Volume 74 — New York Reports

(Mem. of decision below, 11 Hun, 495.) The action was brought to recover damages for tearing down and removing part of a dam erected by the plaintiff and for an injunction. The plaintiff owns a village lot on the east side, of Furnace street, in Wolcott, nearly opposite a spring of water on premises situated on the west side of the street, belonging to the wife of defendant Calkins.

(Reported below, 10 Hun, 459.) This action was upon a policy of life insurance issued by defendant upon the life of Romeyn O. Higgins. The policy contained a provision, that “if any of the declarations or statements made in the application for this policy * * * shall be found in any respect untrue * * * this policy shall be null- and void.” The further facts appear sufficiently in the opinion. The statements in the application being made a part of the policy were warranties.

This action was brought to recover possession of a quantity of stone. Plaintiff claimed immediate delivery, and issued a requisition to the sheriff, who took possession of the property. Defendants gave the undertaking required by the Code, and the property was returned to them. Further facts appear in the opinion. The complaint should have been dismissed, because there was no evidence that defendants ever became possessed of or detained the stone. (Hoffm. Prov.

(Mem. of decision below, 11 Hun, 279.) This action was brought to recover damages for an alleged breach of covenants in a contract between… Held: or which may hereafter be obtained, on any machinery for the manufacture of said rail, such license to be exclusive in said States, except as hereinafter stated, so long as the said company shall supply the demand for the rail in said States; all rails to be made of good material, and in a workmanlike manner, and according to the…

(Reported below, 9 Hun, 171.) This action was brought to vacate and set aside an assessment of $435.94 upon certain lands of plaintiff for a highway improvement as a cloud on title, and to restrain the ' enforcement thereof. Defendants separately demurred to the complaint.

<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 the report of a referee.</p> <p>The nature of the action and the facts are set forth sufficiently in the opinion.</p> <p>Excluding from consideration the stipulation between the parties, they had no right to proceed to an accounting. (Pattison v. Blanchard, 5 N. Y., 186; Crater v. Bininger, 45 id., 548; Rainsford v. Rainsford, 57 Barb., 58; Worrall v. Grayson, 1 M. & W., 166; Short v. Barry, 3 Lans., 143; Cummings v. Morris, 25 N. Y., 629; Arnold v. Angell, 62 id., 508; Brown v. Leigh, 49 id., 78, 82; Bigelow v. Dunn, 53 Barb., 570; Diamond v. Winsburgh Ins. Co., 4 Daly, 494.) If the referee had a right to proceed to an accounting he had no right to allow an item not included in the complaint or recoverable in the same action. (Brown v. Leigh, 49 N. Y., 82; Larned V. Hudson, 57 id., 151.) The defendant John Bodine was a partner in the firm in 1867. (Sage v. Sherman, 2 N. Y., 418; Holmes v. United Ins. Co,, 2 J. Cas., 329; Post v. Kimberly, 9 J. R., 470.) The fact that the accounts of 1867 were received in evidence without objection made the transr actions of that year part of the issue. (McKecknie v. Ward, 58 N. Y., 541, 542; McKnight v. Devlin, 52 id., 399; Jackson v. Van Slyke, id., 645.)</p> <p>The referee was correct in holding that the check of John Bodine for $1,397.63 was not received by plaintiff as a payment on account of the indebtedness to him of the former firm. (Coles v. Sackett, 1 Hill, 516; Noll v. Murray, 13 N. Y., 168; Bates v. Rosekrans, 37 id., 415; Bradford v. Fox, 38 id., 289; Syr. R. R. v. Collins, 57 id., 641.)</p>

This action was brought upon a guaranty under seal of the payment upon the part of the executors of Cornelius T. E. Van Horne, deceased, of any award made against them upon a submission to arbitrators, executed by said executors and the plaintiff, defendants covenanting that, in case an award was made against the executors, and they should not pay the same, that defendants would pay or cause to be paid the amount thereof.

trial. This action was brought to recover damages for an alleged breach of a contract for the purchase and sale of a quantity of oil. The facts appear sufficiently in the opinion. Defendant was not substituted in the place of J. L. Pierce & Co. as purchaser under the contracts in suit.

(Reported below, 9 Hun, 397.) The facts appear sufficiently in the opinion. The jurisdiction of the State court was taken away by the proceedings taken by defendant to remove the cause into the United States court, and its proceedings thereafter were coram non judice. (14 Stat. at Large, 558; Cooke v. State Nat. Bk. of Boston, 52 N. Y., 96; Shaft v. Phoenix Mut. L. Ins. Co., 67 id., 544; People v. Utica Ins. Co., 15 J. R., 358, 382; .Ins.

Appeals from orders of the General Term of the Supreme Court in the first judicial department, affirming orders fixing the compensation of the sheriff for executing an attachment in each of the causes above entitled. (Reported below, 9 Hun, 205.) The Morris Run Coal Company, defendant in both of said actions, made an assignment to one Lynch for the benefit of creditors.

The form of plaintiff’s denial in his reply did not render the pleading frivolous. (Chapman v. Chapman, 34 How., 241; Moak’s V. S. Pldgs. [3d ed.], 526; Espinosa v. Gregory, 40 Cal., 61-62. The order appealed from was not appealable. (Armstrong v. Weed, 62 N. Y., 250; Wilkin v. Raplee, 52 id., 248; Coil v. Stewart, 50 id., 18; Baker v. Cocks, id., 689; People v. Benedict, 47 id., 667; Adams v. Fox, 27 id., 640; Paddock v. Springfield F. and M. Ins.

<p>Any game or device of chance in the nature of a lottery is within the prohibition of the statute against lotteries.</p> <p>The payment of money in what is known as “playing policy” i. e., upon the selection of certain numbers, which, if drawn in a lottery, entitle the person paying to a much larger sum, is the purchase of an interest or share in a lottery within the meaning of the provision of said statute (1 R. S., 667, § 32), which authorizes the purchaser to sue for and recover double the sum so paid.</p>

(Reported below, 12 Hun, 657.) The motion was made, among other papers, upon the judgment roll in the action. This contained an affidavit for an attachment; to the affidavit, upon which the order for publication was granted, was annexed a certificate of the sheriff, which was referred to in the affidavit. The material allegations in the affidavit, and the suostance of the certificate, are set forth in the opinion.

(Mem. of decision below, 8 Hun, 644.) This action was brought to enforce a subscription.

(Reported below, 3 Hun, 558.) The material portions of the orders are set forth in the opinion. The objection that the court has no jurisdiction because it was sought to invalidate a judgment of the Probate Court of Michigan was frivolous. (Warner v. Blakeman, 4 Keyes, 487.) The interest of the plaintiffs being common their number was immaterial there being more-than one.

Brown, entered upon a verdict. (Reported below, 11 Hun, 52.) This action was brought upon an undertaking given upon appeal. The material portion of the undertaking and the facts are set forth sufficiently in the opinion. A married woman can only bind herself or her estate by an undertaking in an action where she necessarily executes it in the prosecution or defense of an action brought by or against her.

(Reported below, 11 Hun, 139.) This action was brought against defendant, as indorser of a promissory note made by “ The New York and Silver Peak Mining Company,” a corporation organized under the general manufacturing law of this State, payable to the order of-defendant, and indorsed by him for its accommodation. The defense was usury.

Sherman as frivolous. This was an action for the foreclosure of a mortgage executed by defendants Jacobson and wife to plaintiff. The complaint alleged a conveyance of the mortgaged premises by the mortgagors to defendant Sherman, subject to the mortgage, and that in and by the deed to her she, as part of the consideration, assumed and agreed to pay the mortgage, and judgment was asked against her for any deficiency.

The tacts appear sufficiently in the opinion. The acts relating to the improvement in question are local acts. (People v. Hills, 35 N. Y., 449; People v. O’Brien, 38 id.. 193; People v. Supervisors, etc., 43 id., 10; Adsit v. Allen, 42 id., 378; In re Extension Prospect Park, 60 id., 398.) All the provisions of the act of 1868 (chap. 631), except such as relate to the alteration of the commissioners’ map, are void, because not expressed in or indicated by the title.

This action was brought upon an award of arbitrators. The facts appear sufficiently in the opinion. The award was within the submission, and valid on the face of the papers; there was no uncertainty as to that part characterized as the money part. (Nichols v. S. C. M. Ins.

This action was brought to recover for the loss of a trunk and its contents.

(Reported below, 11 Hun, 496.) This action was brought to recover back a sum of money-alleged to have been paid under duress of goods.

<p>Defendant S. conveyed certain premises subject to a mortgage executed by her. In an action to foreclose the mortgage S. did not appear. The decree directed judgment against her for any deficiency. The premises on sale under the decree were bid off by H. for a sum sufficient to pay the mortgage. By the terms of sale five per cent of the purchase-money was required to be paid down; this provision was waived, and the time for completing the sale was postponed from time to time, an order was subsequently granted requiring H. to complete his purchase; he having failed so to do, an order was granted directing a re-sale, which was had, and the premises were sold for $2,000 less than the bid of H.,' leaving a deficiency for which judgment was entered up against S. On appeal from order denying motion to set aside this judgment, held, that conceding the liability of S. to be only that of surety, he was not discharged, as it did not appear that payment could have been enforced against II., that S. requested plaintiff to enforce it, or that there was any fraud on the part of plaintiff; that, in order to discharge a surety in such case, it should be made to appear that some injury was done him by the acts complained of; also that plaintiff had the election either to proceed against the purchaser for contempt, or to apply for a re-sale, and having chosen, and the court having granted the latter remedy, the order, was conclusive, and released plaintiff from any obligation to institute proceedings to recover the deficiency of H.</p>

<p>In cases where many persons have claims and are prosecuting, or are about to prosecute them at law, against one defendant or class of defendants, or a fund liable in equal degree to all those persons and to others, a court of equity, to forestall a multiplicity of actions has jurisdiction of an action foi* a general accounting and adjustment of all the rights, and to restrain separate and individual actions at law in the same or other courts, thus bringing all the litigation into one suit.</p> <p>It is immaterial whether the rights of action arise from general principles of law or from particular provisions of constitution or statute.</p> <p>The bringing into one such action, however, of all parties similarly situated, will not give a right or impose a liability which did not exist otherwise.</p> <p>Accordingly, held, that an action was maintainable brought by a creditor of “The People’s Safe Deposit and Savings Institution,” organized under ■ the act, chapter 816, Laws of 1868, in his own behalf and that of other creditors, against the stockholders of said company, the assignee in bankruptcy and such creditors as had brought suits at law, to collect of said stockholders the sums for which they were liable under the provisions of said act (§§ 13,14), to distribute the same among the creditors, and to restrain the prosecution of said actions at law.</p> <p>Also, held, that the fact that by said provisions the stockholders were made “severally” liable did not preclude the attaching and exercise of this equitable jurisdiction.</p> <p>But held, that the court' in such action could only divide among all the creditors, having legal claims against one or more of the stockholders, the avails of the liabilities of those stockholders; it could not take from one creditor his right against a certain stockholder and give it in whole or in part to a creditor having no legal right against that stockholder.</p>

Appeal by James Jackson, appointed receiver of the property of the defendant in this action, from an order of the General Term of the Supreme Court, in the first judicial department, affirming an order of Special Term, denying a motion by said receiver to set aside levies made under two attachments against said defendant, or to allow the receiver to come in in, the actions in which the attachments were issued, for the purpose of moving to vacate the attachments, or the…

' Appeal from judgment of the General Term of the Supreme Court of the city of New York, affirming a judgment in favor of plaintiff, entered upon a verdict. This action was brought for the alleged conversion of certain goods. The defense was that the goods were taken by defendant, a United States marshal, under a provisional warrant issued in bankruptcy proceedings against Lagrave & Otis, who originally were the owners of the goods.

The nature of the action and the facts are set forth sufficiently in the opinion. The establishment by the act of 1873 (chap. 335, § 4) of the minority system of representation and inode of electing the board of aldermen was in direct conflict with article two, section one of the State Constitution.

This action was brought for an accounting and payment by defendant to plaintiffs of their proportionate share of the proceeds of the sale of the brig Lubra. The facts appear sufficiently in the opinion. Defendant was entitled to a trial by jury.

” The order, as originally entered, declared that said company “ is excluded from its corporate rights, privileges and franchises and dissolved.” On motion of the receiver, an order was granted modifying the original order — among other things, by striking out the words last quoted as to the dissolution of the company. The further facts apuear sufficiently in the opinion. Upon this appeal, the facts and law were reviewable.

(Reported below, 10 Hun, 23.) This action was brought by plaintiff against defendant Palmer, as collector of taxes of the town of New Lots, to vacate an assessment upon lands of plaintiff as a cloud upon the title, and to restrain the said collector from collecting the same. The facts appear sufficiently in the opinion. A court of equity has, under the circumstances, jurisdiction to grant the relief asked for.

This was an action of ejectment brought by plaintiff, as sole heir-at-law of Laura Sellick, deceased, to recover possession of certain premises situated in Fredonia, Chautauqua county. The premises in question were conveyed, in 1861, in trust to the trustees of the Methodist Protestant church of Fredonia, and their successors in office and assigns.

This action was brought to recover damages for an alleged breach by defendants of a covenant in a lease. The lease in question, which was under seal, was executed by plaintiffs, as lessors, who leased to defendants certain premises in New York for the term of ten years, for a specified rent, payable in monthly installments.

Appeal irom order of the General Term of the Supreme Court, in the first judicial department, reversing a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term, and ordering a new trial. (Reuorted below, 11 Hun, 475.) This action was brought by plaintiff to enforce an alleged equitable lien upon certain premises in New York city, the title to which was in defendant.

(Reported below, 13 Hun, 349.) The assessment in question was for grading and paving a portion of Seventeenth street in said city. The lots of the petitioner were assessed at $243.18 each. The value, as estimated by the assessor, was $100 each,.and the ground of the application was that the assessors had no authority to assess the lots to more than one-half their value. The order of Special Term reduced the assessment to fifty dollars on each lot.

The nature of the action and the facts appear sufficiently in the opinion. Plaintiff had sufficient notice to put it on inquiry. (Holbrook v. N. J. Zinc Co., 57 N. Y., 623; Angle v. N. W. Mut. L. Ins. Co., 92 U. S. R., 342.) Defendant Livingston could reclaim the certificate from any one but a bona fide holder, without notice.

(Reported below, 11 Hun, 258; reported on a former trial, 50 N. Y., 396.) The action was brought to recover for an alleged wrongful discharge by the Farmers and Mechanics’ Bank of Rochester (a State institution, of which this defendant is the successor), of a judgment in favor of the bank, after the judgment had been assigned to the present plaintiff.

■These actions were brought against defendants, alleged shareholders of the Old Saratoga Union Mercantile Association,” to charge them as such shareholders for certain debts alleged to be owing by it to plaintiff. . The complaint in each case alleged, in substance, that said association was a joint stock association consisting of more than seven shareholders, including defendants.

(Reported below, 8 Hun, 265.) The nature of the action and the facts are sufficiently set forth in the opinion. No such possession was in plaintiff as would entitle him to maintain this action, because defendant was in possession of the locus in quo under a fair color of title.

The nature of the action and the facts are set forth sufficiently in the opinion. Until an abandonment was proved plaintiff could only recover for a partial loss of freight unless the court found that freight ivas not earned and did not accrue upon the portion of the cargo landed.

(Reported below, 9 Hun, 674; reported on a former appeal, 47 N. Y., 635.) This action was to recover damages for injuries sustained by the falling of a portion of a wooden awning, erected on the corner of Fourth avenue and One Hundred and Twenty-fifth street, in the city of New York. The awning was erected by the tenant' of the building about the month of June, 1860. The injury was occasioned to the plaintiff on the 22d day of February, 1867.

<p>Where, upon a criminal trial, the court is the trier of a challenge for principle cause, and also of a challenge for favor, the latter immediately succeeding the former, in the determination of the latter the court may take into consideration the testimony of the proposed juror given upon the former challenge; as may also an appellate court having power to review the holding.</p> <p>Under the act of 1873 (chap. 427, Laws of 1873), providing that either</p> <p>- party may except to the decision of the court upon a challenge of a juror, and that upon a writ of error or certiorari the court may review such decision the same as other questions arising upon the trial, this court may review the determination of the trial court in a criminal action upon a challenge, both on questions of law and of fact.</p> <p>One who has formed an opinion or impression, from the reading or report, partial or complete, of the testimony against a prisoner on a former trial, however strong his belief and purpose that he will decide the case on the evidence to be adduced, and will give an impartial verdict thereon, unbiased by that impression, cannot be readily received as a juror indifferent toward the prisoner and wholly uncommitted.</p> <p>Upon a challenge for favor, on the trial of an indictment for murder, the proposed juror testified that he had read in a newspaper the account of the evidence for the prosecution upon a former trial of the prisoner under the same indictment, whereon the jury had failed to agree, and had heard others talk about that trial a g-ood deal; that he had never expressed an opinion, but had an impression, from what he had heard and read, which led him to that opinion as to the prisoner’s guilt, so that at the time he had an impression, opinion or belief which would take evidence to remove; that he believed that he could render a fair and impartial verdict upon the evidence, meaning by that that he would endeavor to weigh the evidence impartially, and render a verdict accordingly ; that he would enter upon the discharge of his duties as juryman with an impression as to the guilt of the prisoner, which it would take evidence to remove, but he thought his previously formed opinion or impression would not bias or influence his verdict at all, and that he could decide the case fairly, according to the testimony, without reference to any previous opinion; that his opinion or impression was formed on the supposition that the evidence which he had read was true; that he still entertained the same, and had never had cause to change or doubt the truth of it, and that he supposed he had an opinion against the prisoner as to his character as a man. The challenge was overruled. Held, error.</p> <p>Another juror challenged for favor gave similar testimony, save that he did not directly answer the question whether it would take evidence to remove his impression. He testified that he thought he had expressed his impression, which he still had, but thought he could remove it, and would do it if sworn as a juror. Held, that the challenge was improperly overruled. Greenfield v. The People (13 Hun, 242), overruled.</p>

the Supreme Court, in the fourth judicial department, entered upon an order reversing a judgment sustaining a demurrer to the complaint herein; and overruling the demurrer, and directing a judgment for plaintiff thereon.

(Reported below, 10 Hun, 466.) The action was upon a policy of fire insurance. The facts appear sufficiently in the opinion. The fact proved that the vacancy increased the risk not being contradicted, could not be disregarded by the jury. (Robinson v. McManus, 4 Lon., 380; Elwood v. Tel. Co., 45 N. Y., 549; Loower v. Meeker, 25 id., 361; Seibert v. Erie R. Co., 49 Barb., 583; Leitch v. At. Mat. Ins.

Welch, an infant under the age of fourteen years. Said infant was the son of John D. Welch, jr. and Kate Welch, his wife. On the 21st day of April, 1874, said John D. Welch, jr., died, leaving his widow and infant son him surviving. About fourteen months previous to the happening of that event, his wife voluntarily left him because of a disagreement between herself and his family relatives, with whom they had resided.

(Reported below, 12 Hun, 195.) The indictment charged in substance, among other things, that the tracks of said railroad corporation crossed said highway; that the corporation carried the highway over its tracks by a bridge, approached by “a long and steep ascending embankment;” that the embankments are rotten, and are, “for the most part, made of quick sand, and narrow, viz., sixteen feet in width, impassable for teams and wagons drawing any load passing and repassing over…

This action was upon a promissory note alleged in the complaint to have been made by defendant Wilhelm Oppold, payable to the order of defendant Joseph Letz, on demand, “with interest,” and to have been indorsed by defendant Louisa Oppold, as follows : “ For value received, I hereby promise to pay the within note and charge my separate and individual property and estate with the payment thereof, and waive notice of presentment and non-payment and protest.” “ “ LOUISA…

(Reported below, 10 Hun, 557.) Said suit was brought for acts of alleged trespass committed by the relator while acting as overseer of highways, which acts were done under the authority and dirección of the commissioner of highways of said town, in removing obstructions from what was claimed to be a public highway. Upon the trial the jury found the locus in quo to be a private road, and the relator a trespasser, and gave a judgment for twenty-five dollars damages.

(Reported below, 11 Hun, 301.) This action was brought for the alleged unlawful taking and conversion of certain personal property. Plaintiff claimed under an assignment for the benefit of creditors, executed by one Wood ven, which gave preferences. The assignment was executed July 1(5, 1875 ; the inventory and schedules in due form were filed J uly twenty-eighth, and the bond required was approved and filed August third.

The nature of the action and the facts are set forth sufficiently in the opinion. The support offered by defendant Pettit being as good as he could afford there was no breach of the bond.

<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 against defendant, a national bank, to recover the penalties imposed by the national banking act for violation of the provisions thereof (U. S. R. S., §§ 5197, 5198) limiting the amount of interest to be taken by said banks upon loans and discounts.</p> <p>The referee found, in substance, that defendant, from November 1, 1874, to February 7, 1876, discounted commercial paper for plaintiff to the amount, in the aggregate, of $158,003.91 at the rate of twelve per cent; the greater portion of such paper was business paper, all of which was paid to defendant. The referee found that plaintiff was entitled to recover twice the amount of interest so received in excess of seven per cent upon the business, as well as the accommodation paper.</p> <p>This action cannot be maintained as the discount of business paper is not within the prohibition of the usury laws of this State. (Crane v. Hendricks, 9 Wend., 569; Mazuzan v. Anderson, 4 Hill, 472; Cobb v. Titus, 10 N. Y., 198; Nash v. White’s Bk., 68 id., 396.) A national bank has the same right as natural persons to purchase business paper at any rate of discount that may be agreed upon. (Tiffanny v. Nat. Bk. of Missouri, 18 Wall., 409; 64 N. Y., 216.)</p> <p>Plaintiff was entitled to recover twice the excess over the legal rate of interest taken upon the discount of business or commercial notes as well as upon discount of accommodation paper. (U. S. R. S., §§ 5197, 5198; Nash v. White’s Bk., 68 N. Y., 396.) National banks must act in transacting business strictly in the manner prescribed by Congress. (2 Kent’s Com., 290, 299; U. S. R. S., §§ 5136, subd. 7.) If the transaction was a loan defendant was liable under the statute. (People v. Utica Ins. Co., 15 J. R., 392; Firemans’ Ins. Co. v. Ely, 2 Cow., 699; Fleckner v. Bk. of U. S., 8 Wheat., 338; Nia. Co. Bk. v. Baker, 15 Ohio St., 69; F. and M. Bk. v. Baldwin, Sup. Ct. Minn., 1876; 5 Sloan’s L. & T. Reg., No. 1, p. 14; Talmage v. Pell, 3 Seld., 343, 348.) Defendant’s ignorance that the accommodation paper was such when discounted does not avoid the liability. (Bk. of Salina v. Alvord, 31 N. Y., 473; Hall v. Earnest, 36 Barb., 585.)</p>

<p>H. held a promissory note made by Mcl., for the accommodotion of F,, the payee and first indorser. The note being past due, and H. pressing for payment, plaintiff, at the request of Mcl., and in consideration of the assignment to him of a bond and mortgage which had been given to Mcl. by F. as security, agreed with H. to purchase the note, and to secure the purchase by his own note, payable January 1, 1871; the note of Mcl., and the bond, mortgage and assignment to remain in the hands of the attorney of Mcl. until the maturity of plaintiff’s note; if that note was paid, then the papers so deposited to be delivered to plaintiff; if not paid, the note to be returned to H., and the bond and mortgage to Mcl. Plaintiff gave his note, and the papers specified were deposited under the agreement. H. procured plaintiff’s note to be discounted before maturity. It was paid by plaintiff at maturity, and the papers deposited were delivered to him. In an action upon the note made by Mcl., held, that the effect of said agreement was to extend the time of payment and suspend the-right of action thereon until the maturity of the note given by plaintiff, and that thereby defendant B., a subsequent indorser, was discharged.</p>

(Reported below, 10 Hun, 515.) The facts submitted were, in substance, these : Plaintiffs are publishers of the Troy Daily Times, a newspaper published daily in the city of Troy. The common council of said city, in March, 1876, designated by ordinance said paper as one of the four official papers of the city as required by the city charter (§ 3, title 2, chap. 129, Laws of 1872, as amended by chap. 813, Laws of 1873).

(Reported below, 9 Him, 350.) The nature of the action and the facts are sufficiently set forth in the opinion. Defendant had a right to use the stream as it passed through his lands for all reasonable purposes, and in the manner in which such streams are usually enjoyed. (Carhart v. Aub. Gas.

(Reported below, 11 Hun, 302.) This action was brought for the forecloseure of a mortgage.

(Memorandum of decision below, 11 Hun, 365.) This was an action to recover for work and labor. Plaintiff claimed and recovered judgment for his own services as superintendent of defendant’s woolen mill, for the work and labor of his wife and of several minor children; and also, as assignee of two adult sons, for their own work and labor and that of their wives. Plaintiff was not entitled to maintain this action for his wife’s services.

<p>Appeal from order of the General Term of the Court of Common Pleas, in and for the city and county of New York, reversing a judgment in favor of defendant, entered upon an order dismissing the complaint on trial, and granting a new trial.</p> <p>This action was originally commenced against the World Mutual Life Insurance Company, upon a policy issued by said company to plaintiff upon the life of Nelson H. Mowry.</p> <p>The defense was a breach of warranty, which was based upon alleged false statements in the written application for insurance.</p> <p>The present defendant haying been appointed receiver of said company, was substituted as defendant in its stead.</p> <p>The facts pertinent to the questions discussed are sufficiently set forth in the opinion.</p> <p>Plaintiff, whether Shepley is held to be his agent or not, must be held to his own declarations and his warranty. (Jeffries v. Life Ins. Co., 22 Wal., 47, 56; Barteau v. Phos. Mut. Life Ins. Co., 67 N. Y., 595; Flynn v. Eq. As. Soc., id., 500.) Shepley was not defendant’s agent, and it could not be held to be estopped by his acts. (Smith v. Kidd, 68 N. Y., 130, 141, 142; Bank v. Walker, 66 id., 424; 67 id., 500; Estavez v. Purdy, 66 id., 446.)</p> <p>Defendant cannot claim breach of warranty as to any statements in the application filled in by Shepley. (Young v. Hartf. F. Ins. Co., 6 Ins. L. J., 543.) The Shepleys were agents of the World Insuranee Company when soliciting and procuring the insurance, and it is bound by their acts. (Bodine v. Exchange F. Ins. Go., 51 N. Y., 117; Post v. Ætna Ins. Co., 43 Barb., 361; Wharton on Agency, § 69, p. 42; Haseler v. Dugan, 5 C. B. [N. S.], 530; 59 Ill., 33; Hawkins v. Baker, 46 N. Y., 666; Curtis v. Leavitt, 15 id., 47; Shaft v. Phoenix Mut. L. Ins. Co., 8 Hun, 632; Meehan v. Forrester, 52 N. Y., 277; Westchester Fire Ins. Co. v. Earle, Ins. Law Jour., 61, vol. 5, 1876; Bennett v. Judson, 21 N. Y., 233; Mundorff v. Wickesham, 63 Penn., 87; Booth v. Burel, 40 Barb., 114; Beale v. Park Fire Ins. Co., 16 Wis., 257; Mass. Mut. L. Ins. v. Echelman, Ins. Law Jour., vol. 7, 125.) The acts of the Shepleys in procuring the application were adopted, and their agency established and ratified by the company. (Curtis v. Leavitt, 15 N. Y., 47; Bennett v. Judson, 21 id., 239; Hawkins v. Baker, 46 id., 670; Lawrence v. Tayler, 5 Hill, 107; Maclean v. Dunn, 4 Bing., 722; 15 C. E. R., 129; Woodbury Sav. Bk. v. Ch. O. L. I. Co., 31 Conn., 317.) The action of the company was such as to estop it from claiming breach of warranty as to any of the answers filled in in the application by Wm. T. Shepley. (Baker v. Home L. Ins. Co., 5 Ins. L. J., 662; 64 N. Y., 648; Combs v. Hannibal Sav. and Ins. Co., 43 Mo., 148; Plumb v. Cattaraugus Co. Mut. Ins. Co., 18 N. Y., 392; Brown v. Same Co., id., 385; Jennings v. Chenango Co. Mut. Ins. Co., 2 Denio, 75; Kenedy v. St. Lawrence Mut. Ins. Co., 10 Barb., 285; Chase v. Hamilton Ins. Co., 20 N. Y., 52; Insurance Co. v. Wilkinson, 13 Wall, 222; Kingston v. Ætna Ins. Co. [Iowa Sup. Ct.], Ins. Law Jour., vol. 5, 352; Mentz v. Lancaster Ins. Co. [Penn. Sup. Ct.], Law Jour., vol. 5, 447; Planters' Ins. Co. v. Myers, Ins. Law Jour., vol. 7, 56; Woodbury Sav. Bk. v. Charter Oak Ins. Co., 31 Conn., 517.)</p>

(Reported below, 11 Hun, 525.) The nature of the action and the facts are set forth sufficiently in the opinion. As plaintiff’s tolls were collected in Albany, and its treasurer had his office and resided there, it was not liable to assessment elsewhere. (1 R. S., 389, § 6.) This provision of the Revised Statutes applies to both real and personal estate. (Utica Cotton Co. v. Suprs., etc., 1 Barb.

Appeal by Michael Grosz ,ancl Frederick H. Grosz, purchasers at a foreclosure sale herein, from an order of the General Term of the Supreme Court, in the first judicial department, reversing an order of Special Term, which enjoined and restrained the plaintiffs from enforcing against said' purchasers an order requiring them to complete their purchase, or pay any deficiency arising on re-sale, and certain other orders referred to therein, or from taking any proceedings…

This action was brought to recover for a large number of gas meters alleged to have been sold and delivered by plaintiff’s assignor, Jose F. Navarro, to defendant under a contract between them. Plaintiff moved for a reference on affidavits, alleging that the trial would involve the examination of a Ions: account; the motion was opposed by defendant on affidavits denying that any account was involved; the court granted the motion, no appeal was taken.

<p>The provision of the charter of the city of Cohoes (§ 5, title 13, chap. 912, Laws of 1869), declaring, that “no action against the city on a contract, obligation or liability, express or implied, shall be commenced except in one year after the cause of action shall have accrued,” does not include actions for torts; and so, does not apply to an action against the city for damages resulting from negligence in not keeping the side-walks of the city in proper repair.</p>

the complaint as to her on trial, and granting a new trial. This action was upon a promissory note made by the defendant Medbury, payable to the order of plaintiffs, and indorsed by said defendant Maria Brown. The facts appear sufficiently in the opinion.

This action was brought to recover against defendant, as sheriff of the county of Jefferson, the amount of an execution issued to him as such, the complaint alleging that after a levy upon sufficient property of the judgment debtor to satisfy the execution, defendant illegally released the levy and returned the execution unsatisfied.

The facts appear sufficiently in the opinion. The trial of the accused without a jury was unconstitutional and void. (People v. Kennedy, 2 Park. Cr., 312; In re Sweatman, 1 Cow., 151, note; 3 R. S. [6th ed.], 242, § 71; id., 1009, §§ 29, 30; id., 1004, §§ 8, 9, 12; id., 1007, § 19; Laws 1855, chap. 337, § 5; Laws 1858, chap. 282, § 8; Laws 1871, chap. 302, p.,602; In re Devine, 21 How.

The nature of the action and the facts are set forth sufficiently in the opinion. If defendant agreed to make repairs not contemplated by the lease-it would be void for want of a new consideration. . (Walker v. Gilbert, 2 Robt., 5; 1 Swe., 25; 43 How. Pr., 33; Speckler v. Sax, 1 E. D. S., 253; Post v. Wetter, 2 id., 248.) The court erred in granting the motion for a nonsuit. (Labor v. Koplen, 4 N. Y., 547; Brown v. Mohawk and H. R. R. R. Co., 1 How. App. Cas., 576.)

The nature of the indictment and the facts appear sufficiently in the opinion. The judgment of the Supreme Court was erroneous because the record did not show a final judgment against plaintiff in error upon the indictment. (2 R. S., 736, § 21; id., 739, §§ 14-17, 20, 23; id., 737; 3 id. [2d. ed.], 851, § 20; Gray v. People, 25 Wend., 465; Thompson v. People, 3 Park. Cr., 208; Philips v. People, 57 Barb., 356; Dawson v. People, 5 Park.

(Reported below, 13 Hun, 530.) The facts appear sufficiently in the opinion. The property of the testatrix being derived by legacy in her father’s tvill became vested in her at and from the time of his death. (Birdsall v. Hewlitt, 1 Paige, 32.) Interest on each legacy should run from the time it became due and payable, viz.: At and from the expiration of one year from the death of the testatrix.

<p>Appeal from order of the General T erm of the Supreme Court, in the second judicial department, reversing an order of Special Term which denied a motion made on behalf of defendant to vacate an order for the examination before trial of Alexander Studwell, a director of defendant. (Reported below, 14 Hun, 157.)</p> <p>This action was brought by the attorney general in, the name of the People to have the charter of the defendant declared forfeited, on the alleged ground that its capital stock had not been paid in as required by law. The answer was verified by Studwell as director, and upon an ex parte application on behalf of plaintiff an order was issued for the examination before trial, which was claimed to be authorized by section 870 of the Code.</p> <p>A corporation may be examined under section 870 of the Code of Civil Procedure through its officers. (Car v. G. W. Ins. Co., 3 Daly, 16; La Farge v. Ex. Ins. Co., 22 N; Y., 354; U. S. R. S., 113, § 639, subd. 3; U. S. Laws 1867, chap. 196; Cooke v. State Nat. Bk., 52 N. Y., 96; Mix v. Andes Ins. Co., 9 Hun, 398; 17 Alb. L. J., 475; Shaft v. Phoenix Ins. Co., 67 N. Y., 549; Mahone v. M. and L. R. R. Co., 111 Mass., 72.)</p> <p>The witness Stud-well not being a party to the action could not be examined under section 870 of the New Code before trial. (New Code, §§ 396, 525, 839, 870-872; Goodyear v. Phoe. Rubber Co., 48 Barb., 522; Woods v. De Figaniere, 1 Robt., 610, 611; La Farge v. Ins. Co., 22 N. Y., 352; Field v. R. Co 29 Barb., 176; Wright v. R. Co., 28 id., 84; Johnson v. McIntosh, 31 id., 270; Cooke v. State Bk., 52 N. Y., 114; Peck v. Mayor, etc., 3 id., 489; Wash. Bk. v. Palmer, 2 Sand., 686; Erie R. Co. v. Cook, id., 732; Mont. Bk. v. Marsh, 3 Seld., 481; Appleton v. Ins. Co., 9 Vroom. [N. J.], 272; Vermilyea v. Fulton Bk., 1 Paige, 37-38; Wych v. Meal, 3 Peere Wms., 312; Wright v. Dane, 1 Metc., 240; Fenton v. Hughes, 7 Ves., 289; 2 Story's Eq., § 1501; 1 Danl. Ch. Pr., 296-297.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, affirming a judgment in favor of defendants, entered upon the report of a referee. (Reported below, 13 Hun, 38.)</p> <p>The complaint alleged in substance, and the referee found, that on and prior to September 23, 1846, one George Webster was the owner of certain premises in Rensselaer county, which were described in the complaint; that on that day he executed to one David Russell an assignment of all his property, including said premises, for the benefit of creditors. That in May, 1847, said Russell conveyed said premises to Simeon D. Webster, now deceased, to whose rights plaintiffs, as his heirs at law, succeeded. That in October, 1846, one Joseph S-. Keeler recovered a judgment in the Supreme Court against said George Webster, which was assigned to David H. Humphrey ; that an execution was issued thereon and returned unsatisfied; that supplementary proceedings were instituted thereon, a receiver appointed, to whom said George Webster executed an assignment. That an order was granted authorizing the receiver to sell the premises in question, who sold and conveyed the same to said Humphrey, who conveyed the same to Eleanor Webster, the original defendant. She having died, the present defendants, her heirs at law and devisees were substituted as defendants, and brought in by supplemental complaint.</p> <p>The relief asked was that the order authorizing the receiver to sell and convey, and the conveyance by him be set aside as a cloud on plaintiffs’ title ; that defendants be restrained from selling, incumbering or disposing of the property, and that an accounting be had of the rents and profits.</p> <p>The referee further found that neither the assignee nor his grantee, Simeon D. Webster, ever took possession of the premises in question, but that said George Webster continued in possession down to his death in 1861.</p> <p>Further facts appear in the opinion.</p> <p>The proceedings had by Mrs. Webster through the receiver were invalid and only operated as a cloud on plaintiffs’ title. (Field v. Sands, 8 Bosw., 685; Conger v. Sands, 19 How. Pr., 8; Rodman v. Henry, 17 N. Y., 482; Brown v. Gilmore, 16 How. Pr., 527; Crounse v. Whipple, 34id., 334,335; Wait’s ed., Code, p. 570, § 397; Van Wyck v. Baker, 10 Hun, 39; Scott v. Ellmore, id., 68; Mann v. Fairchild, 2 Keyes, 112; Rogers v. Corning, 44 Barb., 229 ; Sharpe v. Kelly, 5 Den., 431 ; R. S. [5th ed.], 35; 1 Cow. & Hill’s Notes [Van Cott’s ed.], 368; People v. Mayor, 19 How., 293; Michigan v. Phoenix Bk., 33 N. Y., 28; Griffith v. Wells, 3 Den., 226; Hyatt v. Wood, 4 J. R., 156; 1 Story’s Eq., § 323; Saunders v. Ld. Annesly, 2 Sch. & Lef., 98, 103; Story on Bailments, § 110; Doe v. Skinner, 7 Ad. & El., 157; S. C., Smith’s L. C. [H. & W. ed.], 537, 571; Doe v. Mills, 2 B. & Ald., 17; Norway v. Rowe, 19 Ves., 154; 1 Hovenden on Frauds, 219, 220; Howard v. Ellis, 4 Sandf. 373; Shelar v. Kelly, 25 Wend., 392; People v. Stiner, 45 Barb., 56, 57; Underwood v. Lord, C., 2 Sch. & Lef., 64; Bk. of Utica v. Miserau, 3 Barb. Ch., 529; Moffatt v. Strong, 9 Bosw., 57; Wells v. Thornton, 45 Barb., 395; Civil Code, § 955; Scranton v. Farmers’ Bk. 24 N. Y., 427; Daugery v. Angore, 2 Ves. Jr., 304; Hammond v. Halsey, 12 Am. L. R. [N. S.], 115, 116; Jackson v. Bradt, 2 Caine’s Ca., 174; Jackson v. Bryan, 1 J.R., 323; 2 Siderfin, 153; Carthew, R., 101; Jackson v. Sample, 1 John. Ca., 231.) The summary proceedings by Mrs. Webster, whereby the title claimed by her in her lifetime, and now by the defendants was obtained, were of no force or validity. (Bitting v. Vandenburgh, 17 How. P., 80; Code, § 298; In the Matter of Roberts, 16 Alb. L. Jour., 55; Lane v. Lutz, 1 Keyes, 203; Robinson v. Stewart, 6 Seld., 190,196; Barnes v. Griffin, 4 Sandf. Ch., 552; Fletcher v. Peck, 6 Cranch, 133; Jackson v. Henry, 10 J. R., 194; Anderson v. Roberts, 18 id., 515, 531; Ledyard v. Butler, 9 Paige, 136.) The only remedy of the plaintiffs for the wrong done them was by an action to set aside the proceedings in question, and the receiver’s deed as a cloud on them title, and for relief from the whole. (Cantine v. Clark, 41 Barb., 633; Lounsbury v. Purdy, 18 N. Y., 515; Clark v. Underwood, 17 Barb., 202; Hackley v. Draper, 4 S. C. R., 614; S. C. on appeal, 60 N. Y., 88; Wright v. Miller, 4 Seld., 9; Rie gal v. Wood, 1 Johns. Ch., 402; Erie R. Co. v. Ramsey, 45 N. Y., 647, 648; Baldwin v. Mayor, 42 Barb., 549; People v. Eddy, 57 id., 603; Loomis v. Wheelwright, 3 Sandf. Ch., 135; Michigan v. Phoenix Bk., 33 N. Y., 28.). The facts call upon the court to interfere and set aside the several acts by which its powers and process have been converted to injustice and oppression. (Loomis v. Wheelwright, 3 Sand. Ch., 135; Broom’s Maxims, 112, 117; Countess of Rutland Case, 6 Rep., 53; Wade v. Simon, 13 M. & W., 647; Sawyer's Case, 3 Rep., 80; Fernior’s Case, 3 id., 77; Warner v. Blakeman, 4 Keyes, 508; 1 Story Eq. J., § 430; Robertson v. Ford, 3 Edwards, 441; Michigan v. Phoenix Bk., 33 N. Y., 25; King v. Platt's Exrs., 34 How. Pr., 29; Marquat v. Marquat, 12 N. Y., 336.) The ground taken that an action of ejectment instead of this action ought to have been brought is wholly untenable. (Dawley v. Brown, 9 Hun, 461; 2 Story Eq. J., § 959; Code, § 167; Coming v. T. and G. Nail Co., 40 N. Y., 204, 207; Andrew v. N. G. S. Co., 11 Hun, 404; Wright v. Wright, 54 N. Y., 437; Rindge v. Baker, 57 id., 209; Armitage v. Pulver, 37 id., 495 ; Emory v. Pease, 20 id., 62; Lattin v. McCarty, 41 N. Y., 107.)</p> <p>The assignment from George Webster to David Russell was void on its face, because it gave the assignee power to sell on credit. (Rapalee v. Stewart, 27 N. Y., 315; Kellogg v. Slawson., 11 id., 335; Jessup v. Hulse, 21 id., 186; Woodburn v. Mosher, 9 Bab., 255.) Eleanor Lansing, the source of defendants’ title, acquired a perfect title under the proceedings upon the Keeler judgment which became a lien, although subsequent to the assignment, because the assignment was invalid. (2 R. S. [m. p.], 359, § 7; Code, § 468; Pettit v. Shepherd, 5 Paige, 502; Scott v. Howard, 3 Barb., 321; Fitch v. Livingstone, 4 Sandf., 712.) These proceedings were proper and regular. (Code, § 459, subd. 3; Small v. Wheaton, 2 Abb., 316; 4 E. D. Smith, 427; Owen v. Dupignac, 9 Abb., 184; Moak v. Coates, 33 Barb., 501; Porter v. Williams, 9 N. Y., 147 ; Drought v. Carliss, 8 Hów., 56.) Defendants not being trespassers, but holding under claim of written title, cannot be dispossessed by plaintiffs as the latter do not show a superior title. (Cox v. Clift, 2 N. Y., 118; Sweet v. Tinslar, 52 Barb., 271.) Plaintiffs could not have as equitable relief judgment for removal of cloud from title aud delivery of possession of the premises until it appeared they had a title or right to such possession. (Lattin v. McCarty, 41 N. Y., 107; Thornton v. St. Paul, etc., R. R. Co., 6 Wkly. Dig., 309.)</p>

628, Laws of 1857) requiring innkeepers.to put up signs, etc. The facts appear sufficiently in the opinion. Where a duty is required to be performed by a public officer, the performance of which involves the exercise of a judicial discretion on his part, a mandamus will not lie. (People v. Super.

04, in discharge of his trust. (Reported below, 8 Hun, 205.) On the 28th of March, 1851, the appellant became the owner of a lease, or declaration of sale, constituting a tax title affecting the premises known as 132 McKibben street, in the city of Brooklyn. He assigned it to one John G. Haight, on the 4th of June, 1851, and then commenced an action thereon against Freeman Brown, a colored man, who was the owner of the fee. Brown died in 1853, leaving two infant children.

<p>Appeal by George W. Lane, late chamberlain of the city of New York, from order of the General Term of the Supreme Court, in the first judicial department, reversing an order of Special Term made in the action above entitled, which denied a motion, on behalf of Mary C. Timpson, for an order directing the appellant and J. Nelson Tappan, the present chamberlain, to pay over to her her proportion of a fund deposited with the appellant by order of the court herein.</p> <p>By the General Term order it was “further ordered that the chamberlain of the city of New York pay to the said Mary C. Timpson, or to her attorney herein, such part or proportion of the sum of $7,194x0% stated in the affidavit of H. A. Ovington to be in the hands of the city chamberlain in money on the 23d day of July, 1877, and of any accumulation thereon in money in his hands as $13,389 the aggregate of the deposit, is to $5,738%%, the amount thereof belonging to said Mary C. Timpson, and it is further ordered that it be referred to John S. Lawrence, Esq., of the city of New York, counselor at law, as sole referee, to take proofs of the facts relating to the manner and specific securities in which said George W. Lane invested the $13,457-%% received by him as city chamberlain on or about the 18th of March, 1874, in this action, * * * * and every part of the said sum of $13,4571-0%, and his disposition of such sum and such securities and investments, and all his acts in relation thereto, and as to the nature and form of the transaction of such investment or investments, and of any or all changes thereof, if any, while he was such city chamberlain, and if such investment or investments were changed from time to time, or at any time, then as to whether such changes were made pursuant to any, and if any, what order or orders of said court, and as to the character and sufficiency of the securities in which any and each of such investments were made, and if on bond and mortgage, whether the mortgaged property was at the time incumbered, and if incumbered, the nature, date and amount of such incumbrances respectively, and in what securities said moneys were invested, or were claimed by said George W. Lane to be invested, and the character and sufficiency of such securities, and his disposition thereof at the time said J. Nelson Tappan became city chamberlain, and as to what said Tappan did thereupon with said securities and with each of them, and as to whether he made any change in said investment or investments, and if so, when and what changes, and whether by any, and if so, when and what changes, and whether by any, and if so, what order or cz’ders, rule or rules of said court, and whether any payments were made thereon, and if so, what payments, and to take proof of all the facts affecting the merits of the said application and petition by said Mary C. Timpson, and that said referee report said proofs to this court, and that on suqh proofs, and on the papers on which said order of the twenty-fourth of July was made, the said Mary C. Timpson be at liberty to apply to this court for such relief as she may be advised, and that all further questions be reversed for the consideration of the court until and when such application shall be made.”</p> <p>A mandamus would not issue against the appellant because it was ziot in his power to do the thing demanded. (People v. Comrs. of Highways, 11 How. Pr., 89; People v. Comrs. of Excise, 7 Abb. Pr., 34; Colonial Life Ins. Co. v. Board Supervisors N. Y., 4 id., 84; People, etc., v. Board Supervisors San Francisco, 28 Cal., 429; Topping on Mandamus, 17; People v. Superv. Greene Co., 12 Barb., 217 ; People v. Superv. Westchester Co., 15 id., 607.) It was a sufficient objection to the issuing of the writ that as an officer he was functus officio. (High on Extraordinary Legal Remedies, 35; People v. Monroe, 20 Wend., 108; State v. Waterman, 5 Nev., 328.) The court would not interfere by mandamus because the party aggrieved has a specific legal remedy. (Tapping on Mandamus, 17; People v. Commrs. Excise, 7 Abb. Pr., 34; People v. Supervisors Greene Co., 12 Barb., 217; People v. Olds, 3 Cal., 167; Napier v. Poe, 12 Geo., 170; Trustees v. State, 11 Ind., 205; People v. Thompson, 25 Barb., 73; People v. Corporations, 1 Wend., 318; Wilkinson y. Providence Bk., 3 R. I., 32.)</p> <p>The fact that appellant’s term of office had expired did not affect the power of the court to grant relief in the mode prescribed by law. (Whipple v. Williams, 4 How. Pr., 29.) The order was not final and was not appealable. (Laws 1849, p. 616, § 11.)</p>

The nature of the action and the facts appear sufficiently in the opinion. Plaintiff’s appointment appearing by the record its regularity cannot be questioned collaterally, or otherwise, than in a direct proceeding for that purpose. (Sagory v. Dubois, 3 Sandf.

<p>A municipal' corporation cannot set up in bar of an action to recover a debt due rom it, that it was once willing and offered to pay the debt. Defendant, in 1869 and 1870, through its proper officers, issued certain warrants or orders upon its treasurer, payable when collected or realized from tax sales for a local improvement, with interest three months from date; the necessary funds to pay the orders were collected, and subsequently defendant’s common council passed a resolution that after a certain date interest on the orders should cease, and the treasurer published notices thereof in the official city paper. When the orders were presented the treasurer refused to pay interest after the date specified in the resolution, but offered to pay the principal sum with interest up to that time, which plaintiff declined to accept. In an action upon the orders, held, that plaintiff was justified in refusing to accept thq offer, and defendant was liable for full interest; that the resolution and publication of notice, in the absence of any proof that the notices came to his knowledge, did not change the obligation of defendant.</p> <p>Also held, that the provision of the amendment of 1872 to defendant’s charter (§ 9, chap. 828, Laws of 1872) authorizing it to stop interest upon such warrants, by giving notice in the official paper, did not apply to the warrants in question; that it was prospective and only applied to warrants issued after its passage.</p>

(Reported below, 12 Hun, 512.) This action was brought by plaintiff as administratrix of Cornelius Poillon, deceased, to recover a balance of his deposit accomit with defendant, standing to his credit at the time of his death, which occurred October 11, 1876.

Boughton, executor of the will of David Flint, deceased. (Reported below, 13 Hun, 206.) On the accounting before the surrogate, the said executrix presented a claim against the estate of the testator, in her own _ behalf, to the amount of $800 with interest from the 15th day of April, 1859, for moneys alleged to have been placed in the hands of the testator on deposit for the said respondent, who was the testator’s wife.

<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 without a jury. (Reported below, 10 . Hun, 511.)</p> <p>This action was upon a promissory note, alleged in the complaint to have been made by the firm of Hathorn & Southgate, payable to the order of defendant, Frank H. Hathorn, and by him indorsed and transferred to plaintiff.</p> <p>The facts appear sufficiently in the opinion.</p> <p>Plaintiff not being the real party in interest was not entitled to recover. (Code, § 111; Met. B'k v. Lord, 1 Abb., 185; 4 Duer, 630; Flood v. Reynolds, 13 How., 112; Duncan v. Lawrence, 6 Abb., 304; 3 Bos., 103; Brown v. Penfield, 36 N. Y., 473; Tamisier v. Capard, 17 Abb., 187; Killmore v. Culver, 24 Barb., 656; Sandford v. Sandford, 45 N. Y., 723; Clark v. Phillips, 21 How., 87; James v. Chalmers, 6 N. Y., 215.) Plaintiff’s evidence being only prima facie proof, it Was not conclusive and defendants had a right to contradict it. (Bedell v. Caril, 33 N. Y., 581.)</p> <p>In the absence A mala fides the possession by plaintiff of the note indorse 1 in blank constituted in fact a written assignment to him am’' made him the legal owner of it and the proper person to bring ;his action. (City B'k of New Haven v. Perkins, 29 N. Y., 54; Brown v. Penfield, 36 id., 475, 476; Gage v. Kendall. 15 Wend., 640; Eaton v. Alger, 2 Keyes, 42: Williams v. Brown, id., 488; Sheridan v. Mayor, 68 N. Y., 36; Allen v. Brown, 44 id., 231; Devol v. Barnes, 7 Hun, 342, 343; Cummings v. Morris, 25 N. Y., 627; Land v. Seamans Sav. B'k, 23 How., 259, 260; Lovell v. Evertsen, 11 J. R., 52; Gage v. Wendall, 15 Wend., 640; Collins v. Gilbert, 4 Otto, 753: 44 N. Y., 349; 5 Wend., 497; 29 N. Y. Rep., 554; 36 id., 473; 4 Weekly Digest, 28.)</p>

The cause of actiou, as set forth in the complaint, was for money loaned. The order of arrest was issued upon affidavits alleging fraud in procuring the loan. The Special Term vacated, the order, on the ground that the extrinsic facts alleged in the affidavits were not set forth in the complaint. When a complainant fails to show in his complaint that his case is one of those mentioned in sections 549 and 550 of the New Code, an order of arrest already granted must be vacated.

This action was brought by plaintiff, as assignee in bankruptcy of C. F. Freman & Bro. It is reported on a former appeal in 64 FT. Y., 242. The complaint contains five counts, the first four alleging in substance the making of various usurious loans by the defendant to the bankrupts, and the payment by the latter of the usurious interest, which plaintiff asked to recover back.

This was an action for the settlement of partnership accounts. Prior to May 27, 1871, the parties had been co-partners in the lumber business, and in operating a planing-mill.

(Reported below, 8 Hun, 16.) The nature of the action and the facts are set forth sufficiently in the opinion. The civil damage act so far as it assumes to give a right of action against the owner of the building in which the intoxicating liquors were sold for damages is unconstitutional.

<p>Appeal from judgment of General Term of the Supreme Court, in the third judicial department, affirming a judgment in favor of plaintiff, entered upon a verdict, and affirming an order denying a motion for a new trial. (Eeported below, 9 Hun, 558.)</p> <p>This action is brought under the civil damage act (chap. 646, Taws of 1873) to recover for alleged injury to plaintiff’s means of support, in consequence of the intoxication of his minor son, caused by liquor sold to him by defendants.</p> <p>The facts appear sufficiently in the opinion.</p> <p>The act under which this action was brought was unconstitutional. (Baker v. Pope, 2 Hun, 557-558.) No person is liable in damages for the necessary or natural consequences of a lawful act. (Radcliff’s Exrs. v. Mayor, etc., 4 N. Y., 195; Townsend v. N. Y. C. R. R. Co., 56 id., 295.) The act was unconstitutional because under its provisions a person could be deprived of his property without due process of law and without his consent. (Mr. Carr’s Points; Bertholf v. O'Reilly, Taylor v. Porter, 4 Hill, 40; Bloodgood v. R. R. Co., 18 Wend., 56, Senator Tracy; Baldwin v. Mayor, etc., 2 Keyes, 395, Peckham, J. ; Preston v. Drew, 33 Maine, 558; Bronson, Ch. J., 4 Comst. p., 250; Fisher v. Clark, 41 Barb., 329; Powers v. Bergen, 2 Seld., 358.)</p> <p>The civil damage act is constitutional and is to be construed as a part of the general excise law. (Metropolitan Board Excise v. Barril, 34 N. Y., 657; People, etc., v. Board, etc., 59 id., 92; Phelps v. Racey, 60 id., 11, 13; Wynehamer v. People, 13 id., 378; Baker v. Pope, 2 Hun, 556; Hayes v. Phelan, 4 id., 733; Dubois v. Miller, 5 id., 332; Jackson v. Brookins, id., 530; Franklin v. Schermerhorn, 8 id., 112; Bartholf v. O'Reilly, id., 16; Mead v. Stratton, id., 148; Quinn v. Russell, id., 319; Aldrich v. Sayer, 9 id., 537; Volans v. Owen, id., 558; Bedore v. Newton, 54 New Hamp., 117; Mulford v. Clewell, 21 Ohio St., 191; Schneider v. Hosier, id., 98; State v. Luddington, 33 Wis., 107; Wightman v. Devere, id., 570; Kreiter v. Nichols, 28 Mich., 496; Worley v. Spurgeon, 38 Iowa, 465; Woolheater v. Risley, id., 486; Hackett v. Smalsley, 77 Ill., 109; Schafer v. Smith, 4 Cent. L. F., 271.)</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 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>The parol promises made before the execution of the lease are merged in it and cannot be heard to affect its validity. (Clive v. Willougby, 7 Hill, 83; Speckels v. Sax, 1 E. D. Smith, 253; Johnson v. Oppenheim, 55 N. Y., 280; Thorpe v. Sughi, 55 Ala., 530; Brownell v. Haskell, 22 Pick., 310; Thorpe v. Ross, 4 Keyes, Payne v. Ladue, 1 Hill, 116; Erwin v. Saunders, 1 Cow., 249; Jarvis v. Palmer, 11 Paige, 650.) Promises though not performed are not misrepresentations within the legal meaning of that word. (Kerr on Fraud and Mistake, 82.) If defendant had failed to keep her promise as to supplying deficiencies in the furniture this would not be ground for a complete cancellation of the lease. (Tibbits v. Percy, 24 Barb., 39; Etheridge v. Osborn, 12 Wend., 529; McCoy v. Hill, 2 Litt. [Ky.], 372; Hart v. Windsor, 12 M. & W., 5.)</p> <p>Fraudulent representations will vitiate any contract. (Story’s Eq., § 192; Wilson v. Force, 6 J. R., 110; Erie R. Co. v. D., L. and W. R. R. Co., 6 C. E. Green [N. J.], 283; State B’k v. Holcomb, 7 Halst. [N. J.], 191; there was a failure of consideration. (Dyett v. Pendleton, 8 Cow., 727.)</p>

Wadsworth, deceased. By the will of said deceased his sons, Charles F. and Craig W. Wadsworth, and Martin Brimmer, were appointed executors. Held: descended, gone and been disposed of if the same had not been so sold and conveyed by said trustees. “ Whenever there shall be less than three executors and trustees competent to act in the execution of this will, or the trusts hereby created, it shall be the duty of the survivor or survivors to apply to the proper court for the…

The nature of the action and the facts are set forth sufficiently in the opinion. . The attempt of the hank by the words printed on the bill bf lading to create a trust and lien in its favor as pledgee upon the wheat, after it had passed with its assent into the possession of Brown, the general owner, was ineffectual in law to defeat the sale by. Brown to defendants.

<p>Appeal from judgment- of the General Term of the Superior Court of the city of New Yoik, affirming a judgment in favor of plaintiff, entered upon a verdict.</p> <p>This was an action for the alleged conversion of a boat load’of wheat.</p> <p>. The defendant Brown, who was a commission merchant and dealér in produce at New York, sent the firm of Sears & Daw, grain commission merchants, and his correspondents at Buffalo, an order to buy for him a cargo of wheat. Brown furnished no money or credit with which to make the purchase, but the understanding and mode of business was that Sears & Daw should purchase the grain on their own account, procuring the funds by discount of drafts on Brown, secured by transfer of the wheat. On receiving the order Sears & Daw applied to plaintiff for the discount of a draft on Brown for the purchase-price to be secured by a transfer to it of the wheat, to which plaintiff assented. Sears & Daw having purchased the wheat, shipped the same by canal boat to New York, taking therefor a bill of lading, running to : “ Account and order Fanners and Mechanics’ National Bank of Buffalo. Notify E. S. Brown, New York.” ' Scars & Daw drew their draft at twenty days on the defendant Brown, and procured the same to be discounted by the plaintiff, and upon such discount delivered to plaintiff the bill of lading and insurance receipt. The proceeds of the discount paid for the wheat. Afterwards, and before sending them forward to New York, the plaintiff caused to be stamped upon the bill of lading a special indorsement as follows : “To E. S. Brown.</p> <p>“ The property mentioned in this bill of lading with insurance on the same, is pledged to the Farmers and Mechanics’ Bank of Buffalo, as security for the payment of the accompanying draft for $7,791.72, and the property is placed in your custody in trust for that purpose, and is not- to be diverted to any other use until the draft is paid ; and upon your accepting and paying the draft, the claim of this bank will cease. Without recourse.</p> <p>“F. SID WAY,</p> <p>, “ Cashier?</p> <p>And upon the draft was indorsed the following, “the documents hereunto annexed are to be delivered to drawee on acceptance.” The draft was also indorsed by the plaintiff for collection, and with the bill of lading and insurance receipt immediately sent forward to a New York bank. The New York bank presented the draft for acceptance to defendant Brown, and upon acceptance delivered to him the bill of lading and insurance receipt. Afterwards, when the wheat arrived in New York, defendant Brown paid the freight and other charges thereon, and received it from the carrier, November tenth. Defendant Brown sold the wheat ‘‘ on ’Change ” to a broker, for defendant Atkinson, who paid for the same without actual notice of any claim on the part of plaintiff. Brown suspended payment before the draft matured.</p> <p>Plaintiff’s right to recover depended upon the notice indorsed by it upon the bill of lading whereby it claimed a continuance of its lien until payment of the acceptance. (Bk. of Comrce. v. Mer. Bk., 2 Otto, 92, 97.) A promise to hold goods for the benefit of another does not give a specific lien on the goods themselves, and if the goods or their proceeds are diverted to another use the promise cannot follow them into the hands of third parties. (Gibson v. Stone, 43 Barb., 285.) As there was nothing in the notice or indorsement of the bill of lading in terms forbidding Brown to sell the wheat he was justified in assuming that he had a right to sell. (Russell v. Wetmore, 3 N. Y. Leg. Obs., 318; Story on Agency, § 74; Hoffman v. Ætna Ins. Co., 32 N. Y., 405, 413; Blossom v. Griffin, 13 id., 569.) The right plaintiff claimed to have reserved by the indorsement was intended to operate as a mortgage in its favor, and as it was not accompanied by an actual and continued change of possession it was void as against a subsequent bona fide purchaser. (S. L. 1833, chap. 279, § 1; 2 Fay’s Dig., 86.) Defendant Atkinson was protected by the factor’s act, even if the indorsement should be held to control the rights of the parties. (S. L. 1830, chap. 179, § 3; Fay’s Dig., 595; Gibon v. Stanton, 9 N. Y., 476; Bailey v. H. R. R. Co., 49 id., 70; Patterson v. Perry, 5 Bosw., 518; Heard v. Brewer, 4 Daly, 136; Coller v. Shepard, 19 Barb., 305; Lewis v. Mott, 36 N. Y., 395.)</p> <p>The points are substantially the same as those in F. and M. Nat. Bk. of Buffalo v. Logan*</p>

This was an action to recover advances adeged to have been made by plaintiffs, under authority of a letter of credit issued by defendant. Held: (Rapallo, J.; Andrews and Miller, JJ., concurring ; Church, Ch. J., and Folger, J., dissenting), that defendant could not, by his revocation of the credit, escape liability to indemnify plaintiffs against responsibilities which they had incurred, or require them to violate contracts which they had made, in pursuance of the letter of…

<p>(Mem. of decision below, 11 Hun, 509.)</p> <p>Disposed of on the facts.</p>

<p>Reported below, 10 Hun, 531.</p>

<p>Reported below, 10 Hun, 20.</p>