refrained from acting in reliance thereon, and would sustain damage if the act of the agent was not considered that of the principal.</p> <p>A policy of fire insurance contained a condition declaring it void in case the premises insured should become and remain vacant for more than fifteen days without notice to the company and consent indorsed on the policy; also a provision that no officer, agent or representative of the company should be held to have waived any of its conditions unless such waiver was indorsed thereon in wilting. In an action upon the policy it appeared that the dwelling insured became and remained vacant for more than fifteen days. On the day it was vacated a general agent of the defendant was notified, and was asked to consent thereto, which he did, and upon being asked if it was necessary to have the consent indorsed upon the policy, replied that it was not; that it was indorsed upon his book and was all right. The agent did make a memorandum of the consent in his register. Ho indorsement was made upon the policy, and the agent made no report to the company of the application for or the giving of consent. Held, that the evidence failed to show a valid consent or waiver of the condition, and that plaintiff was properly nonsuited; that, although the agent had apparent authority to consent, and, in the absence of special restictrions, to waive conditions in the policy; yet, as the mode of giving consent was specified, and the power of the agent to waive the condition was limited to an indorsement on the policy, which limitation plaintiff is to be presumed to have known, an oral consent or waiver did not bind defendant.</p> <p>Walsh v. Hartford Mre Inswrance Company (9 Hun 421), reversed.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, in favor of defendant, entered upon an order reversing an order of Special Term which overruled a demurrer to the complaint herein, and sustaining the demurrer. (Reported below, 8 Hun, 362.)</p> <p>This action was for false imprisonment. The allegations of-the complaint are set forth sufficiently in the opinion.</p> <p>When plaintiff was convicted he was not legally liable to the punishment imposed. (Ex parte Lange, 18 Wall., 165; People v. Liscomb, 60 N. Y., 570.) Plaintiff was not compelled to stand or fall by the record as made by defendant, so that no notice of what was done under it can be taken by the court having jurisdiction herein. (Gahan v. Lafitte, 3 Moore P. C. C., 282; People v. Carter, 29 Barb., 203.) Final judgment having been rendered in plaintiff’s case, defendant had no power to open it to render a different judgment upon the same facts, and is liable for so doing. (1 Wait’s Pr., 12; People v. Liscomb, 60 N. Y., 576; Butler v. Van Wyck, 1 Hill, 459; 1 Cooley’s Blackstone, 70, note 5; Barn’s Legal Judgment [Townshend’s ed.], 424; Ex parte Lange, 18 Wal., 165; U. S. v. Un. Pac. R. R. Co., 91 U. S. R., 91.) When the United States Supreme Court determined that the writ of habeas corpus should issue, it necessarily determined that plaintiff’s imprisonment was illegal. (People v. Liscomb, 60 N. Y., 570.) Jurisdiction is the right to pronounce judgment acquired through due process of law. (10 Co., 73 a; 1 Bulstr., 211; Hale’s Anal., § 11; Halifax Anal., b. 3, c. 8, num. 4; U. S. v. Arredondo, 6 Pet., 691, 709; 2 How. [U. S.], 319, 339; 3 Metc., 460, 462; 1 Hurd on Freedom and Bondage, 22; Sprague’s New Science of Law, 4; In re Tirnan, 5 B. & S., 645, 672; Du Ponceau on Jurisdiction, 21; Lock v. Ashton, 12 Q. B., 874; Martin v. Marshall, Hob., 63; State v. Sauvinet, 24 La. An., 119; 13 Am. R., 115; Austin on Jurisprudence, 793.) As to what is due process of law. (Thompson’s Magna Charta, 52, 82, 83, 113, 127, 155, 423; 2 Coke's Inst., 50; Murray's Lessee v. Hob. Land Co., 18 How. [U. S.], 276; In re John and Cherry Sts., 19 Wend., 676; 1 Reeves’ Hist-Eng. Law, 249; 2 Story Const., § 1789; Green v. Briggs, 1 Curtis C. C., 326; Westervelt v. Gregg, 12 N. Y , 209; Taylor v. Por. ter, 4 Hill, 146; Burch v. Newbury, 10 N. Y., 397; Embury v. Connor, 3 N. Y., 517; Wynhamer v. People, 13 id., 416; of Health v. Heister, 37 id., 682; State v. Simons, 2 Spear, 767; U. S. Const., art. 5; Rowan v. State, 30 Wis., 129-148; 1 Kent’s Com. [11th ed.], 600; Bk. of Columbia v. Okley, 4 Wheat., 235; Dart. Col. v. Woodward, 4 id.; Sedg. Stat. & Con. Law, 537; Cooley’s Const. Lim., 354, 397; Mayo v. Wilson, 1 N. H., 53; McCready v. Sexton, 29 Iowa, 356; 4 Am. R., 229.) The right of a court to pronounce judgment, by due process of law, demands three out of the five following requisites, viz., jurisdiction of the territory. (Story’s Confl. Law, §§ 18, 20, 539; Rodenburg De Stat., chap. 3, § 1, p. 7; Clark’s Tr. on Extradition, 96; Sedg. Stet. Law, 70; Voet De Stat., § 4, ch. 2, n. 7, p. 124; 1 Boullenois Prin. Gen., 6, p. 4; 1 Foullier, 92; Fit. prel., §§ 8, 112; Blanchard v. Russell, 13 Mass., 4; Bk. of Augusta v. Earle, 13 Peters, 519; Lawrence’s Wheaton, 188; Story’s Confl. Law,§ 537; Huberus, tom. 2, lib. 5, tit. 1, de Foro Compct., § 38, p. 722; J. Voet ad. Pand., lib. 5, tit. 1, de Judiciis, 303; 1 Boullenois, obs. 25, pp. 601, 618, 619, 635; Henry Foreign Law, ch. 8, p. 54, ch. 9, p. 63; Erskin,e, Scot. Inst., b. 1, tit. 2, § 16-22; Dig., lib. 2, tit. 1, 1. 20; Yelverton v. Velverton, 1 Sw. & Tr., 586; Warrender v. War render, 9 Bligh, 144; Litchfield v. Burwell, 5 How. Pr., 341; Ex parte Green v. Oneida Common Pleas, 10 Wend., 592; Fiske v. Anderson, 12 Abb., 8; Fenton v. Garlick, 8 J. R., 150; Andrews v. Heriot, 4 Cow., 524; Barnes v. Harris, 4 N. Y., 377; Du Ponceau on Jurisdiction, 34.) Jurisdiction of the subject-matter. (Burckle v. Eckhart, 3 N. Y., 132, 137; Coffin v. Tracy, 3 Caines, 129; Davis v. Packard, 7 Peters, 276; Dudley v. Mayhew, 3 N. Y., 9; McMahon v. Rauhr, 47 id., 67; People v. The Clerk, etc., 3 Abb., 309; 1 Kent’s Com., 281; Viburt v. Frost, 3 Abb. Pr. R., 119; Binghams. Dis-brow, 37 Barb., 24; The Mary, 9 Cranch, 126; Shriver’s Lessee v. Lynn, 2 How., 60.) Jurisdiction of the process. (Fitzh. Abr. Monstraus de Faits, pi. 182; Year Bk., 39 Hen., 6, p. 17, pl. 21; Broom’s Const. Law, 165; Martin v. Marshall, Hob., 63; Entich v. Carrington, 2 Wils., 275; Perkins v. Proctor, 2 id., 382; Mitchell v. Foster, 12 A. & E., 472; Grumon v. Raymond, 1 Conn., 40; Comyn’s Dig., tit. Imprisonment [H. 5, 7]; 2 Inst., 52, 186, 187; H. P. C., 94; Greene v. Briggs, 1 Curtis C. C. R, 311; In re Tivnan, 5 Best & Smith, 645; Klüber, § 66; Martens’ Précis, § 101; Opinions Att’ys-Genl., vi. 485, vii. 6 ; In re Kaine, 14 How., 103; Clark’s Treatise on Extradition, 91; Lessees of Payne v. Moreland, 15 Ohio, 444; Borden v. State, 11 Ark. [6 English], 519; Lessee of Walden v. Craig's Heirs, 14 Pet., 154; Webster v. Reid, 11 How., 450; U. S. v. Thompson, 2 Cr. C. C. R., 409; Countess of Rutland’s Case, 6 Rep., 54 a.) Jurisdiction of the person. (1 Saund. by Wins., 87, 90, n. 1; 1 Cowp., 10; 3 T. R., 185; Barnes v. Harris, 4 N. Y., 377; Harriott v. The New Jersey R. R. Co., 8 Abb., 284; In the Matter of Ferguson, 9 J. R., 289; McMahon v. Mut. Benefit Life Ins. Co., 3 Bosw., 644; 8 Abb. Pr., 297; Hunt v. Inhabitants of Hanover, 8 Metc., 343; Turner v. Roby, 3 N. Y., 196; King v. Pecham, Caith., 406; Rex v. Clegg, 1 Str., 475; Hurd. Hab. Corp., 363; Rex v. The Chancellor, etc., 1 Str., 557; Bloom v. Burdick, 1 Hill, 139; Bustard v. Gates, 4 Dana, 435; The Mary, 3 Con. [U. S.], 212; Boswell’s Lessee v. Otis, 9 How. [U. S.], 350; Borden v. Fitch, 15 J. r., 142; Hilburn v. Woodworth, 5 id., 41; Robertson v. Ex’rs. of Ward, 8 id., 80; Fenton v. Garlic, id., 96; Pawling v. Bird, 13 id., 192; Gwim v. McCarroll, 1 S. & M., 368; Steers v. Steers, 3 Cushman, 513; Edwards v. Toomer, 14 S. & M., 75; Smith v. State, 13 id., 140; Harris v. Haldeman, 14 How., 336; 1 Smith’s Lead. Cases, 834 [5th Am. ed.]; Mills v. Duryee, 2 Hare & Wal. [L. C.], 815; In Matter Flatbush Ave., 1 Barb., 289; Mason v. Killibrum, 2 Yerg., 383; Shafer v. Gates, 2 B. Mon. B., 455; 1 Camp., 66; Bordens. State, 11 Ark., 520, 569; Webster v. Ried, 11 How. Pr. R., 437; Harris v. Hardman, 14 id., 334; Shumway v. Stillman, 6 Wend., 447; Bigelow v. Stearns, 19 J. R., 39; Stanton v. Ellis, 12 N. Y., 578; Mackey v. Gordon, 34 N. J.; 291; Farnham v. Hildreth, 32 Barb., 277; Cole v. Hudson, 63 id., 234; Donnolly v. Libby, 31 N. Y. Sup. Ct. R, 279; Bearmain v. Sir W. Scott, 3 Camp., 590.) Jurisdiction of the trial. (Erskine’s Speeches [Reeves & Turner’s ed., 1870], 163; Rowan v. State, 30 Wis., 129 ; Rex’ v. Bolton, 12 B., 66 ; U. S, v. Burr, 2 Wh. Cr. Cas., 573; Broom’s Const. Law, 165; Gave v. Mountain, 1 M. & G., 261; Rex v. Moulton, 1 Q. B., 667; Painter v. Liverpool Gas Co., 3 A. & E., 453; R. v. Totness, 7 Q. B., 690 ; R. v. Lightfoot, 6 E. & B., 822; Archbold Cr. Pl., 108; Const. Mass., 1780, art. XII, 1 Hough., 624; Const. New Hamp., 1792, art. XV, 2 id., 9; R. v. Layer, 16 Howell St. Pr., 101; 2 Hale’s Pleas of the Crown, 258, 317; Case of Stephen Le Ferrour, 2 Hale, 317; R. v. Picton, 30 Howell St. Tr., 895; 2 Inst., 178, 179; Keilw. 70; Rast Ent., 385 ; Hawk., b. 2, c. 30, § 16; 4 Bla. Com., 327; R. v. Juliana Quick, 3 Howell St. p. 360; R. v. Weston, 2 How. St. Tr., 914; May v. R. R., 3 Wis., 219; Shaver v. Starrett, 4 Ohio [N. S.], 494; Norval v. Rice, 2 Wis., 22; Vaugh v. Scade, 30 Miss., 600; Isom v. R. R., 36 id., 300; People v. Lane, 6 Abb. [N. S.], 105; 3 Blacks., 379; 1 Reeve’s His. Eng. Law, 87; Cruger v. R. R., 12 N. Y., 190, 193; Wynehaimer v. People, 13 id., 378, 427; People v. Carroll, 3 Park, c. 22; Const. Deb., ’ 1846, 540; People v. Cancemi, 7 Abb. P. R., 271, 301; Blackstone, vol. 1, 133, vol. 4, p. 189; Kilyngs R., 59; 1 Woodeson’s Lectures, 346; 3 Inst., 30; R. v. St. Michael, 2 W. Bl. 718; R. v. Mellor, 5 Cox C. C., 454; Shepherd v. The People, 25 N. Y., 406, 418; State v. Martin, 30 Wis., 216; 11 Am., 567; Ex parte Lange, 18 Wall., 163; Rex. v. Ellis, 5 B. & C., 395; The King v. Bourne, 7 A. & E., 58; The Queen v. Silversides, 3 Q. B., 406; King v. The Queen, 7 id., 795; Holt v. Regina, 2 D. & L., 774; 9 Jur., 538; Holland v. Queen, 2 Jebb. & S., 357.) The question of jurisdiction may be inquired into as a matter of a fact in all subsequent actions wherein any judgment in a foreign tribunal is brought m question. This principle of law applies to an action growing out of any matter in a Federal court, whether pleaded as the foundation of the action or as matter of defence. (Const. U. S., art. IV, sec. 1; Mills s. Duryea, 7 Cranch, 484; Story on Const., §§ 183, 1313; Webster s. Reid, 11 How., 437; Harris s. Hardeman, 14 id., 334; Christmas s. Russell, 5 Wall., 290; Elliott v Pearsall, 1 Pet., 328, 345; U. S. s. Arredonds, 2 id., 279; Voorhees v. Bk. of US., 10 id., 475; Wilcox v. Jackson, 13 id., 511; Shriver s. Lynn, 2 How., 60; Hickey s. Stewart, 3 id., 762; Williams v. Berry, 8 id., 540; 14 id., 334; Thompson s. Whitman, 11 Am. R., 435, note ; Sprague’s New Science of Law, 24; Lord Moncreff, Address Social Science Ass’n, 1874; Starbuck s. Murray, 5 Wend., 156; Marx s. Fore, 11 Am. R, 434; Noyes s. Butler, 6 Barb., 613; Kerr v. Kerr, 41 N. Y., 275; Kinnier v. Kinnier, 45 id., 541; Burckle v: Eckhart, 3 id., 137; Peacock v. Bell, 1 Saund., 74; 1 Win’s notes to Saunders, 96, note 2; Bissell s. Briggs, 9 Mass., 462; Hall v. Williams, 6 Pick., 222; Woodward s. Freewere, 6 id., 354; Moore s. Houston, 3 S. & R, 189; Harrington v. People, 6 Barb., 607; Sears v. Terry, 26 Conn., 273; Denning s. Corvin, 11 Wend., 648; People v. Cassels, 5 Hill, 164; R. v. Bolton, 1 Q. B., 66; R. v. Badger, 6 E. & B., 13; R. v. Wood, 5 id., 49; R. v. Justices of Totness, 2 L. M. & P., 230; R. v. St. Olavés Board, 8 E. & B., 529; In re Smith, 3 H. & N., 227; R. v. Nunnely, E. B. & E., 852; R. v. Cudland, 7 E. & B., 352; R. v. Backhouse, 30 L. J. Mc., 118; R. v. St. Jaméis, Westminster, 2 A. & E., 241; R. v. Inhabitants of Marlow, 2 East, 244; R. v. Justices of Yorkshire, 5$fT. R, 629; R. v. Justices of Cheshire, 1 P. & D., 93 ; R. v. Sheffield, etc., R. R., 11 A. & E., 194; The Whitbury, etc., Union Case 4 E. & B., 314 ; In re Penny, 7 id., 660; Mortimer v. 'S. Wales R. R., E. & E., 375 ; In re Hopkins, E. B. & E., 100; R. v. Recorder of Cambridge, 8 E. & B., 637; R. v. Cheltenham Com’rs, 1 Q. B., 467; In re Baker, 2 H. & N., 219; People s. McLeod, 3 Hill, 665; People s. Clark, 7 N. Y:, 390; Ohio L. and T. Co. v. De Bolt, 16 How., 428; Bucknow v. Finley, 2 Pet., 590; Bank of Augusta v. Earle, 13 id., 520; Martin v. Hunter, 1 Wheat., 334.)</p> <p>When the judgment of a court of . limited jurisdiction becomes a subject of legal investigation, the jurisdiction of the court or judge pronouncing such judgment must affirmatively appear upon the record to sustain its validity, otherwise such judgment is void. (Jones v. Reed, 1 Johns. Cas., 20; Wells v. Newkirk, id., 228; Powers v. People, 4 J. R., 292; Bloom v. Burdick, 1 Hill, 130; Adkins v. Brewer, 3 Cow., 206; Turner v. Roby, 3 N. Y., 193.)</p> <p>The Circuit Court of the United States being a court of limited jurisdiction in respect to all criminal trials there was no presumption of law that defendant acted within his authority, and upon its being questioned he was bound to show affirmatively his jurisdiction to protect him as a judge. (Dicas v. Brougham, 6 Car. & P., 249 ; Christie v. Unwin, 11 A.& E., 373; Houlden v. Smith, 14 Q. B., 841; Carratt v. Morley, 1 id., 18; Watson v. Bodell, 14 M. & W., 57; .Calder v. Halket, 3 Moore P. C. C., 76, 77; Denning v. Corwin, 11 Wend., 648; Sharp v. Speir, 4 Hill, 76; Striker v. Kelly, 7 Hill, 9; Staples v. Fairchild, 3 N. Y., 41; Halet v. Righters, 13 How. Pr., 43; Townley v. McDonald, 32 Barb., 604; Hills v. Mitson, 8 Ex., 750; Service v. Heermance, 1 J. R., 91; Roosevelt v. Kellogg, 20 id., 208; Stevens v. Ely, 6 Hill, 607; Sackett v. Andross, 5 id., 327; Maples v. Burnside, 1 Den., 332; Varnum v. Wheeler, id., 331; Coates v. Simmons, 4 Barb., 403; Morse v. Presby, 5 Foster, 299; McCormick v. Pickering, 4 N. Y., 276; 1 Smith’s Leading Cases [ed. 1873], 1116; Jackson v. Estey, 7 Wend., 148; The Matter of Mt. Morris Square, 2 Hill. 14; Williamson v. Berry, 8 How., 495; Williamson v. Ball, id., 566; In the Matter of Flatbush Ave., 1 Barb., 289; Forest v. The Commonwealth, 9 Casey, 338, 344; Owen v. Jordan, 27 Ala., 663; Foster v. Glazener, id., 391; Eastman, v. Jones, 2 Ga., 493; Colton v. Washington Ins. Co., 35 N. H., 162; Anderson v. Comrs. of Hamilton, 12 Ohio [N. S.], 636; Doolittle v. Chicago R. R. Co., 14 111., 381; People, v. Williamson, 13 id., 660; Peak v. City of Boston, 8 Pick., 218; Cooper v. Sunderland, 3 Clark, 114; v. Rescille, 4 Wis., 59; Muskett v. Drummond, 10 B. & C., 153; Brancker v. Molyneux, 4 M. & G., 226; Boswell’s Lessees v. Otis, 9 How., 336; Thatcher v. Powell, 6 Wheat., 119; Mahew v. Davis, 4 McLean, 213; Embury v. Conner, 3 Comst., 511; Eaton v. Badger, 33 N. H., 228, 237; Fiske v. Anderson, 33 Barb., 71; Commonwealth v. Blood, 97 Mass., 348; 2 Am. L. Cases, 603, 633; Thomas v. Robinson, 3 Wend., 267; Commonwealth v. Gould, 97 Mass., 538; Calvin v. Reed, 5 P. F. Smith, 375; Elder v. Reed, 12 id., 308; Borden v. Fitch, 15 J. R, 151; Folger v. Columbian Ins. Co., 99 Mass., 267; Suydam v. Key, 15 J. R, 446; City of Chicago v. Rock Island R. R. Co., 20 111.,. 286; Voorhees v. Bank of U. S, 10 Pet., 449; Florentine v. Barton, 2 Wall., 210; Dyckman v. The Mayor, 1 Sold., 434; Delaney v. Gault, 6 Casey, 63, 67; Ransom v. Williams, 2 Wall., 313; Ex parte Yerger, 8 id., 85; U. S. v. Hudson, 7 Cr., 32; U. S', v. Coolidge, Wheat., 416; Wheat. Cr. L., 76; Wheat. St. Tr., 87; Bingham v. Cabot, 3 Dallas, 383; Woody. Wagnon, 2 Cranch, 9; Brown v. Keene, 8 Pet., 112; Jackson v. Ashton, 8 id., 147; McCormick v. Sullivan, 10 Wheat., 192; Bk. U. S. v. Moss, 6 How. [U. S.], 40; Harrison v. Hadley, 2 Dill., 229, citing 4 Dall., 8; 7 Cranch, 32, 306; Blatch., 84; 1 Wash., 232; 8 How. [U. S.], 541; 1 Dill., 344, 348; Sergeant’s Const. Law; Turner v. Bk. of N. A., 4 Dale, 11; Mayfield’s Lessee v. Levy, 4 id., 330; U. S. v. Bird, 1 Spr. Dec., 299; U. S. v. Worrall, 2 D., 393; Whart. St. Tr., 189; U. S. v. Hare, 2 Wh. C. Cas., 300; U. S. v. Hudson, 7 Cr., 32; U. S. v. Coolidge,1 Wh., 415;° 1 Gall., 488; Penn. v. Wheeling, etc., 13 H., 519; U. S. v. Clark, 1 Gall., 497; U. S. v. MacKenzie, 1 N. Y. Leg. Obs., 374; U. S. v. Wilson, 3 Bl. C. C., 435; U. S. v. Ramse v. Hemp., 481; U. S. v. Barney, 3 Int. E. Rec., 46; U. S. v. Barney, 5 Bl. C. C., 294; Ex parte Bergen, 4 Am. L. T., 39; Ex parte Bolivian, 4 Cr., 75; U. S. v. Beavans, 3 Wh., 336; U. S. v. Libby, 1 Woodb. & M., 221; U. S. v. New Bedford Bridge, 1 W. &. M., 401; U. S. v. Lancaster, 2 McLean, 431; U. S. v. Irwin, 5 id., 178.) Every judge who acts without or beyond his jurisdiction is liable as a trespasser to the party injured. (Shriver’s Lessee v. Lynn, 2 How. [U. S.], 43; Lessees of Heckey v. Stewart, 3 id., 750; Striker v. Kelly, 7 Hill, 9 ; People v. Cassels, 5 id., 164; Harrington v. People, 6 Barb., 607; 1 Smith’s Lead. Cas. [5th Am. ed. 821; Rathbone v. Terry, 1 R. I., 73; Starbuck v. Murray, 5 Wend., 148; Mills v. Duryee, 2 Am. L. C. [H. & W.], 778; Cable v. Cooper, 15 J. R., 155; 2 Inst., 54, 55, 427; Hilarie Warren’s Case, 11 H., 7 ; Hale’s Analysis Civil Law, § XLIV; Hawkins’ Pleas of the Crown, b. 1, c. 28, §§ 4, 5, 6; Case of the Marshalsea, 10 Coke R., 76; Smith v. Dr. Boucher, Camp., 214; Perkins v. Proctor, 2 Wils., 382; Dícas v. Brougham, 6 C. & P., 249; Parsons v. Loyd, 3 Wils., 341; Pori v. Stevens, 17 Wend., 483-487; Case of J. V. N. Yates, 4 J. R., 318; Yates v. People, 6 id., 337; Yates v. Lansing, 5 id., 286; Barnes v. Harris, 4 N. Y., 379; Farnham v. Hildreth, 32 Barb., 277; Townley v. McDonald, id., 604; 1 Hilliard on Torts [4th ed.], 215; Comfort v. Fulton, 13 Abb., 276; Lancaster v. Greaves, 9 B. & C., 628; Morgan v. Brown, 4 A. & E., 515; Mygatt v. Wasliburn, 15 N. Y., 316, 321; Van Alstyne v. Erwine, II id., 341; Pr parte Haynes, 18 Wend., 611; Cadwell v. Colgate, 7 Barb., 253; Miller v. Adams, 52 N. Y., 409; People v. Liscomb, unreported; Flanagan v. People, 52 N. Y., 471; Clark v. Holdridge, 58 Barb., 61; Randall v. Brigham, 7 Wall., 523; Bradley v. Fisher, 13 id., 335, 351; McGregor v. Thwaites, 3 Best & Smith, 24; Addison, Law of Torts, 265; Loan Assn. v. Topeka, 20 Wall., 655.) The fact that defendant acted in good faith does not relieve him from liability. (Snyder v. Plass, 28 N. Y., 476; Hamilton v. Third Avenue Railroad Company, 53 id., 25; Parsons v. Harper, 16 Gratton E., 64; Barker v. Braham, 3 Wils., 368; Blythe v. Tompkins, 2 Abb. Pr. R., 468.) Defendant was liable for all expenses incurred by plaintiff. (Parsons v. Harper, 16 Grat., 73; Sandback v. Thomas, 1 Stark., 306; Foxhall v. Barnett, 22 Law J. R. [N. S.], Q. B., 7; 18 Jur., 1, 41; 22 E. L. & E., 179; Linsley v. Bushnell, 15 Conn., 225-235; Whipple v. Fuller, 11 Conn. Rep., 582; Gould v. Barratt, 2 M. & Rob., 171; Nowell v. Roake, 7 B. & C., 404.) Plaintiff can recover the value of his lost time measured by the nature, extent and profitableness of his business. ( Williams v. Vanderbilt, 28 N. Y. 217; Lincoln v. Saratoga R. R., 23 Wend., 425; Peoria Bridge Ass’n v. Loomis, 20 111., 235-252.) Plaintiff could recover for the injuries he sustained, including bodily pain, mental suffering and the indignity of a false imprisonment. (Hamilton v. Third Ave. R. R., 53 N. Y., 25; Leger v. Town of Barkhampstead, 22 Conn., 290; Beardsley v. Swann, 4 McLean, 333; Morse v. A. and S. R. R. Co., 10 Barb., 621; Shear-man & Redfield on Negligence [3d ed.], §§ 606, 606 a; Blake v. Midland Railway Co., 18 Q. B., 93; 10 E. L. & Eq. R., 437; Ransom v. N Y. and E. R. R., 15 N. Y., 415; Canning v. Inhabitants of Williamstown, 1 Cush., 451; Thompson v. Mussey, 3 Greenl., 305.) The first sentence of plaintiff was void. (1 Chitty Cr. Law, 251-252, 638; 2 East Pleas of the Crown, 737, 776; Westben’s Case, 1 Leach, 14; 2 Strange, 1133; Commonwealth v. -, 7 Mass., 245-249; Commonwealth v. Roby, 12 Pick., 496; U. S. v. Reid, 12 How. [U. S.], 361; Anon., Pet. C. C., 1.)</p> <p>There was no false imprisonment, as plaintiff, upon conviction, became liable to the punishment imposed by either or both the sentences set forth in the complaint. (U. S. R. S., § 1024; People v. Davis, 56 N. Y., 100; Comm. v. Birdsall, 69 Penn., 482; Carlton v. Comm., 46 Mass., 532; Booth v. Comm., id., 533; O’Connell’s Case, 11 Cl. & E., 307; Latham v. Queen, 5 B.& L., 641.) The first sentence having been expunged from the record, the second sentence when pronounced was the only sentence and the imprisonment complained of was lawful. (King v. Price, 6 East, 327; N. P. Co. v. Rock. R. R. Co., 7 Chi. Legal News, 33; Sheppard v.Wilson, 6 How., 273; Doss v. Tyack, 14 id., 312; U. S. v. Bassett, 9 Wall., 38; Kain v. People, 8 Wend., 215; Ex parte Watkins, 7Pet., 567.) The exercise of the power to vacate a sentence, in cases where the sentence is in part executed, does not violate the constitutional provision which forbids that one shall be twice punished for the same offense. (18 Wall., 170; Ratzky v. People, 29 N. Y., 124, 135; Foote v. People, 56 id., 323; Harris v. People, 59 id., 599.) The legality of the defendant’s acts must be determined by the law as it then stood. (Bassett v. U. S., 9 Wall., 38.) Defendant’s act in pronouncing the judgment was a judicial act, and affords no right of action against him. (Bushnell’s Case, 1 Mod., 118; 2 Hawkins, chap. 72, § 6; Floyd v. Baker, 12 Coke X., 23; Aire v. Sedgwick, 2 Roll., 199; Hammond v. Howell, 1 Mod., 184; 2 id., 218: Taffe v. Downes, 3 Moore’s P. C. C., 41, note; Suttmv. Johnstme, 1 T. R.; Yates v. Lansing, 5 J. R., 282; Bradley v. Fisher, 13 Wall., 336, 350, 351; Barhyte v. Shepherd, 35 N. Y., 251;' Viner’s Abr., tit. Judges; Floyd v. Baker, 12 Coke.)</p>

The action was brought to recover damages for personal injuries alleged to have been sustained by plaintiff, while an employee of defendant, by a collision on the road of defendant. The accident was the same by which a fireman and bralceman were killed, for whose deaths recoveries were had against defendant.. (See FliJce v. B. and A. B. R. Co., 53 1ST. Y., 550; Bjprmg v. B. and A. B. B. Co., 58 id., 56..) This case has once before been to this court.

(Reported below, 9 Hun, 686.) This action was brought by plaintiff, a manufacturing corporation, against defendants who were coroners of the city and county of Hew York, for the alleged conversion of a quantity of silverware. Plaintiff's evidence tended to show the following facts : The goods in question were sold conditionally to one Olney, in May, 1869, who proposed to open a retail store for such goods in the city of Hew York.

(Reported below, 11 Hun, 390.) The character of the indictment, and the facts, are set forth sufficiently in the opinion. When a statute creates an offense and expressly provides a punishment, its provisions must be followed out strictly and expressly. (Whart. Cr. Law, § 10; Colby’s Cr. Law, § 2; 1 Black. Com., 88; 1 Kent’s Com., 449, 453, 462, 465, 466, 467; 2 Bouv. L. D. [11th od.], 323; Pain’s R., 32; 6 Clancy, 171; Dingley v. Moore, Cro.

(Reported below, 7 Hun, 351.) This was an action to restrain the defendants, the superintendent of streets of the city of Binghamton, and persons employed by him, from… Held: that the superintendent had no legal right or authority to do this work, or to cause it to be done under the resolutions above mentioned; and directed judgment against the defendants for three dollars damages; and restraining them from further action, in so far as would affect the plaintiff’s premises.

(Reported below, 12 Hun, 668.) The plaintiff was jointly indicted with one Charles H. Melville; the indictment alleging in substance that they, with intent to cheat and defraud one Yetta Geroges, did falsely represent that a certain check, a copy of which was set forth in the indictment, purporting to have been drawn by one August P. Steinbach, on the Chemical National Bank of New York, was good and valid, and that the drawer had then the money on deposit in the bank.

Appeal by both parties from judgment of the General Term of the Superior Court of the city of New York, affirming a judgment, entered upon a decision of the court at Special Term. Held: as assignee, certain bonds then due, executed by plaintiff, secured by a trust mortgage on the premises, and alleged payment of other debts of plaintiff, not set forth in the answer, to the amount of $2,224.18. Judgment of foreclosure upon the $30,000 was demanded.

This action was brought against defendant as a stockholder of “The Black River Iron and Mining Company of New York,” a corporation organized under the general manufacturing act (chap. 40, Laws of 1848), under section 10 of said act, to recover certain debts of the corporation, on the ground that his stock was not paid up.

<p>The complaint in this action alleged, in substance, the making of a contract between plaintiff and defendant S. of the one part and defendant C. of the other, by the terms of which 0 agreed to pay to plaintiff and S. upon the performance of certain covenants §50,000 in cash and §50,000 in bonds of the N. P. R. Co.; that plaintiff and S. had performed on them part and C. had paid the §50,000 cash, but claimed that he was not liable to pay over the bonds because of non-performance, and had not done so, although the bonds had been demanded of him. Plaintiff asked an accounting and settlement between himself and S. and an adjustment of their rights between each other, and that C. be adjudged to pay the §50,000 in money or in the specified bonds to a receiver, and that he be restrained from paying to S. No claim for damages, because of non-delivery of the bonds, was set up, nor was there any allegation as to the value of the bonds. An injunction order was obtained restraining 0. from making payment to S. or any other person. The court found that plaintiff and S. had performed, but that immediately after performance they each notified 0. not to deliver the bonds to the other, each claiming and demanding the whole; for that reason, among others, 0. refused to pay or deliver to either. The court settled the rights of plaintiff and S. and directed a money judgment in their favor against 0. for the face of the bonds, with interest. Held, error; that a delivery of the bonds to a receiver would have met the requirements of the complaint; that a demand and refusal under the circumstances were not sufficient to charge C. with a liability to pay in money instead of bonds; that even if the action had been properly framed for the purpose, and such a demand proved as would have put 0. in default, all that could be recovered would be the market-value of the bonds at the time of refusal. To justify a recovery for the nominal value of the bonds the action should have been brought for damages.</p> <p>Wintermute v.. Cooke (7 Hun, 476), reversed.</p>

the Supreme Court in the third judicial department, affirming a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury. (Beported below, 9 Hun, 12.) The complaint in this action alleged in substance that plaintiff, during the life-time of Eliza Elmcndorf, commenced an action against her which was pending at her death.

(Reported below, 12 Hun, 431.) This action was brought against defendant, as trustee, to charge the trust estate in his hands with the amount of a claim for work done and materials used in repairing buildings upon the real estate held in trust. The facts appear sufficiently in the opinion. It was the duty of the trustee to have the repairs made, and pay for them out of the income of the estate. He could have pledged the income for that purpose.

This action was brought against defendant upon a guaranty of payment of a promissory note executed by Anthony Speis, her husband. Barton and Parlchouse, the original .holders of the note, brought an action against the maker and defendant, as guarantor, jointly. The defendants demurred, because of misjoinder of causes action; the demurrer was sustained with costs, with leave to plaintiff to amend on payment thereof.

<p>Motion" to dismiss appeal from order reversing judgment, entered upon a verdict, and granting a new trial. The facts appear sufficiently in the opinion.</p>

(Reported below, 12 Hun, 416.) The facts stated in the submission are substantially as follows : The plaintiffs, as the surviving trustees and executors of the will of George Hastings, deceased, were on the 8th ■day of May, A. D. 1875, the owners of a bond and mortgage executed by Sarah C. Stout and Thomas H. Stout, her husband, for the sum of $14,000 ; the mortgage covering-premises in the village of Irvington, Westchester county, Hew York.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment entered upon the report of a referee.</p> <p>This action was brought to foreclose a lien, claimed by plaintiffs as warehousemen, under chapter 738, Laws of. 1868/</p> <p>The property in question was a quantity of Brazil wood, which was stored by defendants, who composed the firm of Weld & Co., in a public warehouse, known as “ Kelsey’s-stores,” they receiving therefor the folio-wing receipt:</p> <p>“ Brooklyn, January 24, 1871.</p> <p>“ Received from Messrs. Wm. F. Weld & Co., in store No. 4 (Kelsey’s), ex ship California, to be held by us in storage and to be delivered upon their order, cargo of Brazil wood, say 30,054 quintals or 1,400 tons, more or less. Charges: Storage per month, twelve and one-half cents a. ton of 2,240 lbs., delivered; labor, receiving and delivering,, thirty cents.</p> <p>“JACKSON & UNDERHILL.”</p> <p>The further facts appear in the opinion.</p> <p>Defendants by leaving-the wood in store after the termination by notice of their former contract were estopped from denying that they assented. (Place v. McElvain, 38 N. Y., 99; Schuyler v.. Smith, 51 id., 309; Desdard v. Walbridge, 15 id., 374; 39; Coil v. Planer, 7 Robt., 413; Wells v. De Leyer, 1 Daly,. Mack v. Burt, 5 Hun, 28; McGovern v. West. R. R. Co., 28 How., 493; Robinson v. Pesant, 53 N. Y., 421.) The rights of the parties are to be determined by the law of their contract when the notice to defendants was given. (West. Tr. Co. v. Barber, 56 N. Y., 549.) Plaintiffs were not obliged to seek storage elsewhere for the wood to save-defendants expense. (Dubois v. Hermance, 56 N. Y., 675.)</p> <p>If plaintiffs had a right-to demand the removal of the wood, and it was not, after-proper notice, removed, they were bound to make the-damages as light as possible. (Dillon v. Anderson, 43 N. Y., 232; Hamilton v. McPherson, 28 id., 77; Sedgw. on. Dam., 361; Hecksher v. McCrea, 24 Wend., 410.) Plaintiffs, in the absence of any special agreement giving them a lien upon the wood, had no lien upon it, unless they acted in a public capacity, and were under some legal obligation to receive it on storage at a reasonable rate. (Cross on Liens, 16 11 Barb., 41; 8 id., 216; 28 N. Y., 252;. 3 Hill, 490.)</p>

• The facts appear sufficiently in the opinion. The provision of the policy, that other insurance, without consent of the insurer, should avoid the policy, was a valid and binding element of the contract between the parties. (Potter v. O. and L. Ins. Co., 5 Hill, 147; Egan v. W. Ins. Co., 5 Den., 326; Mullen v. H. F. Ins. Co., 17 N. Y., 609; Benedict v. Ocean Ins.

(Reported below, 11 J. & D., 18.) This action was brought to recover the value of a portmanteau and contents, alleged to have been delivered to defendant, at Troy, to be transported to New York, and to have been lost through its negligence. The case, upon a former appeal, is reported in 67 N. Y., 11. In the delivery of the portmanteau to defendant, the Grand Trunk Railway acted as plaintiff’s agent.

(Reported below, 11 Hun, 306.) The relator made application for the writ as a taxpayer of the county of Westchester, upon affidavits which stated in substance, that the State tax, levied in said county for the ;year 1875, was $337,002.52; that the county treasurer ■charged for his fees one per cent on 'all of said sum ; that he retained $2,000 and charged to the county $1,370.02, which was allowed to him by defendants.

The appellants who were The Charles Pratt Manufacturing Company, Charles Pratt & Caroline Kloss, objected to-the report on the ground that the act (chapter 334, Laws of 1873), by extending the bulk-head line rendered the opening-as provided for by the act of 1871 impossible; that the two-acts were inconsistent, and in consequence that the former act was repealed by the later.

<p>The granting of an order opening a judgment taken by default is in the discretion of the court below, and in the absence of evidence of an abuse of this discretion such order is not reviewable here.</p> <p>The fact that while the provision of the new Code (sec. 190), in reference to appeals to this court, expressly, excludes from review orders resting in discretion, made during the pendency of an action, no such exclusion is expressed as to such orders made after judgment, does not make the latter appealable. '</p> <p>The reason for not entertaining appeals from orders resting in discretion is not founded upon the express restrictions of the Code, but upon the character of the jurisdiction of this court, which is confined to the review of questions of law, except where otherwise expressly authorized.</p> <p>An appeal, however, from an order made after judgment, is expressly provided for by section 1337, which declares in substance that such appeals, bring up for review only questions not resting in discretion.</p> <p>As to whether such an order is a final one or affects a substantial right,, qwBre.</p>

(Reported below, 10 Hun, 9.) This action was brought to recover for moneys alleged to Rave been loaned by plaintiff to defendant. The facts appear sufficiently in the opinion. In construing the receipt given by defendant the extrinsic facts and circumstances to which it relates must be considered to arrive at the intention of the parties. (Black v. Col. Ins. Co., 42 N. Y., 393; Knapp v. Warren, 57 id., 668; Pitney v. G. F. Ins.

' 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, (Reported below, 10 Hun, 44.) This action was brought to recover damages for injuries alleged to have been sustained by plaintiff from the bite of a savage and ferocious dog owned and kept by defendant. The facts appear sufficiently in the opinion.

This was an action of ejectment. It is reported upon a former appeal in 64 N. Y., 180. The parties were adjoining owners;' the question was ■simply as to the boundary line between them.

(Reported below, 8 Hun, 222.) This action was brought to foreclose a mortgage. The complaint alleged in substance the execution of the mortgage by defendant Davies and wife as collateral security for the bond of Davies, the assignment of the bond and mortgage-to plaintiff, and that there had been a default, and that there-was a specified amount due and unpaid thereon.

(Reported below, 10 Hun, 140.) This action was brought by plaintiffs, as assignees in bankruptcy of Charles T. Yerkes, to recover a balance alleged to-be due from defendants to the bankrupt. The court found, in substance: That, on the 18th day of October, 1871, one Bouvier commenced an action against. Yerkes, and on that day an attachment was issued in said action, which was served on the defendants, who were then owing Yerkes the sum of $566.96.

(Reported below, 10 Hun, 277.), This action was brought by plaintiff as assignee in bankruptcy of James S. Aspinwall, under the provisions of the bankrupt act (U. S. R. S., §. 5128), to recover the value of property alleged to have been transferred by the bankrupt to defendants within four months of the filing of the petition in bankruptcy by way of fraudulent preference, in violation, of the provisions of the act.

The nature of the action and the facts are set forth sufficiently in the opinion. The bonds being negotiable securities the title thereto passed by delivery. (Dutch. Co. Mut. Ins. Co. v. Hachfield, 4 T. & C., 158.) Defendants were only bound to show that they were purchasers in good faith, even gross negligence would not have impaired their title. (Evertson v. Nat. Bk. of Newport, 66 N. Y., 14; Chapman v. Rose, 56 id., 187, 140; Seybel v. Nat. Cur.

(Reported below, 10 Hun, 77.) This was an action of partition, brought by plaintiff as heir-at-law of John Jennings, deceased, under the provisions of the statute (§ 2, chap. 238, Laws of 1853), authorizing any heir, claiming a devise to be void, to prosecute for partition.

(Reported below, 4 Hun, 545.) This action was brought to recover a balance alleged to be due and unpaid upon a contract made and entered into September 15, 1866, by and between the corporation of the city of New York, by the Croton Aqueduct Board and Robert Jardine, plaintiff’s assignor, for the paving of Eighth avenue, from Forty-second to Fifty-eighth streets.

(Reported below, upon a former appeal, 4 Hun, 565.) ' The referee found substantially the following facts : On or about the 27th day of April, 1873, the defendant requested the plaintiff to manufacture for him a set of circus tents of a specified kind and dimensions, which the plaintiff undertook to do in three weeks. In pursuance of said order the-plaintiff manufactured the tents, and had them completed about the twenty-first day of May.

The plaintiff herein, James P. Gould, Micale White, Calvin H. Bell and William Youmans, each filed notices of claim to the surplus, all the claims being founded upon judgments against the mortgagor. The judgments in favor of plaintiff, James P. Gould and Micale White, were prior in date to the others, and were held to be the prior liens, and entitled to the surplus. The judgment-rolls in the cases of the successful claimants were similar in form.

This action was. brought by plaintiff, a banking corporation organized under the national banking act, upon a promissory note made by defendant Clarence A. Blake, and indorsed by defendant Elizabeth M. Blake, who was the wife of the maker. The indorsement was in these words: “ I hereby charge my separate and personal estate for the payment of the within note. “E.-M. BLAKE.” Mrs. Blake alone defended.

This action was brought against defendant as assignee of Joseph Stockbridge and Henry F. Martin, composing the firm of Stockbridge & Martin, to determine the title to, and the interests of the parties in, certain property formerly assets of the firm. The court found substantially the following facts : On and prior to November 30, 1874, said- Stockbridge & Martin, as co-partners,, were owners of the property in question.

<p>The possessor of negotiable paper has no better or other title to the proceeds arising from the sale thereof than to the paper itself, and if he has no title to the latter he can be compelled to account to the true owner for the proceeds.</p> <p>It is immaterial whether the paper is the obligation of the party entitled thereto and of no validity in the hands of the wrong-doer, or the obligation of a third person.</p> <p>A maker of a note or acceptor of a bill negotiating the paper is not an assignor; and the fact that there are other parties contingently liable as sureties does not affect the character of the transaction.</p> <p>Plaintiff indorsed a promissory note for the accommodation of the makers for a special purpose; instead of being used for such purpose it was transferred by the makers to defendants in payment of an antecedent debt. Defendants transferred the same before maturity to a bona fide holder for value, who collected it of plaintiff. In an action to recover the amount paid, held, that defendants were liable; that having no title or right to the note the transfer by them was a conversion; and that it was immaterial that they acted in good faith and in ignorance of plaintiff’s rights.</p> <p>Also held, that the damages sustained by plaintiff was the amount he had been compelled to pay.</p> <p>It seems, that the plaintiff in such case has an election either to bring an action of trover for the conversion of the note, or for money had and received, to recover the money realized by defendant on sale thereof.</p> <p>Also held, that as defendants were not assignees of the makers within the meaning of section 399 of the Code, that plaintiff was a competent witness to prove transactions with one of the makers who was dead at the time of the trial.</p> <p>The makers of the note so indorsed executed to plaintiff a bond and mortgage securing this and other indorsements; they were adjudged bankrupts, and an assignee in bankruptcy appointed. Plaintiff entered into an agreement with the assignee by which it was agreed that plaintiff should take the mortgaged property and should take care of certain paper so indorsed, including the note in question, so that the general estate of the bankrupt should not be charge dtherewith, with the proviso, however, that nothing contained in the agreement should affect in any manner plaintiff’s right to defend against the note, or his remedies against any person in respect thereto. Held, that the agreement did not release, extinguish or affect the plaintiff’s right of action against defendants.</p>

The nature of the action and the facts are set forth sufficiently in opinion. The question as to the title of the notes at the commencement of this action was one of law. (Ætna Nat. Bk. v. Fourth Nat. Bk., 46 N. Y., 82.) The amount of the notes was not cash as between plaintiff and the insurance department. ( Tuckerman v. Brown, 33 N. Y., 297, 304.) The notes having been duly indorsed were negotiable commercial paper, the title to which passed by delivery.

(Beported below, 12 Hun, 161.) This action was upon a bond. The court found that plaintiff was entitled to recover the penalty of the bond with interest from December 24, 1854, as damages for the nonperformance of the covenant, amounting to $1,216-43. Plaintiff remitted the surplus over the sum claimed in the complaint, to wit, $1,000, and judgment was entered for that amount, with costs.

(^Reported below, 8 Hun, 550.) Tills was an action to recover damages for the alleged conversion of three promissory notes. The complaint alleged and plaintiff’s evidence tended to show that defendant in October, 1872, by means of certain false and fraudulent representations induced plaintiff to execute arid deliver to defendant three promissory notes of $500 each, payable to defendant or bearer two, three and four years from date respectively.

<p>A policy of fire insurance provided that the insurer should not be liable for loss occasioned by the use of kerosene oil as a light in any barn or outbuilding. In an action upon the policy, held, that the condition was not simply a provision against the habitual use of the oil, but that its use upon a single occasion, if it caused a loss, i. e., if loss would not have resulted if other oil had been used, forfeited the policy.</p> <p>Also, held, that the condition contemplated and provided against the danger resulting from the upsetting or breaking, by some intervening accident, of a lamp filled with the oil named, as well as to a direct and immediate effect therefrom, such as an explosion.</p> <p>To render the direction of a verdict subject to the opinion of the court at General Term proper, all the facts necessary to enable the court to render a final judgment must be conceded or established beyond controversy. Matson v. F. B. Ins. Co. (9 Hun, 415), reversed.</p>

Appeal on the part of defendant Lathrop from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 10 Hun, 66.) This action was brought to foreclose four mortgages of $3,060 each, made by the defendant Fickett to one Herbert, and assigned first to Beckwith and then to the plaintiff.

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 on a verdict. This was an action of ejectment to recover possession of certain premises upon which was a church edifice, parsonage and school-house, in the town of Eden, Erie county.

(Reported below, 10 J. & S., 353.) , This action was brought against plaintiff, as president of the New York Transfer Company, a company engaged as a common-carrier in the business of transferring baggage in the city of New York, to recover the value of a trunk and its contents, alleged to have been lost while in its hands. The answer alleged that the trunk was received by the company under a special contract, which, among other things, limited defendant’s liability to $100.

The nature of the action and the facts appear sufficiently in the opinion. It was error to receive in evidence the declaration of defendant, made three or four days before his letter was written, for the purpose of proving his intent. (Thompson v. Ketchum, 8 J. R, 189; Wolf v. Myers, 3 Sand., 7; Sinclair v. Jackson, 8 Cow., 543; Ellmaker v. Franklin F. Ins. Co., 5 Barr [Pa.], 183; Greenl. on Ev., § 277; 1. Bouv. L. Dic., 97; 2 C. & H. Notes to Phil.

This action was brought to foreclose a mortgage which, with the bond accompanying the same, was executed by defendants Hoyt and McKinney, on the 1st day of March, 1873. The bond was conditioned for the payment of the sum of $25,880 — one-half April 1, 1877, and the balance April 1, 1879, with interest payable annually, on the first day of April hi each year.

This action was brought to recover damages for injuries alleged to have been sustained by plaintiff from the bite of a vicious dog kept by defendant. Plaintiff's evidence tended to show that plaintiff when passing defendant’s store, in the city of New York, offered the dog, which was lying in front of the store unfastened, a piece of candy when the dog sprang at her and bit her.

• Appeal from judgment of the General Term of the Supreme Court in the third judicial department in favor of plaintiff, entered upon an order denying a motion for a new trial, and directing judgment on a verdict. (Eeported below, 8 Hun, 296.) This action was brought to recover damages for the alleged non-performance of a contract, entered into by defendant as a common-carrier.

(Reported below, 11 Hun, 351.) This action was brought to compel the specific performance of a contract between plaintiff, as vendor, and defend-ant,' as vendee, for the sale of certain real estate. ' 1 The referee found substantially the following facts : The plaintiff made an agreement in writing with the defendant to sell and convey to the latter, who agreed to purchase two lots of land in the city of Brooklyn; plaintiff tendered a deed of conveyance for the same in…

<p>Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of New York,' affirming a judgment in favor of plaintiff, entered upon an order dismissing plaintiff’s complaint on trial.</p> <p>This action was brought to recover damages for the loss of a horse and cart belonging to plaintiff", alleged to have been caused by defendant’s negligence.</p> <p>The facts appear sufficiently in the opinion.</p> <p>Defendant was liable for negligence in failing to keep the dock in repair. (Clark v. Un. Ferry Co., 35 N. Y., 485; Wyckoff v. Queen’s Co. Ferry Co., 52 id., 34; Swords v. Edgar, 59 id., 28.) The question of negligence or of contributory negligence was one for the jury. (Totten v. Phipps, 52 N. Y., 354; Belton v. Baxter, 58 id., 411; Spooner v. Brooklyn City R. R. Co., 54 id., 230; Thurber v. H. and M. R. R. Co., 60 id., 326; Haycroft v. L. I. and M. S. R. R. Co., Ct. Apps., Jan. 15, 1870; Unger v. Forty-second street R. R. Co., 51 N. Y., 497; Hackford v. N. Y. C. and H. R. R. Co., 53 id., 654.) Only where it clearly appears from all the circumstances, or by uncontrovertcd evidence that the injured party has contributed to the injury, can a nonsuit be ordered. (Massoth v. Prest, etc., D. and H. Canal Co., Ct. Apps., Apl. 14, 1876; 3 Mass., 136; 58 N. Y., 451; 47 id., 400; 5 id., 654; 45 id., 660; Geraty v. P. M. and B.R. R. Co., 1L. & Eq. Rep., 607.)</p> <p>Defendant would not be liable unless it appeared that the accident would have happened if plaintiff’s horse had not been so uncontrollable. (Titus v. Inhabs. of Northbridge, 97 Mass., 258, 265, 266 ; Horton v. City of Taunton, id., 266,267; Fogg v. Inhabs. of Nahant, 98 id., 578-581.)</p>

This was an action for a limited divorce under the statute, on the ground of cruel and inhuman treatment.

(Reported, below, 11 J. &. S., 455.) This action was brought to determine the title of the parties to a wall, between adjoining buildings, which plaintiff claimed to be a party wall, and to restrain defendant from tearing down the same. » The complaint alleged, in substance, that the parties were owners of adjoining premises; that the wall in question was a party wall, standing one-half on each of the adjoining premises ; that defendants had commenced to tear down the…

<p>Upon appeal to this court from an order granting a new trial, the appellant takes the risk, not only of the questions considered by the court below, but of every other exception appearing on the record; the respondentmay sustain the order upon showing any legal error, whether noticed by the court below or not.</p> <p>If such an appeal is considered here upon the merits, and the court determine that there was error upon the trial requiring an affirmance of the order, judgment absolute must be given against the appellant.</p> <p>"Where, however, a party has appealed under a mistake, and before a decision of the appeal asks permission to withdraw it, the court upon being satisfied that the proceeding was in good faith, will ordinarily give leave to dismiss the appeal on payment of costs.</p>

(Reported below, 11 Hun, 136.) The nature of the action and the facts are set forth sufficiently in the opinion. The expiration of the charter did not prevent defendants from continuing to defend the pending suit of Russell Sturgis in the name of the corporation. (Merrick v. Van Santvoord, 34 N. Y., 208; Laws of New Jersey, 1846, § 29; 1 N. Y. R. S., 600, § 9; Pomeroy’s Lessees v. State Bk., 1 Wal., 23.) The corporation remained in esse until formally adjudged dissolved.

. The further facts appear sufficiently in the opinion. The wreck was within the jurisdiction of the county of Richmond, and the expense of the removal was properly chargeable on that county. (1 R S. [6th ed.], 124 [m. p.], 65; People v. Cent. R. R. Co. of N. J., 42 N. Y., 283, 292, 312, 313.) The wreck was not within the limits of Richmond county but within the territorial limits of New Jersey. (1 R. S., part 1, chap. 11, § 2, subd. 4; Laws 1834, p. 9.)

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of defendant, entered upon an, order setting aside a verdict in favor of plaintiff, and dismissing the complaint. (Reported below, 10 Hun, 59.)</p> <p>This action was brought to recover the amount of a loss paid by plaintiff, under a policy of insurance issued by it,, which loss it alleged was occasioned by defendants negligence.</p> <p>On payment of the policy plaintiff was equitably subrogated to a right of action against the defendant, arising out of the latter’s liability to compensate the owner for the destruction of his property by its negligence. (Randal v. Cockran, 1 Ves. Sen., 98; Blauwpot v. Da Costa, 1 Eden, 130; Mason v. Sainsbury, 3 Douglas, 61; London Ass. Co. v. Sainsbury, 3 id., 245; Clark v. Inhabitants of Blything, 3 Dow. & Ry., 489; Mellon v. Bucks, 17 Martin [La.], 371; Comegys v.Vasse, 1 Pet., 193; Yates v. White, 4 Bing. [N. C.], 272; Hooper v. Whitney, 19 La., 267; White v. Dobinson, 14 Sim., 273; Hart v. Western R. R. Co., 13 Metc., 99; Gales v. Hailman, 11 Penn. S. R.R. 515; Quebec Fire Ins. Co. v. St. Louis, 1 Low. Can., 222; S. C., 7 Moore P. C., 386; Mercantile Marine Ins. Co. v. Corcoran, 1 Gray, 75; Propeller Monticello v. Mollison, 17 How. [U. S.], 152; Rockingham Mut. Fire Ins. Co. v. Bosher, 39 Me., 253; Garrison v. Memphis Ins. Co., 19 How. [U. S.], 312; Perrot v. Shearer, 17 Mich., 48; Dickenson v. Jardine, 3 L. R. C. P., 639; Clark v. Wilson, 103 Mass., 219; North of Eng. Ins. Co. v. Armstrong, 5 L. R„ [Q. B.], 244; Monmouth Co. Mut. Fire lns. Co. v. Hutchinson,. 6 C. E. Green, or 21 N. J. Ch., 107; Hayward v. Cain, 105 Mass., 213; Harding v. Town of Townshend, 43 Vt., 536, and 5 Am. Rep., 304; Home Ins. Co. v. North-west. Packet Co., 32 la., 223, and 7 Am. Rep., 183; Hall & Long v. The Railroad Co.’s, 13 Wall. [U. S.], 367; Weber v. Morris and Essex R. R. Co., 35 N. J., 409, and 10 Am.. Rep., 253; Newcomb v. The Cincinnati Ins. Co., 22 Ohio St., 382, and. 10 Am. Rep., 746; Commercial Union Ins. Co. v. Lister, 9 Eng. Rep., 572; Grade v. N. Y. Ins. Co., 8 J. R., 237; Atlantic Ins. Co. v. Btorrow, 1 Edw. Ch., 621; S. C. on appeal, 5 Paige, 285; Etna Fire Ins. Co. v. Tyler, 16' Wend., 397; Hosack v. Rogers, 6 Paige, 415; Rogers v. Hosack’s Exrs., 18 Wend., 319; Rentz v. Receiver of Ætna Fire Ins. Co., 9 Paige, 569; Collins v. N. Y. C. and H. R. R. R. Co., 5 Hun, 503; Merrick v. Brainerd, 38 Barb., 574; Home Ins. Co. v. Western Trans. Co., 33 How., 102; Home Ins. Co. v. Penn. R. R. Co., 11 Hun, 182; 2 Phillips on Insurance, §§ 1711, 1723, 1724; Dixon on Subrogation, chap, viii.) The action was properly brought in the name of the insurance company. (London Ass. Co., v. Sainsbury, 3 Douglas, 245; Garrison v. Memphis Ins. Co., 19 How. [U. S.], 317; Cummings v. Morris, 25 N. Y., 627; Code, §§ 144, 147, 148; Home Ins. Co. v, Penn. R. R. Co., 11 Hun, 184.) The plaintiff’s action was not barred by Martin’s release, and that release affords the defendant no defense. (1 Phillips on Ins., § 81; 2 id., § 2160; Timan v. Leland, 6 Hill, 237; Andrews v. Becker, 1 Johns. Cas., 411; Wheeler v.Wheeler, 9 Cow., 34; Phillips v. Claggett, 11 Mess. & Welsb., 84; Anderson v. Van Allen, 12 J. R, 343; Dawson v. Coles, 16 id., 51; Briggs v. Dorr, 19 id., 95; Jackson v. Blodget, 5 Cow., 202; Grosvenor v. Atlantic Fire Ins. Co., 17 N. Y., 391; Ennis v. Harmony Ins. Co., 3 Bosw., 516; Hart v. Western R. R. Corp., 13 Metc., 108; Clark v. Wilson, 103 Mass., 223; Monmouth Co. Mut. Fire Ins. Co. v. Hutchinson, 6 C. E. Green, or 21 N. J. Ch., 107; Home Ins. Co. v. Western Trans. Co., 33 How., 102; Atlantic Ins. Co. v. Storrow, 1 Edw. Ch., 621, 627; S. C. on appeal, 5 Paiges 285.)</p> <p>The settlement with and release of defendant extinguished the claim against it. (1 Greenleaf on Evi., 278; Creery v. Holly, 14 Wend., 26; Pohalski v. Mut. Life Ins. Co., 36 Sup. Ct. R., 234; Fast Hampton v. Kirk, 6 Hun, 257; Thomas v. Truscott, 53 Barb., 200; Taylor v. Baldwin, 10 id., 582; Jackson v. Andrews, 59 N. Y., 244, 247; Leavitt v. Palmer, 3 id., 19; Coon v. Knapp, 8 id., 402; Pierson v. Hooker, 3 J. R., 68; Commercial Ass. Co. v. Lister, 9 Eng. Rep. [Moak’s Notes], 572, 573, note; Hall v. Nash, and Chat. R. R. Co., 13 Wall., 367; 3 Amer. Rail. Rep., 409, 410; Merrick v. Brainard, 38 Barb., 574, 584, 590; Newell v. Norton, 3 Wall., 257; Collins v. N. Y. C. and H. R. R. R. Co., 5 Hun, 503 ; Hayward v. Cain, 105 Mass.. 213 ; Clark v. Wilson, 103 id., 219; Weber v. Morris and Essex R. R. Co., 35 N. Y., 409; 10 Amer. Rep., 253; Bradburn v. Gt. West. R. Co., 11 Eng. Rep. [Moak’s Notes], 330; Harding v. Town of Townsend, 5 Amer., 304; Penolo v. Shearer, 17 Mich., 48; Hart v. Western R. R. Co., 13 Metc., 99; Monmouth, etc. R. R. Co. v. Hutchinson, 21 N. J. Eq., 107.) The money Martin received from the railway company on the settlement he held as trustee for the plaintiff to the amount of its policy of insurance. (Newcomb v. Cincinnati Ins. Co., 22 Ohio, 382; 10 Amer. Rep., 742; North v. Armstrong, 5 Q. B., 244.) Whether the amount received by Martin from the railway company was less than the value of the buildings or not was immaterial for any purpose, except to establish a claim of a fraudulent and collusive settlement. (Bill v. Congdon, 2 N. Y., 352; Lafarge v. Herter, 11 Barb., 159; Boyd v. McDonough, 39 How., 389.)</p>

This action was brought to recover the value of certain buildings erected by plaintiff’s assignor upon premises leased by him of defendant’s grantor. The referee found substantially the following facts: In February, 1855, a lease of certain premises in Hew York city was executed by D. Lynch Lawrence as lessor, and H. H. Winans as lessee, for the term of twelve years from the first of May following, at the yearly rent of $400, payable quarterly.

Randall, an attorney, by a fine with, imprisonment until paid for an alleged contempt. The modification consisted in a reduction of the amount of the fine. The Special Term order imposed a fine of $7,187. The General Term reduced the amount to $3,076.50. The facts appear sufficiently in the opinion. The legal title to the fund was not in Hiler but in the trustee under the trust deed of December 7, 1872. (Dean v. Hyatt„ N. Y. Gen. Term Sup.

<p>■ Appeal from judgment of the General Term' of the Superior Court of the city of New York, affirming a judg-. ment in favor of plaintiff, entered upon a verdict. (Reportedhelow, 10 J. & S., 462.)</p> <p>This action was brought to recover a balance alleged to be-due plaintiff upon his deposit account with defendant.</p> <p>The facts appear sufficiently in the opinion.</p> <p>There was an account stated between the parties, and this precluded a recovery. (Bullock V. Boyd, 2 Edw. Ch., 292; Weiser v. Denison, 6 Seld., 75; Story’s Eq. Jur., 526; Hutchinson v. Market Bk., 48 Barb., 321; McDougal v. Cooper, 31 N. Y., 198; Lockwood v. Thorne, 1 Kern., 170; Avery v. Leach, 9 Hun, 106; 1 Greenl. Ev., §§ 212, 291, 292; Manhattan Co. v. Lydig, 4 J. R, 377.) The payment of the checks by defendant was the same as if they had been payable to a fictitious payee. (Coggill v. Am. Ex. Bk., 1 Coms., 113.) Plaintiff’s negligence in signing the checks and his long delay in questioning the transaction prevented a recovery. (Allen v. Coit, 6 Hill, 318; Aldarson v. Clay, 1 Stark., 403; 48 Barb., 322, 323; Johnson v. First Nat. Bk., 6 Hun, 124; Redlich v. Doll, 54 N. Y., 234, 239; Goucester Bk. v. Salem Bk., 17 Mass., 42.) Plaintiff’s acts amount to a ratification of the acts of his bookkeeper. (Story on Ag., §§ 234—260; Lawrence v. Taylor, 5 Hill, 114; Ward v. Evans, 2 Salk., 442; 2 Raym., 928; Williams v. Mitchell, 17 Mass., 98.) Defendant in paying the checks was guilty of no negligence. (Justh v. Nat. Bk. of Comm., 56 N. Y., 480, 485; Cont’l Nat. Bk. v. Nat. Bk. of Comm., 50 id., 575, 576.), Witness was bound to know what appeared on his books. (Allen v. Coit, 6 Hill, 318; Aldarson v. Clay, 1 Starkey, 403.) Defendant was legally concluded only as to the signature of plaintiff. (Coggill v. Am. Ex. Bk., 1 Corns., 113; Nat. Bk. of Comrce. v. Nat. Mech. Bkg. Assr., 55 N. Y., 211.)</p> <p>Defendant was bound to ascertain the genuineness of the payee’s indorsements before paying the checks. (Morgan v. Bk. of State of N. Y., 11 N. Y., 404; Graves v. Am. Ex. Bk., 17 id., 205; Johnson v. Bk. of Hoboken, 6 Hun, 124; affirmed by Ct. of Apps.) There was no negligence of plaintiff to excuse defendant in paying the checks upon the forged indorsements. (Palm v. Watt, 7 Hun, 357; Leavitt v. Stanton, H. & D. Supp., 413; White v. Bank, 64 N. Y., 316, 322.) In making an unauthorized disposition of the checks, the book-keeper was a wrong-doer and did not represent the plaintiff. ( Weisser v. Dennison, 10 N. Y., 18; Palm v. Watt, 7 Hun, 357.) This was not a case of a fictitious payee. (Am. Ex. Bk. v. City Bk., 5 N. Y. L. Obs., 18.)</p>

<p>An unrecorded deed has a preference under the recording act over a subsequent judgment against the grantor, although he remains in possession.</p> <p>The rule that resort may be had to a court of equity to set aside as a cloud on title an apparent lien or incumbrance, when its invalidity can only be ■established by extrinsic evidence which will not necessarily appear in .any proceeding by a claimant to enforce the lien, is more particularly .applicable where the extrinsic evidence is parol; it does not apply when the evidence is a deed, on record in the same county clerk’s office where a judgment is docketed under which a claim is made hostile to plaintiffs .title.</p> <p>.Accordingly, held, where plaintiff claimed.title under a deed which was unrecorded at the time of entry of judgment against the grantor, and of a sale thereunder, but which was subsequently recorded, that an action could not be maintained-by. him to. set aside the. sheriff’s certificate of sale as a cloud upon his title.</p>

These were appeals from judgments of the General Term of the Supreme Court, in the first judicial department .reversing and setting aside the proceedings of defendants, whereby the relators were “ dismissed from the service of this department,” and restoring them to their positions; which proceedings were brought up for review by writ of certiorari.

(Reported below, 13 Hun, 64.) It appeared by the moving papers that the relator filed two claims with defendants for certain canal damages. The O -claims were heard and an award made. The relator appealed in due time. The canal appraisers refused to make a return, .and opposed the granting of the writs upon the ground, principally, that the relator accepted and received the amount .awarded in full satisfaction of his claim.

(Reported below, 10 Hun, 593.) This action was brought by plaintiff as special administrator or collector of the estate of C. Liston Brown, deceased, upon two policies of insurance issued by defendant to said Brown in his lifetime upon his dwelling-house and household furniture.

(Reported below, 10 Hun, 423.) This action was upon a policy of fire insurance. The policy was issued in April, 1873.

This action was brought to recover damages for injuries alleged to have been sustained by plaintiff, caused by defendant’s negligence. On the 3d August, 1871, plaintiff was a passenger in one of defendant’s cars. He was seated near an open window, with his elbow on the window-sill. While passing over a bridge his elbow was struck by some substance and his arm was broken. The further material facts appear in the opinion.

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment in favor of plaintiff, entered upon the report of a referee.</p> <p>The nature of the action and the facts are set forth sufficiently in the opinion.</p> <p>Plaintiff was bound to produce on the trial the tickets purchased by him. ( Wylde v. No. R. R. Co. of N. J, 53 N. Y., 156; Blade v. Noland,12 Wend., 173.) The statute giving the action created a penalty, and as it was not brought within one year of the commission of the alleged offense, it was barred. (Code, § 96; Meech v. Stoner, 19 N. Y., 26; Fisher v. N. Y. C., etc., R. R. Co., 46 id., 645; Corning v.McCullough, 1 id., 47, 58; Wiles v. Suydam, 64id., 173, 176, 177; Mer. Bk. v. Bliss, 35 id., 412; Hintermister v. First Nat. Bk., 64 id., 212.) If plaintiff could recover at all, it would be only for a single penalty. (Sturgis v. Spofford, 45 N. Y., 446; Fisher v. N. Y. C., etc., R. R. Co., 46 id., 644; Suydam v. Smith, 52 id., 383; Stewart v. Met. Bd. of Health, 33 How. Pr., 4; Mack v. McCulloch, 2 id., 1127; King v. Havens, 25 Wend., 420; 4 id., 216; Browns. Bristol, 1 Cow., 176; Livingston v. Plainer, id., 175; Newcomb v. Butterfield, 8 J. R., 342.) Plaintiff, to recover, was bound to show that his identical money had been paid over to defendants. (Rolfe v. Delmar, 7 Robt., 80; Negley v. Devlin, 12 Abb. Pr. [N S.], 210.) Plaintiff could not recover double costs. (Seymour v. Billings, 12 Wend., 285; Porter v. Willet, 14 Abb. Pr., 319; Stoddard v. Clark, 9 Abb. Pr. [N. S.], 310; Bartle v. Gilman, 18 N. Y., 260.)</p> <p>Plaintiff was not limited to one year within which to bring his action. (1 R. S., 619, § 32; Code, § 96.) Plaintiff was entitled to recover double the sum paid for each ticket. (1 R. S., 619, § 32; Fisher v. N. Y. C., etc., 46 N. Y., 644, 655; Suydam v. Smith, 52 id., 388'; Hinterminster v. First Nat. Bk., 64 id., 212.</p>

This was an action upon a policy of life insurance for $5,000, issued by defendant, a Massachusetts corporation, upon the life of William W. Selye, made payable to plaintiff. Plaintiff was a sister of the insured ; he was also her debtor at the time of the issuing of the policy to the amount of $1,200. The referee gave judgment for the amount of the policy, with interest from ninety days after receipt of proof of loss by defendant.

This action was brought to set aside a transfer of what is known as “ a sailors’ snug harbor lease,” made by Caroline C. De La Montagnie, plaintiff’s testatrix, to a third person, and by him to her husband the defendant. The facts appear sufficiently in the opinion. Plaintiff’s intestate having transferred the property in suit under an entire misapprehension, and on the faith of false statements made to her by her husband he could not keep it.

This action was brought to recover a balance of charges alleged to be due plaintiff upon á quantity of malt delivered to defendants upon the faith of their promise to pay such balance. The facts appear sufficiently in the opinion. Plaintiff had no lien on the malt derived from the barley mentioned in the two receipts, except for his charges for malting those two specific lots. (Lenckhardt v. Cooper, 2 Hodg., 160; 3 Bing.

This was an action in equity to have a policy of insurance issued by defendant to plaintiff upon the life of her husband, which the defendant claimed to be forfeited and canceled, -declared to be existing and in full force. The policy was issued March 20, 1867, through defendant’s local agent at Buffalo.

. Appeal from judgment of the General Term of the. Súfreme Court, in the third judicial department, affirming . a judgment in favor of plaintiff and affirming an order denying a motion for a new trial. This was an action for assault and-battery. The facts appear sufficiently in the opinion. The court erred in limiting defendants’ cross-examination to the question of actual physical occupation of the locus in quo, and to a time subsequent to the date of plaintiff’s deed.

This action was in the nature of a quo wai'ranto, brought to oust the defendant from the office of assistant clerk of the District Court for the second judicial district in the city of Hew York, and to establish the right of the relator thereto. The facts appear sufficiently in the opinion. The judgment record in the suit by the relator against Mangin was properly excluded. (Goddard v. Benson, 15 Abb.

This action was brought to recover damages for injuries-alleged to have been sustained by reason of the driver of one1 of defendant’s ice carts, while engaged in his duties, carelessly driving his cart against plaintiff’s carriage, upsetting; it, and doing the injuries complained of.

This action was for contribution, the complaint alleging that the parties signed a promissory note as sureties for another, which note plaintiff had paid. It appeared that a joint and several promissory note was signed by one Brown Sayles and by plaintiff, the latter in fact signed as surety for the former ; there was nothing upon the note however to indicate this.

<p>Where an interpretation has been given to a statute by this court, in aid of which certain facts, admitted orproved in the action, were considered, it is not necessary for a party in another action, relying upon the interpretation so given, to prove the same facts; but it is incumbent upon the opposite party to show that those facts did not exist, assuming that, they were decisive in the determination, before he can call upon the court to reverse its decision.</p> <p>In an action against a municipal corporation to recover the salary of a-municipal officer, brought by an assignee, a claim against the officer for moneys of the corporation unlawfully paid to and received by him is a. proper set-off.</p> <p>The act of 1875 (chap. 49, Laws of 1875) authorizing actions to be brought by and in the name of the people of the State to recover back moneys, unlawfully obtained, belonging to a municipal corporation, does not. deprive a municipality of the right to set-off in an action against it a.</p> <p>; claim against the plaintiff, although it may arise out of a transaction which might under said act be the subject of a suit in behalf of the : people.</p>

Appeals by George B. Grinnell and John Dailey, claimants, from an order of the General Term of the Supreme Court in the first judicial department, reversing an order of Special Term as to the disposition of an award to “ unknown owners ” made herein. The nature of the proceedings and the facts appear sufficiently in the opinion. The city was not entitled to the award on the assumption that the land for which it was made had been dedicated to public use.

(Reported below, 10 J. & S., 256.) This action was brought to recover a balance alleged to be due under a building contract.

<p>An action to set aside and vacate a judgment against a corporation, on the ground that it was obtained without consideration, by collusion with the officers of the corporation, and in fraud of creditors, may properly be-brought in the name of and by a receiver of the corporation.</p> <p>In a complaint in such an action it was not expressly averred that the judgment was fraudulent in fact, or that the officers of the corporation colluded with the plaintiff therein; but facts were averred, which if proved authorized the inference that the judgment was without consideration, and fraudulently and collusively obtained. Held, sufficient after judgment ; that if the complaint was technically defective the objection should have been taken by demurrer or otherwise before issue on the facts; also, that it was not necessary to employ the word “fraud” or “fraudulent”' to characterize the transaction.</p> <p>Defendant sold to the E. H. C. Co., a patent right for the sum of $25,000; $10,800 was paid down, and 500 shares of the stock of the 'corporation transferred. The corporation gave back a power of attorney authorizing defendant to sell rights and machinery, and it was agreed that it should receive all the net proceeds of sales made by defendant until it was reimbursed, from such sales and the sales of the stock, the money paid down, and that thereafter defendant should be entitled to one-half the proceeds of sales coming to his hands, until the residue of the $25,00(1-was paid, and all the balance should be paid to the corporation. Heldt that while the contract was in form a sale for $25,000, the payment of all save the smn paid down was dependent upon its being realized from sales in the manner specified; that no absolute obligation on the part of the corporation to pay the balance was intended or incurred; and. that no promise to pay the balance upon request could be implied.</p> <p>In an action brought by a receiver of the corporation to set aside a judgment obtained by defendant for the balance of the purchase-price, it. appeared that the summons and complaint in defendant’s action were-served upon an officer of the company, who brought it to the notice off the board of trustees, and with the assent of the board they were delivered to the attorney, who brought the action, to protect the interests off the coloration, no answer was interposed and the judgment was by default. Held, that the evidence justified a finding that the judgment was without consideration, and was suffered to be entered by fraud and collusion between defendant and the officers and trustees of the-corporation.</p> <p>Also, held, that the court having jurisdiction of the cause of action and the parties, had authority not only to vacate the judgment, but also to pasa upon the mente and to definitely dispose of defendant’s claim.</p> <p>Also, Tield, that the action was properly tried without a jury, but if a trial by jury was the right of either party it was waived by not being .demanded in proper time.</p>

(Reported below, 10 Hun, 598.) This action was brought to restrain defendant from operating its road over and across lands of plaintiff in the county of Kings, included in Gravesend avenue. The facts appear sufficiently in the opinion. Plaintiff’s permission to defendant to enter upon his land would be consistent with the reservation of a claim for compensation. (Eggleston v. Harlem R. R. Co., 35 Barb., 172.) If plaintiff had given a license it was revocable at his pleasure.

These were actions to vacate assessments upon, and sales of lands of plaintiffs in the city of Brooklyn, and to restrain conveyances by the city. Defendants demurred to the complaints, the demurrers were sustained and judgments perfected in favor of defendants. The cases involved the same statutes and assessment proceedings as those in question in the case of Quest v. Oity of Brooklyn (69 N. Y., 506).

This action was brought to recover for the alleged conversion of a piano, which plaintiff claimed to have been given to her by defendant. Held: no error ; that, while the question was a border one, yet that the evidence may have related to the same conversation about which Andrew had testified, and certainly it bore upon the subject-matter of his testimony, and tended to contradict his evidence, and so was competent.

This was an appeal from an order of General Term granting a peremptory mandamus requiring defendant to re-convene and audit and allow plaintiff^ account. Held: as above stated.

<p>Ghiest v. City of Brooklyn (9 Hun, 198), reversed.</p>