Volume 76 — New York Reports

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, affirming a judgment in favor of plaintiffs, entered upon a verdict.</p> <p>This action was brought by plaintiffs, as assignees in bankruptcy of George F. Paddock & Merrit Andrus, who composed the firm of George F. Paddock & Co., to recover the value of the three promissory notes, and certain insurance scrip, alleged to have been transferred by said bankrupts to defendant, in violation of the bankrupt act.</p> <p>The facts appear sufficiently in the opinion.</p> <p>Paddock & Co. being the mere agents of defendant to collect the notes, became trustees for defendant, and could not lawfully divert them, or impair defendant’s title to them. (Clark v. Iselin, 21 How. [U. S.], 360, 368; White v. Platt, 5 Den., 269.) Defendant’s right by virtue of its title to the notes extended to the proceeds and attached to any securities in which they might be invested. (Newton v. Porter, 69 N. Y., 133; Taylor v. Plumer, 3 M. & S., 562.) Defendant by exchanging the old notes for the new ones and the stock did not impair its right to the continuing security to which it was entitled, and the exchange was not a violation of the bankrupt act. (Cook v. Tullis, 18 Wal., 332; 21 id., 360; Stevens v. Blanchard, 3 Cush., 169; Sawyer v. Turpin, 91 U. S., 114.) Plaintiffs, as the assignees in bankruptcy of Paddock & Co., took only the rights of the bankrupts subject to all equities existing against them. (Winslow v. McLellan, 2 Story, 495; In re J. Dow, 6 N. B. R., 11; In re Griffith, 3 id., 179.)</p> <p>The State court had jurisdiction of this action. (Cook v. Whipple, 55 N. Y., 150; Goodrich v. Wilson, 119 Mass., 429; Kidder v. Horrobin, MSS. op. Ct. Apps.; Wente v. Young, 12 Hun, 220; Olcott v. McLean, 10 id., 277; Frost v. Hotchkiss, 13 Nat. Bk. Reg., 443; Wiswell v. Campbell, 3 Otto, 347.) There was not such an exchange of securities between defendant and Paddock & Co. as is contemplated by the bankrupt act. (Clark v. Iselin, 21 Wal., 360; Buchanan v. Smith, 16 id., 332; Cook v. Tullis, 18 id., 332; Jeffery v. Boatman’s Svgs. Bk., id.. 375; Sawyer v. Turpin, 91 U. S., 121.)</p>

<p>The property of every corporation is to he regarded as a trust fund for the payment of its debts; the creditors of the corporation-have a lien thereon and may follow it into the hands of the directors Or stockholders.</p> <p>Where, therefore, the property of a corporation has been divided among its stockholders, a judgment creditor, after return of an execution against the corporation unsatisfied, may maintain an action, in the nature of a- creditor’s bill against a stockholder, to reach whatever was' so received by him.</p> <p>In such an action the judgment against the corporation is at least prima, facie evidence of the liability of the corporation.</p> <p>Miller v. White (30 N. Y., 137); McMahon v. Macy (51 id., 135), distinguished.</p> <p>Certain of the directors and stockholders of the N. J. S. N. Co. entered into an arrangement, that a steamboat and an interest in another belonging to said corporation should be sold at auction, bid off by one of their number for their benefit, and that of other stockholders joining in the arrangement; those who did not participate were to receive their proportionate share of the sum bid. The sale was accordingly made in February, 1864, but the sum bid was not paid, and the boat was, thereafter, run the same as before. In July, 1864, through the negligence of those in charge of the-steamboat, a collision occurred between her and another vessel. In March, 1865, the steamboat was sold, and by an instrument executed in the name of said company by its president transferred to another corporation. Held, that the facts authorized a finding that the sale was not a real one, but that the title remained in said company; and that it was liable for the negligence.</p> <p>After the accident, but before the actual sale of the steamboat, defendant Y. sold his stock, subject to all claims against it, to defendant E. Held, that E. took the stock so purchased subject to its proportionate share of plaintiff's claim and was properly charged therewith.</p>

.Appeal from an order of the General Term of the Supreme-Court, in the-second judicial department, affirming, an, order of Special Term, denying an application for- a writ. of certiorari to review the proceedings of the common coun- • cil of Long Island city, in relation to levying a tax' to pay the annual interest accruing in 1875, upon certain water-bonds of said city.

Co.urt of .Brooklyn, affirming a judgment in favor of plaintiff entered upon the report of a referee. . .Tlijs .action was brought to. recover .'damages for the alleged conversion of certain machinery and fixtures, tools, etc. ... ...The.rcfer.ec found, substantially, the following facts : One John Doherty, being the owner in fee of premises, situate in the city of Brooklyn, on the 1st day of October, 1868, leased the same to Ronald McDonald for a term of ten years, the said…

This action was brought to recover damages for injuries alleged to have been occasioned by defendant’s negligence. In April, 1876, plaintiff was walking upon a cross-walk, crossing Fulton street, in the city of Brodklyn, when- his foot was caught in a switch connecting one of tho rails of defendant's track with that of tho Brooklyn City Railroad Company, and he was thrown down and injured ; the flange of the switch projected some two or three inches above the cross-walk.

<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 verdict.</p> <p>This action was brought to recover for a quantity of hop poles, alleged to have been sold and delivered by plaintiff to defendant, under a contract between the parties.</p> <p>The facts appear sufficiently in the opinion.</p> <p>Mills was defendant’s special agent and defendant is not bound by any of his acts unless strictly within the authority conferred. (Story on Agency, § 133, sub. 2; Munn v. Pres., etc., 15 J. R., 43; Dunlap’s Palcy on Agency, 201; Rossiter v. Rossiter, 8 Wend., 496; Holtsinger v. Nat. Com. Ex. Bk., 37 How., 203.) Plaintiff ivas bound to examine into the authority conferred and must be presumed to know its nature and extent. (Story on Ag., §§ 127, 133; Stainer v. Tyson, 3 Hill. 279; 16 N. Y., 143; Greenwood v. Spring, 54 Barb., 381.) As plaintiff’s “Exhibit A ” does not purport in its body or in the style of its execution to be defendant’s contract it cannot be held to bo such. (De Witt v. Walton, 5 Seld., 571; Dean v. Roeslee, 1 Hilt., 420; Squier v. Norris, 1 Lans., 286; Peretz v. Stanton, 10 Wend., 271; Baker v. Mech. Ins. Co., 3 id., 49; Minard v. Mead, 7 id., 68; Bradley v. Boston Glass Factory, 16 Pick., 347; Simons v. Heard, 23 id., 130; Packard v. Wyle, 2 Metc., 47; Russell v. Jones, 3 B. & Ald., 47; Tanner v. Christian, 29 Eng. L. & Eq., 103; Cook v. Wilson, 37 id., 361; Parker v. Winslow, 7 El. &, Bl., 942.)</p> <p>Mills was defendant’s general agent for the purchase of hop poles. (1 Pars, on Con. [5th ed.], 40; 2 Kent’s Com. [10th ed.], 857 [m. p.], 620.) The agreement, as made and signed by Mills, was binding on defendant, and would be even if defendant’s name did not appear in it. (Dykers v. Townsend, 24 N. Y., 57; Babcock v. Beman, 1 E. D. S., 593; Briggs v. Partridge 64 N. Y., 357; 1 Pars, on Con. [5th ed.], 51, 52; Moss v. Rossie L. M. Co., 5 Hill, 137; Conro v. Pt. Henry Iron Co., 12 Barb., 27, 53; Rogers v. Kneeland, 10 Wend., 218; 13 id., 114.) In construing the contract it was proper to give greater weight to the written than the printed portions. (Marsh v. Dodge, 66 N. Y., 533; Rogers v. Smith, 47 id., 324; Woodruff v. Comcl. Ins. Co., 2 Hilt., 122; 2 Pars, on Con. [5th ed.], 516.)</p>

<p>Where a complaint is for fraud, the action cannot he maintained, on the ground of mutual mistake.</p> <p>Kemp v. Knickerbocker Ice Co. (69 N. Y., 45), distinguished.</p> <p>Where a party, having sold property in which another was interested, has once reported fully to the latter the amount for which he sold, and, thereafter, is presented with an account by said other party, and is threatened with immediate suit unless it is settled, in which account the amount is stated less than what he received, after a compromise and settlement of the account, he cannot be held liable for fraud, because of an omission to call attention to the error in this item of the account; he is not bound to repeat the information once given, and to insist upon swelling- the account against himself.</p> <p>Where an amount is paid expressly as a compromise of an account, and not because it was conceded to be due, the party receiving the payment cannot set aside and cancel a release given by him, on the ground of fraud, and yet retain the whole consideration therefor; if the release is to be canceled the parties should be put in statu quo as far as possible.</p>

(Reported below, 9 Hun, 146.) An action was brought by said village against the relator, William Dargin, before defendant, to recover a penalty imposed by an ordinance of the trustees of said village. The relator demanded a trial by jury, which was denied. The appellant had jurisdiction both of the subject-matter of the action and the relator’s person and had the absolute right to hear and determine the action and to refuse the relator a trial by jury.

(Reported below, 10 Hun, 18.) This action was brought to enforce a mechanic’s lien, under . the mechanics’ lien law for the counties of Kings and Queens. (Chap. 478, Laws of 1862.) The lien claimed was for the services of plaintiff, as architect in superintending the building, altering and repairing of certain houses upon premises of defendant and under a contract with him.1 The facts appear sufficiently in the opinion.

This action was brought to recover rent due under a lease from plaintiff to the firm of Bench Bros. & Co. Defendant Hughitt alone answered, denying that he was a member of said firm. The following facts appeared upon the trial: The defendants, Bench and Hogeboom, were co-partners in the business of making wagons and other carnages, at Auburn, for many year prior to the 1st of October, 1870.

<p>A municipal corporation has the right to fill up and grade its streets ; and, although because of such an improvement upon a street, the surface water of adjoining lots may he prevented from flowing upon the street, or the surface water may he thrown therefrom upon said lots, and caused to flow upon them in a different way and in larger quantities than before, no liability arises against the corporation.</p> <p>Such a corporation may exercise its discretion, subject to no review or question, in any court, whether, at any particular place, it will build a sewer, and what water it will conduct into an existing sewer, and what drains it will connect therewith.</p> <p>Plaintiff’s complaint alleged, in substance, that he owned a lot west of Eleventh avenue, in New York city; that defendant caused the grade of said avenue to he raised twenty feet, and neglected to provide means of carrying off the rain water, which fell upon said avenue, or to prevent it draining on adjoining lands, as was usually done, by reason whereof the rain water flowed from said avenue upon plaintiff’s lot, doing damage, etc. Held-, that the complaint did not state a cause of action; that defendant did not owe plaintiff any duty to protect his premises from the flow of rain water from the avenue.'</p>

Appeals from judgments of the General Term of the Supreme Court, in the first judicial department, affirming proceedings of defendant in assessing personal property of the relators. The facts appear sufficiently in the opinion. Unearned premiums of the relator were not taxable. (Gen’l Ins.

(Reported below, 15 Hun, 256.) The indictment charged, and the evidence on the part of the prosecution tended to show, that in the year 1871 defendant in error was married to one Sallie West, in the State of Ohio, and that in November, 1874, while she was still living, ho married one Eunice Nelson, at Auburn, in this State.

Plaintiff in error was jointly indicted with one Charles Beckwith, who pleaded guilty. After verdict, and before sentence, plaintiff in error asked that judgment be arrested, upon the ground that George S. Sands, one of the justices of the sessions and members of the court by' which plaintiff in error was tried, was counsel for Beckwith and acted as such. The application was founded upon affidavits; it was denied said plaintiff in error.

This action was brought to recover damages for injuries alleged to have been occasioned by defendant’s negligence. The facts appear sufficiently in the opinion. Defendant owed no duty to plaintiff which obliged him to care for and protect him while in the house. (Nicholson v. Erie R. Co., 41 N. Y., 525; Southcote v. Stanley, 1 H. & N., 246; Lester v. Lantz, Sup. Ct. of Buffalo, Oct., 1876; Matze v. N. Y. C. and H. R. R. Co., 1 Hun, 419; Hune v. Smith, 97 Eng. Com.

<p>Where money is loaned for the benefit of a business, and is to be refunded absolutely, without regard to the profits 5 the fact that the lender is to, receive a share of the profits, to apply on the indebtedness, does not make him liable to creditors as a partner; to have that efi'ect, the payment of the advancement must depend upon the profits.</p> <p>Defendant C. advanced to defendant G. money to purchase the stock and fixtures of a business, which G. stated he could pay soon. C. was secured by chattel mortgage upon the property, conditioned that the sum loaned should be paid on demand, and G. agreed to pay over to him one-half of the net receipts of the business. In an action by a, creditor of G., who sought to charge C. as a partner, held, that C. could not be held liable; that the legal presumption was, that the share’ of the receipts so paid over was to be applied in payment of the loan.</p> <p>Leggett v. Hyde (58 N. Y., 272), distinguished. °</p> <p>The testimony of O. and G., as to the arrangement, was conflicting. An attorney, who drew up the chattel mortgage, also drew up papers in the form of an agreement between the parties, which, as he and C. tes- ■ tified, embodied the conversations between them, This paper-was not signed. Held, that the paper was properly received in evidence as part of the res gestee, and as showing how the parties, at the time, understood the arrangement.</p>

This action was brought upon an alleged judgment of the Supreme Judicial Court of the State of Maine. The defendant Weld alone appeared and defended. A paper, purporting to be a copy of the record , of the judgment, was offered in evidence on the trial; it was objected to by defendants’ counsel, upon the ground, among others, that it was not properly exemplified, as required by the act of Congress, in that there was no certificate of the chief justice.

<p>Under the Code of Civil Procedure (New Code, § 1300), a notice of appeal to this court may be served before any undertaking has been executed, and the undertaking may be given at any time before the expiration of the time for appealing (t)1334); but the notice does not become effectual for any purpose until the undertaking has been given (§ 1326).</p> <p>A regular notice Of appeal had been served herein, and an undertaking-given which was not in compliance with the statute, and so was a nullity, a return -was made and the canse put upon the calendar. The appellant moved to strike the cause from the calendar; the respondent moved to dismiss the appeal. Held, that the case must be treated as if only a notice of appeal had been served; that, as this was regular, it could not be set aside, and as there was no undertaking there was no appeal to dismisd, no return could properly be made, and the cause was not properly upon the calendar; appellant’s motion, therefore, granted, and respondent’s denied.</p>

(Reported below, 12 Hun, 317.) This action was for an alleged trespass. The answer alleged that the locus in quo was one of the public streets of the city of Troy, and that the acts complained of were lawfully done by the city authorities in the maintenance and control of said street.

<p>Defendant issued a policy of insurance upon the life of M., plaintiif’s intestate, the premium to be paid quarterly; the policy became forfeited by reason of default in a payment falling due February 28, 1874. On the .29tli May, 1874, defendant wrote to M., that if he would send a certificate, from a physician named, of his good health, and a remittance for premium due May 28th, with that of February, it would reinstate the policy. M., thereupon, procured a certificate of the physician, which he sent to defendant, with the premiums, June 6, 1874, in a letter, stating that the certificate was as to his present state of health. Defendant returned the money and certificate, with a statement that they were returned upon the ground that the time during which he was allowed the privilege of reviving his policy expired May 28th. In an action upon the policy, held, that defendant had the right to waive the forfeiture, and M. having taken the action prescribed by it to revive the policy, it was bound, and the policy became again in force; that M. had a reasonable time in which to accept and comply with defendant’s proposition ; that he took no unreasonable túne; and that the reason given by defendant for refusal to accept was not good.</p> <p>The certificate was rejected by defendant’s medical board; it was not given in evidence, and the reason for its rejection did not appear. Held, that if it could be inferred that the rejection was because of lack of sufficiency of the certificate, it was not permissible in this case, as defendant did not take that ground, but put its refusal to accept upon another and entirely different one; but that the inference from the circumstances was that the certificate was sufficient; that if it should be assumed that the certificate was to be satisfactory to defendant, the objection would not avail, as the return was not put upon that ground; and, if taken, it was for defendant to show that it had reasonable grounds therefor.</p> <p>The court found that M. did not make tender of premiums, subsequently accruing upon the policy, in consequence of defendant’s refusal to receive the premium so tendered; there was no express testimony" as to this. Held, that it was a legitimate inference ; and that M. was not required to make further tender.</p> <p>Day v. C. G. Life Ins. Co. (7 Cent. Law Jour., 482), distinguished.</p> <p>Also, held, that M. was not bound, at once on the rejection, to bring an action in equity to have the policy adjudged to be alive.</p>

(Reported below, 13 Hun, 541.) The nature of the action and the facts are set forth sufficiently in the opinion. The proper measure of damages was the market value of the goods when the alleged neglect of defendant was charged and interest.

This action was brought to recover damages for injuries alleged to have been sustained by plaintiff through defendant’s negligence. Plaintiff, a young man, seventeen years of ago, was in the employ of defendant, in 1870, as a brakeman. On April 20, 1870, he was acting as brakeman upon a freight train, consisting of thirty cars, running from West Albany to Syracuse.

(Reported below, 15 Hun, 450.) The question submitted was as to whether, under the will of Clark Durant, defendant’s testator, who died in February, 1873, a legacy vested in Oliver Blush, plaintiffs intestate, upon the death of said testator. The clause of the will in question is as follows : “ Thirtieth.

The action was brought to recover one-half of the value of a party wall erected by the plaintiff upon premises in the city of New York. The complaint states that the plaintiff was the owner of a certain lot of land, and John- McMillan in his life-time the owner of an adjoining lot. He died, leaving a widow, Margaret McMillan and two children, John and Elizabeth, who as his heirs-at-law, became seized of said lot.

<p>Appeal from judgment of the General Term of the Superior Court, of the city of Hew York, affirming a judgment in favor of defendant, entered upon a verdict.</p> <p>This action was brought to recover the contract price for á quantity of sulphuric acid or oil of vitriol, alleged to have been sold and delivered by plaintiffto defendant. The answer, among other things, set up as a counter-claim, and defendant proved that the acid in question was delivered under the following contract executed by the parties.</p> <p>11 April 25, 1873.</p> <p>“ The Highlands Chemical and Mining Company agrees-to supply Mr. John Matthews with oil of vitriol, 66°, for one year from date, at one and three-quarters (1|) cents per pound. Totol amount to be called' for during that time to be not more than ten thousand (10,000) or less than seven thousand (7,000) carboys. The Highlands Chemical and Mining Company agrees to deliver said acid where Mr. J. Matthews shall desire, within New York city limits, in lots of not less than ten (10) carboys. Mr. John Matthews agrees to pay for the above acid as follows : The Highlands Chemical and Mining Company to render a statement of account for acid delivered during each month the first of that succeeding, which will be settled on or about the fifteenth, either by cash or a thirty day note, as Mr. Matthews may elect. Carboys to bo charged at two dollars each, and kept on open account until the number of those unroturnod shall exceed five hundred (500), when the balance so outstanding shall be paid at the settlement next ensuing, in the same manner as for the acid. Mr. Matthews further agrees, in accordance with a conversation • between Mr. Willett and himself, March 7, 1873, to pay the difference between the amount of bills of acid delivered since that date calculated at last year’s contract rate, and the present year’s contract rate, the difference to become due at the settlement next ensuing, and in the same manner as of the acid. This contract will terminate April 25, 1874, without reference to the number of carboys delivered.”</p> <p>Defendant, before the expiration of the year, required plaintiff to deliver the full amount, 10,000 carboys; there remained undelivered at the expiration thereof about 2,700.</p> <p>The court held that defendant was entitled, as a counterclaim, to the difference between the market price and the contract price of the quantity undelivered, which difference was fixed by the court at two and one-half cents per pound, and directed the jury to render a verdict for defendant for the difference between the contract price of the acid delivered and unpaid for, and defendant’s damages so ascertained, to which plaintiff’s counsel duly excepted; a verdict was rendered accordingly.</p> <p>Further facts appear in the opinion.</p> <p>It is competent for parties to a written contract to supply by parol an omission as to time and maimer of performance. (Davis v. Talcot, 14 Barb., 611, 621-622; Franchot v. Leach, 5 Cow., 506; Esmond v. Van Benschoten, 12 Barb., 366.) If the rate or quantity had been definitely specified it would be competent to vary it by a subsequent parol agreement. (Clark v. Dales, 20 Barb., 42, 64; Flynn v. McKeon, 6 Duer, 203, 206; Bishop v. Jackson, 6 Robt., 287; Blanchard v. Trim, 38 N. Y., 227; Plevins v. Downing, 16 Moak Eng., 509; 1 C. P. Div., 220.) Stipulations and agreements subsequent to the execution of a contract are not within the rule by which parol evidence is excluded. (Chitty on Contracts [11th ed.], 154; 2 Cow. & H., note n, 985, 1477; Bailey v. Johnson, 9 Cow., 115, 118; Erwin v. Sanders, 1 id., 250; Spangler v. Springer, 22 Penn. St., 454; Cummings v. Arnold, 3 Met., 486, 491; Stern v. Hall, 9 Cush., 31.) Ho new consideration is necessary in such a case. (Evans v. Thompson, 5 East, 189, 193; Van Buskirk v. Stow, 42 Barb., 16; Clark v. Dales, 20 id., 64.) The agreement of June may be considered as a waiver by defendant of performance beyond fifty carboys a day, which it was competent to waive and prove by parol. (4 Barb., 614; 9 Pick., 298; 65 N. Y. 203; Fleming v. Gilbert, 3 J. R., 528, 531; Young v. Hunter, 6 N. Y., 207; Wood v. Perry, 1 Barb., 114; Smith v. Gugerty, 4 id., 614; Munroe v. Perkins, 9 Pick., 298; Pechner v. Phoe. Ins. Co., 65 N. Y., 203; Hadden v. Dimick, 13 Abb. [N. S.], 135.) If a variation or departure from the exact contract was caused by defendant, the performance of the contract as so varied was sufficient. (Leslie v. Knick. L. Ins. Co., 63 N. Y., 227; Stewart v. Keteltas, 36 id., 388; Higgins v. Solomon, 2 Hall, 482; Farnham v. Ross, 2 id., 167; Borden v. Borden, 5 Mass., 67; Cort v. Ambergate & R., 17 Q. B., 127; S. C., 6 Eng. L. & Eq., 230; Holme v. Guppy, 3 M. & W., 387; Thornhill v. Neats, 8 C. B. [N. S.], 831.) If the plaintiff had the right to tender acid up to 7,000 carboys, defendant’s refusal to receive was a breach of contract which barred his recovery for a subsequent breach on plaintiff’s part. (Cort v. Ambergate, etc., R. Co., 17 Q. B. 126; Eng. L. & Eq., 230; Jones v. Barkley, Douglass, 694; 1 Ferm. R., 545, 638.) The refusal estopped him from the demand he subsequently made. (Fleming v. Gilbert, 3 J. R., 521; Mayor v. Butler, 1 Barb., 338; Carman v. Pults, 21 N. Y., 549; Moses v. Bierling, 31 id., 462.</p> <p>There was no consideration sufficient to support any such modification of the contract as plaintiff claimed had been made. (Fulton v. Matthews, 15 J. R., 433; Bailey v. Johnson, 9 Cow. 115; Miller v. Holbrook, 1 Wend., 317; Patchin v. Pierce, 12 id., 61; Kellogg v. Olmstead, 28 Barb. 96; Van Allen v. Jones, 10 Bos., 369; Stryker v. Vanderbilt, 27 N. J. L., 68; McCann v. Lewis, 69 Cal., 296; Greenl. on Ev., § 303.) As it did not appear that plaintiff acted upon the notice not to deliver, which it claimed had been given, defendant was not estopped thereby. • (Lawrence v. Brown, 5 N. Y., 394; Chautauqua Co. R. K. v. White, 6 id., 236; Ackley v. Dygert, 33 Barb., 176; Catlin v. Grote, 4 E. D. Smith, 296; Todd v. Keer, 42 Barb., 317.)</p>

<p>Appeal from judgment of the General Term of the Court of Common Pleas, iu and for the city and county of New York, affirming- a judgment in favor of defendant, entered upon an order sustaining a demurrer to plaintiff Is complaint.</p> <p>The complaint alleged, in substance, that plaintiff, under and by virtue of authority conferred by statute, was employed by the new county court house commissioners as their clerk or secretary, and his compensation fixed at three thousand dollars ($3,000) per annum , that he performed all the duties of his office up to the first day of May, 1873 ; that from the first day of June, 1872, to the first day of May, 1873, he has not been paid; “that the said county court house commissioners have audited and allowed the claim of plaintiff, and have certified the same to the comptroller of the city of New York, and have made requisitions on said comptroller to raise and place to their credit an amount of money, more than sufficient to pay, and out of said sum to pay this plaintiff, but that said comptroller has refused and neglected so to do; that the appropriation authorized by statute, to be raised and expended in the construction of said court house, under the direction of said commissioners, has not been exhausted, but there still remains of such appropriation an amount sufficient to meet and defray all the liabilities and expenses incurred therefor by said commissioners, and sufficient to pay this plaintiff for his said services ; that by the .provision of chapter 304 of the Laws of 1874, known as 1 the consolidation act,’ all the property and funds of the county of New York were vested in the defendants in this action, and said defendants are made liable for any and all charges and liabilities then existing against said county.” And plaintiff demanded judgment for the amount of salary unpaid.</p> <p>The demurrer was upon the ground that the complaint did not state facts constituting a cause of action.</p> <p>The plai ntiff properly brought his action against the city. (Olney v. Wickes, 18 J. R., 122; Walker v. Swartout, 12 id., 444; Macbeth v. Haldiman, 1 T. R., 172; Belknap v. Reinhart, 2 Wend, 376; Rathbon v. Budlong, 15 J. R., 1; Randall v. Van Vechten, 19 id., 60; Nicholls v. Moody, 22 Barb., 611; Hall v. Landerdale, 46 N. Y., 70; Clark v. The Mayor, 3 Barb., 288; Bailey v. The Mayor, 3 Hill, 531; Appleton v. The Water Comm., 2 id., 432; Barnes v. District of Columbia, 1 Otto, 540; Wood v. The Mayor, 7 Hun, 167; Bancker v. The Mayor, 8 id., 409; Deyoe v. Saratoga Springs, 1 id., 341.) No action ‘ was necessary against the commissioners. (New York Bal. Dock Co. v. Mayor, 8 Hun, 247; Hall v. City of Buffalo, 2 Abb. Ct. App. Dec., 301; Parker v. Syracuse, 31 N. Y., 379.) Payment of plaintiff’s claim was authorized out of a particular fund; payment from that fund having been refused, a liability to pay from the general fund arose. (31 Barb., 142; 11 Pai., 596; Baldwin v. Oswego, 1 Abb. Ct. App. Dec., 62, 75; §§ 2, 3 and 4, chap. 304, Laws of 1874.) The allegation in the complaint that there were unexpended funds was unnecessary, and although alleged need not be proved. (Bedell v. Carll, 33 N. Y., 581; Dennis v. Smell, 50 Barb., 95; Van Rensselaer v. Gallup, 5 Den., 454; Williams v. Tilt, 36 N. Y., 323; Van Nest v. Talmage, 17 Abb., 99, 105; Van Demark v. Van Demark, 13 How., 372; Sands v. St. John, 36 Barb., 628; Moak’s Van Sant., 254, 255*; 1 E. D. Smith, 631; 13 How., 102, 372; 17 Barb., 143.) As against the plaintiff, the defendants have no right to retain the money earned by him. (Dock Co. v. The Mayor, 8 Hun, 247; Cunsidere v. Beers, 1 Abb. Ct. Dec., 333; Chicago, etc., v. Moffitt, 75 Ill., 524; Thompson v. Abbott, 61 Mo., 176.)</p> <p>Plaintiff was not entitled to recover of defendant in this action. (Laws 1870, chap. 382, § 11; Laws 1871, chap. 583, § 8; People ex rel. Purser v. Green, 2 Thomp. & Cook Sup. Ct. R., 108; People v. Green, id., 90; Callahan v. Mayor, 6 Daly, 230; Walling v. The Mayor, 2 Hun, 263; S. C., 62 N. Y., 160.) The city was only liable to judgment if payment upon approved vouchers has been refused. (Wood v. Mayor, 7 Hun, 164.)</p>

The action was upon a promissory note indorsed by said defendant, Spencer. The defenses set forth in the answer so far as material appear in the opinion.

The case upon a former appeal is reported in 71 N. Y., 74. The nature of the action and the facts are set forth sufficiently in the opinion. The referee erred in finding that there was no understanding between the parties that the services should off-set each other. (Young v. Hunt, 6 W. Dig., 180.) The performance of valuable services by one party for and at the request of another raises an implied promise to pay for them.

(Reported below, 12 Hun, 413.) The facts appear sufficiently in the opinion. The appointment of the relator was valid. (Atchley’s Case, 4 Abb., 35.) A mandamus will not lie in this case. (People ex rel. Perry v. Thompson, 25 Barb., 73; People ex rel. Mygatt v. Suprs. of Chenango Co., 11 N. Y., 563, 568; People ex rel. Green v. Wood, 35 Barb., 653, 656.)

<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 defendants, entered upon order dismissing plaintiff's complaint on trial.</p> <p>This action was brought upon an undertaking given on appeal.</p> <p>The service of copy order of affirmance was a substantial compliance with the pro-</p> <p>visions of section 348 of the Old Code. (Chatham v. Lewis, 2 J. R., 104; Bk of Utica v. Kirby, 7 Cow., 148; Tyler v. Simmons, 6 Paige, 127, 132.) The court erred in ruling out the evidence offered to prove proceedings by the defendant in the City Court Case subsequent to the entry of judgment of affirmance therein. (Hill v. Burke, 62 N. Y., 111; Coleman v. Bean, 32 How. Pr., 370; People v. Albright, 14 Abb. Pr. 305, 309; Harrison v. Wilkins, 69 N. Y., 412; Smith v. Falconor, 11 Hun, 481.) Service of the copy order was notice of the order entered. (Rogers v. Rogers, 2 Paige, 458, 464; Fire Dept. v. Buffum, 2 E. D. Smith, 511; Dwarris on Stat., 718; Tonnele v. Hall, 4 Comst., 140.) The failure to allege proper notice in the complaint was an objection which, if not taken by demurrer, could be obviated by proof showing proper notice. (Lounsbury v. Purdy, 18 N. Y., 515, 521; Bates v. Graham, 11 id., 237, 240; Haddow v. Lundy, 59 id., 320, 328; Pratt v. H. R. R. Co., 21 id., 313; White v. Spencer, 14 id., 297; Sinesen v. Cowan, 56 Barb., 395.) The defendants cannot plead as a defense that Lewis Beach was not served with proper notice of entry of judgment, because when called upon to pay the amount due upon the undertaking; they based their refusal upon defenses that Lewis Beach claimed to have as principal. (Taylor v. Spader, 48 N. Y., 664; Cannan v. Pultz, 21 id., 547; Gould v. Banks, 8 Wend., 562; Stoke v. Pecknagle, 6 J. & S., 368.)</p> <p>Notice of entry of judgment or. affirmance was essential, and should have been alleged in the complaint and proved. (Old Code, § 348; Graham v. Scripture, 26 How., 507; Porter v. Kingsbury, 5 Hun, 597; affirmed by Court of Appeals, 5 Weekly Dig., 161; Valton v. Nat. Loan Soc., 19 How. Pr., 515.) There was no waiver of notice on the part of the defendants. (Old Code, § 148; Selover v. Coe, 63 N. Y., 442; Wood v. Fisk, 63 id., 250, 251; Hatch v. Elkins, 65 id., 496; Rankin v. Pine, 4 Abb., 309; Valton v. Nat. Loan Soc., 19 How., 515; York v. Peck, 17 id., 192; Starrin v. Jones, 13 How., 423.)</p>

The nature of the action and the facts are set forth sufficiently in the opinion. Any illegal evidence tending to excite the passions, arouse the prejudices, awaken the sympathies, or warp or influence the judgment of the jurors, cannot be considered harmless.

<p>Under the provision of the New York charter of 1870 (§ 20, chap. 137, Laws of 1870), malting it the duty of the clerks of the respective boards of the common council to publish all resolutions and ordinances, and prohibiting the passage, by either board, of a resolution or ordinance contemplating any specific improvement until the same has been published three days, and under the provision of the act of that year, making further provision for the government of said city (§ 1, chap. 383, Laws of 1870), which declares that the city advertising shall be done in newspapers designated by the mayor and comptroller, the clerk had no authority to publish, in any other than the designated papers, although no designation had been made; and a publication, according to the statute, was a condition precedent to any right of the common council to act.</p> <p>Accordingly, held, where it appeared that no legal designation of papers had been made, that a resolution for a local improvement, passed by the common council, was unauthorized.</p> <p>In re Folsom (56 N. Y., 60), distinguished, and the authorities upon the subject of city advertising explained.</p> <p>Also, held, that the irregularity was not cured and a contract for the work validated, by a certificate under the act of 1872 that no fraud has been perpetrated in relation to the contract (chap. 580, Laws of 1872), where the work was “ repaving,” and so within the exception in said act. (§ 7.)</p> <p>A “street” includes sidewalks and gutters, and “paving” includes “ flagging.” The work, therefore, of setting curb and gutter stones, and flagging the sidewalk of a street, which has once been done, is included in the phrase, “repaving any street,” in said exception; it was intended to embrace the whole street and every kind of paving.</p>

The nature of the action and the facts are set forth sufficiently in the opinion. The petition complied with all the requirements of the act of 1871 (chap. 925), and conferred upon the county judge jurisdiction to appoint a time and place to take proof of the allegations of the petition.

Chetwood, referee, on partition sale herein. (Reported below, 14 Hun, 25.) The referee was allowed, by the order apjjealed from, commissions, at the rate allowed to executors, on the purchase price, as provided by section 4 of the act chapter 569, Laws of 1869, and also the'fees allowed by section 2 of said act to the sheriff on foreclosure sales.

<p>Where, after the filing of a notice of lis pendens in accordance with section 132 of the Code of Procedure, and service of summons upon one or more of the defendants in an action for the foreclosure of a mortgage, a judgment is perfected and docketed against the owner of the equity of redemption, the judgment creditor is bound by the judgment in the foreclosure suit, the same as if he were a party thereto; and this, although, at the time of the entry of his judgment, said owner had not been served with summons in the foreclosure suit. The judgment creditor is a subsequent incumbrancer within the meaning of said section.</p> <p>Rogers v. Bonner (45 N. Y., 379), distinguished.</p>

Upon decision of the court, on trial of the action 'at Special Term, judgment was perfected March 14, 1878, in favor of defendant dismissing plaintiff’s complaint, with costs. Plaintiff served notice of appeal therefrom April 6, 1878, and on April 23, 1878, after service of notice of the motion for a reference, duly executed, filed and ■ served the proper undertaking required to perfect the appeal.

<p>Where, upon the maturity of a promissory note given for a usurious loan, for the purpose of an extension, the borrower delivers to the lender a new note, by its terms made payable to a third person, which note is transferred by the lender to said third person, it is tainted with the usury, and is void in the hands of the payee, although he received the same in good faith and without knowledge of the usury.</p> <p>The new note being taken by the usurer is equally void, as if it had been taken in his own name ; and the maker is not estopped by the fact that the promise is in form made direct to the holder.</p> <p>It seems, that if the note had been taken, under the same circumstances of innocence, directly from the maker by the payee, in pursuance of an agreement to take it in discharge of a debt due to him from the lender, the maker would be estopped, and the payee could recover upon the note.</p> <p>Where, at the time of the execution of a promissory note, in the usual form, by a married woman, she executes another paper appended thereto, declaring her intent to charge her separate estate with the payment of the note, the two instruments are to be construed as one, and the note may be enforced against her.</p> <p>Sherwood v. Archer (10 Hun, 73).</p>

(Reported below, 16 Hun, 196.) The board of assessors valued the stock of the relator, the nominal amount of which was $1,000,000, at eighty-one per cent thereof. The surplus profits were valued at $950,000, and after deductions for real estate, etc., a balance was found of $852,600, which was the amount assessed. The further facts appear in the opinion. The assessors were not justified in assessing the certificates, either directly or indirectly, as surplus profits.

(Reported below, 13 Hun, 332.) The complaint in this action alleged, in substance, that defendant entered into a contract with plaintiff to carry and safely deliver 1,000 tons of freight from New York to Liverpool, at 27s. Gd., sterling, per ton. That plaintiff contracted with other parties to ship and deliver said freight, and the same was delivered to defendant, and was by it transported to and delivered to the consignees at Liverpool.

(Reported below, 11 Hun, 530.) The following facts appeared upon the motion : On October 26, 1876, plaintiffs commenced an action against defendant upon two promissory notes. On November first, they commenced another action. Between November third and November ninth, four other actions were commenced by other and different plaintiffs against defendant.

The action ivas brought to recover damages for alleged fraud. The facts appear sufficiently in the opinion. Plaintiff had a cause of action, resulting from fraud and false representations, and was entitled to damages, independent of the question whether she had rescinded the contract or not.

(Reported below, 14 Hun, 521.) The pe:jury charged was in swearing to an affidavit attached to a statement made, as required by law, by the accused, as president of the American Popular Life Insurance Company, for the year 1876, and deposited in the office of the superintendent of the insurance department.

<p>Error to the General Term of the Supreme Court, in the first judicial department, to review judgment affirming a judgment of the Court of Oyer and Terminer, in and for the city and county of New York, entered upon a verdict convicting the plaintiff in error of the crime of perjury. (Reported below, 14 Hun, 503.)</p> <p>The perjury alleged in the indictment was in swearing to an affidavit attached to a statement, made, as required by law, by plaintiff in error, as president of the Security Life and Annuity Company, for the year 1875. The affidavit purported to have been sworn to before Moses B. McCIay, notary public.</p> <p>The further facts, pertinent to the question discussed, appear sufficiently in the opinion.</p> <p>To sustain a conviction, it was necessary to show that the oath had been legally administered and taken in duo form of law. (People v. Tuttle, 36 N. Y., 431; State v. Morris, 9 N. H., 96; Dodge v. State, 4 Zab., 455; 2 R. S., 681, § 1.) To sustain a conviction, the evidence should not only be consistent with the prisoner’s guilt, but' inconsistent with any other rational conclusion. (Stevens v. People, 4 Park., 396; 10 N. Y., 549; People v. Bennett, 49 id.. 137; U. S. v. Douglass, 2 Blatch., 207; People v. Murray, 41 Cal., 66; Algheri v. State, 25 Miss., 548; 1 Starkie on Ev., 510.)</p> <p>The objection that the indictment did not sufficiently charge the oath to have been administered in due form of law was not well taken. (3 R. S. [Bank’s 6th ed.], 1022; Mason v. People, 26 N. Y., 200; People v. Powers, 2 Seld., 50; People v. Phelps, 5 Wend., 9; People v. Rynders, 12 id., 425; Charles v. People, 1 N. Y., 180; Fleming v. People, 27 id., 329; Tuttle v. People, 36 id., 431; Sanchez v. People, 22 id., 150; Kennedy v. People, 39 id., 251; Tomlinson v. People, 5 Park. 313; People v. Taylor 3 Den., 91.)</p>

(Reported below, 11 Hun, 328.) The nature of the action and the facts are set forth sufficiently in the opinion. This action was not barred by those brought by the former receiver ; the parties were not the same. (Bostwick v. Menck, 40 N. Y., 383-389; Graff v. Bonnett, 25 How.

<p>Appeal from j udgment of the General Term of the Supreme Court, in the third judicial department, affirming a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term. (Reported below, 11 Hun, 533.)</p> <p>This action ivas brought by plaintiffs, as administrators of the estate of Samuel Daily, to foreclose a mortgage executed by defendant Cordelia Wright, then Cordelia Daily, to said Samuel Daily.</p> <p>The facts appear sufficiently in the opinion.</p> <p>The husband and wife, to Avhom the farm Avas conveyed, held it as tenants in common. (R. S. [6th ed., Banks], 1104, § 442; 3 id., 160; Sims v. Rickets, 9 Am. R., 679; 35 Ind., 181; Kaufman v. Whitney, 50 Miss., 103; Rowland v. Palmer, 50 Ala., 182; Monroe v. May, 9 Kan., 466; Cashman v. Henry, 7 N. Y. Weekly Dig., No. 15.) The deed from the husband to his wife was based upon a sufficient consideration, and should be upheld in equity. (Sheppard v. Sheppard, 7 J. Ch., 56; 10 Ves., 146, 149; Hunt v. Johnson, 44 N. Y., 27; Sims v. Rickets, 9 Am. R., 679, 689; Tennison v. Tennison, 46 Mo., 77.) This was so, even if they held the land as tenants of the entirety. (2 Kent’s Com., 133; 1 Preston on Abst. of Title, 334, 335; Jackson v. McConnell, 19 Wend., 162; Bk. of Rochester v. Gregory, 49 Barb., 162; Beach v. Hollister, 3 Hun, 521; Lawrence v. Bayard, 1 Paige, 70; Sheridan v. House, 4 Keyes, 589; Sheldon v. Clancy, 61 Barb., 475; Jaques v. M. E. Church, 17 J. R, 548; Clancy on Married Women, 355, 358; Savage v. O’Neil, 44 N. Y., 298.) A married woman’s conveyance is valid, without an acknowledgment or a private examination. (Cramer v. Comstock, 11 How., 486; Andrews v. Shaffer, 12 id., 441; Wiles v. Peck, 26 N. Y., 42, 47.)</p> <p>The husband and wife became seized under the deed as tenants of the entirety, and took as one person in law, and the deed from the husband to the wife, and the mortgage from her back to him were void. (1 Blackstone Com. [Cooley], book 2, p. 182; 5 Term R., 654; Doe v. Parrot, 2 Vern. [Chy.]: 120, Greeneley's Case, 4 Coke’s Rep., 284; Green v. King, 2 Black. Rep., 1211; Alton Wood’s Case, 1 Coke’s Rep., 76, note [E. 2], and cases cited; 2 Kent’s Com. [10th ed.], 118, 119; 2 Blk. Com., 183; Co. Litt. 137; 2 Vern., 120; Jackson v. Stevens, 16 J. R, 110, 115; Rogers v. Benson, 3 J. Chy., 431, 437; Barber v. Harris, 15 Wend., 615, 617; Jackson v. McConnell, 19 id., 175, 177; Doe v. Howland, 8 Cow., 283; Towey v. Towey, 14 N. Y., 430; Goelet v. Gori, 31 Barb., 314; 2 Kent’s Com. [3d ed.], 132, 133; 1 Preston on Abst. Title, 334, 335, 536; F. and M. Nat Bk. Rochester v. Gregory, 14 Barb., 162; F. and M. Nat. Bk. v. Gregory, 49 id., 155; Freeman v. Barber, 3 Sup. Ct. [T. & C.], 575; Dunn v. Hornbeck, 7 Hun, 629; Beach v. Hollister, 5 Sup. Ct. [T. & C.], 571; Thornton v. Thornton, 3 Randolph, 183; Elliott v. Nichols, 8 Am. L. Reg. [N. S.], 433, 436; French v. Mehan, 56 Penn. St., 289; Diver v. Diver, 56 id., 106; McDuff v. Beauchamp, 50 Miss., 531; Fisher v. Provin, 25 Mich., 350; Ketchum v. Wadsworth, 5 Wis., 102; Shaw v. Hearsey, 5 Mass., 521; Wales v. Coffin, 13 id., 215; Davis v. Clark, 26 Ind., 428; Ames v. Norman, 4 Sneeds [Tenn.], 683; Cockran v. Kerney, 9 Ky.; Washburn v. Burns, 34 N. J., 18.) The statutory enactments in this State, affecting the property of married women, have no relation to an estate like the one at bar, and it remains as it existed before, unaffected by them. (Laws of 1848, chap. 200; Laws of 1862, chap. 172; Laws of 1849, chap. 375; White v. Wager, 25 N. Y., 328; Winans v. Peebles, 32 id., 423.) The burden was upon the husband of showing that the mortgage was executed without fear or compulsion by him. (Richardson v. Hittle, 31 Ind., 121; Whitbeck v. Whitbeck, 25 Mich., 439; Ferris v. Brush, 1 Edw. Chy., 572; In the Matter of Finch, 1 Clark’s Chy., 538; Graham v. Van Wyck, 7 How. Pr., 373; Fry v. Fry, 7 Paige, 461; Boyd v. De La Montagnie, 7 N. Y. Weekly Digest, p. 134.)</p>

(Reported below, 14 Hun, 577.) This action was brought by plaintiff, as receiver of the Bond Street Savings Bank, to foreclose a mortgage executed by defendant Jones. The facts appear sufficiently in the opinion. The bond is the contract here, and as its terms were not altered, and no injury done to defendant by any act of the obligee in changing the form of the security, he remained liable for any deficiency.

The nature of the action and the facts are set forth sufficiently in the opinion. The burden was upon plaintiffs to show they were bona fide holders of the note in suit. (King v. Fitch, 1 Keyes, 447; De Joe v. Brandt, 53 N. Y., 462; Weaver v. Barden, 49 id., 298; Barnard v. Campbell, 55 id., 456; 58 id., 73; Pringle v. Phillips, 5 Sandf., 157; Danforth v. Dart, 4 Duer, 101; 58 N. Y., 76; 55 id., 493.) . The plaintiffs arc not innocent holders for value.

The averments in the complaint in this action were as follows : “ The complaint of the plaintiffs in this action avers that at the city of Hew York, at divers times between the 22d of October and the 30th of December, 1874, the defendants in this action in concert did, by connivance, conspiracy and combination, cheat and defraud the plaintiffs out of eight bales of Havana tobacco, in value in the aggregate the sum of $773.51, and at the time of the said cheating and…

The facts appear sufficiently in the opinion. The confession of the prisoner was properly received in evidence. (2 Russ., 844; 1 Whart. Cr. L., §.692 ; Wentz v. People, 37 N. Y., 303; Jefferds v. People, 5 Park., 522; Comm. v. Knapp, 10 Pick., 477.) The question to the prisoner, on cross-examination, as to whether he had ever been arrested on a charge of bigamy, was admissible.

(Reported below, 14 Hun,-371.) The alleged contempt was in disobeying a peremptory-writ of mandamus. The writ was directed to the appellants, The Rochester and State Line Railroad Company, and the members of its board of directors.

The facts appear sufficiently in the opinions. The lease for twelve years was void. (Const., art. 1, § 14; Hart v. Hart, 22 Barb., 606.) The notice to quit was sufficient, and plaintiff was entitled to possession. (Porter v. Bleiler, 17 Barb., 154; Reeder v. Sayre, 70 N. Y., 184.) The twelve year lease was valid as a covenant or contract between the parties, during the eight years, for a leasing to begin at the expiration of each term.

(Mem. of decision below, 10 Hun, 569.) This action was brought to recover damages to a car load of cabbages, delivered to defendant for transportation, alleged to have been sustained through the negligence of the defendant ■ in not forwarding in due time. The facts appear sufficiently in the opinion. The plaintiff was guilty of negligence in failing to take proper precautions to protect his property.

(Reported below, 11 J. & S. 217.) This action was brought to recover the amount of deposits made by plaintiff in defendant’s bank. The facts appear sufficiently in the opinion. Evidence that the surrogate did not, in person, pass upon the application for letters, should have been excluded. (Savacool v. Boughton, 5 Wend., 170; Stanton v. Schell, 3 Sandf., 323; Chegaray v. Jenkins, 1 Seld., 376.) The letters were, as to the defendant, conclusive. (63 N. Y., 469, 471; 1 Ph.

A copy of the judgment, with notice of entry thereof, signed by defendant’s attorney, but without the addition of his office address, or place of business, was served by mail May 25, 1878. The notice of appeal was served on the clerk July 25th, and on defendant’s attorney July 2G, 1878. The notice of entry of judgment was a nullity; it should have been signed with the name of the attorney and his office address or place of business.

The order appealed from also quashed the writ issued under the Sppcial Term order. (Reported below, 16 Hun, 219.) The defendant Ferris was president of tho village of White Plains, on and prior to April 26, 1878.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, affirming a judgment in favor of plaintiff, entered upon the report of a referee.</p> <p>This action was brought to recover damages for injuries occasioned by driving into an excavation, alleged to have been negligently left open in one of defendant’s streets.</p> <p>The facts appear sufficiently in the opinion.</p> <p>No negligence was proved on the part of defendant. (Sparhawk v. City of Salem, 1 All., 30, 32; Macomber v. City of Taunton, 100 Mass., 255; Randall v. East. R. R. Co., 106 id., 276; Smith v. Mayor, 66 N. Y., 295; City of Buffalo v. Holloway, 3 Seld., 493; Deyo v. N. Y. C. R. R. R., 34 N. Y., 9; Padden v. N. Y. C. R. R., 44 id., 478; 2 Hill on Torts [3d ed.], 387, 388; Hull v. Richmond, 2 Wood & M., 337.) The absence of necessary funds, or the legal means of procuring them, excused defendant from the duty of repairing. (Hines v. City of Lockport, 50 N. Y., 238, 239; Lamont v. Haight, 44 How. Pr., 1.) The power of defendant’s trustees over highways is so restricted that a -very restricted rule of liability should be applied in a case of this kind. Harrington v. Village of Corning, 51 Barb., 396; Huston v. Mayor, 5 Seld., 163; Davenport v. Ruckman, 37 N. Y., 568; Requa v. City of Rochester, 45 id., 129, 133-134; Diveny v. City of Elmira, 51 id., 506, 513; Charter Laws 1864, chap. 139; Hines v. City of Lockport, 60 Barb., 378, 386.) When a charter does not impose a well defined and unrestrained duty, and when the corporation does not have funds, or a certain legal means of obtaining them, it is not liable. (Huston v. Mayor, 5 Seld., 163, 170; Smith v. Wright, 27 Barb., 621, 630; Cole v. Trustees of Medina, 27 Barb., 218; Peck v. Village of Batavia, 22 id., 634; Haskell v. Village of Penn Yan, 5 Lans., 44; Herrington v. Village of Corning, 51 Barb., 396.) The power of assessment and commutation for highway labor in a village charter is not such a means of raising funds as would create a liability. (Hines v. City of Lockport, 50 N. Y., 236; 60 Barb., 378; Hover v. Barkhoof 44 N. Y., 113; Robinson v. Chamberlain, 34 id., 389; Garlinghuce v. Jacobs, 29 id., 297; Lament v. Haight, 44 How. Pr., 1, 5.) Actual notice to a trustee or director of a corporation is not notice to the latter. (Requa v. City of Rochester, 45 N. Y., 129; Nat. Bk. v. Horton, 1 Hill, 572; Bk. U. S. v. Davis, 2 id., 451.) Constructive notice from lapse of time cannot be based on less than two or three weeks. (Mayor v. Sheffield, 4 Wall., 189; Todd v. City of Troy, 61 N. Y., 516; Divney v. City of Elmira, 51 id., 506; Hutson v. Mayor, 5 Seld., 163; Griffin v. Mayor, id., 456 Davenport v. Ruckman, 37 N. Y., 568.).</p> <p>Defendant, having permitted the highway to remain out of repair after actual and constructive notice, was liable for all damages to one lawfully traveling upon it who was free from negligence. (Hickock v. Village of Plattsburgh, 16 N. Y., 161; Wendell v. City of Troy, 4 Keyes, 272; Davenport v. Ruckman, 37 N. Y., 568; Divney v. City of Elmira, 51 id., 506, 542; Hudson v. Mayor, 5 Seld., 163; Storrs v. City of Utica, 3 Smith, 104; Requa v. City of Rochester, 45 N. Y., 129; Masterton v. Village of Mt. Vernon, 58 id., 391; 37 Barb., 292; 44 id., 385; 41 id., 381; 50 id., 358; 3 N. Y., Sup. Ct., 504.) Neglect to keep proper lights and guards, at night, around the excavation was sufficient to charge defendant. (Storrs v. City of Utica, 3 Smith, 104.) It was immaterial whether defendant had money or not, with which to keep the street in repair. (Hickcock v. Plattsburgh, 16 N. Y., 162, 168; 44 id., 117; 34 id., 395; Hyatt v. Trustees of Rondout, 44 Barb., 391.) The corporation, having means to raise money at any time by vote, it could not evade liability by refusal of its corporators to do so. (Laws 1855, pp. 671, 683, §§ 9, 2, 3, 24; Hover v. Barkhoof, 44 N. Y., 113; 34 id., 395.) Plaintiff had a right to assume that at the time of the accident the street was in repair. (Davenport v. Ruckman, 37 N. Y., 568.)</p>

<p>Under the act of 1876 (chap. 49, Laws of 1876), “in relation to the equalization of assessments,” the State assessors are authorized, and it is their duty, upon appeal by a town to determine: 1st. Whether the' town appealing has suffered injustice, as compared with other towns in the county; 2d. Whether such town shall have a deduction from its valuation, and the amount thereof; 3d. Upon what other town or ' tows such deduction shall be placed, and the portion thereof which shall be placed on each. The comparison is not between the town appealing and the residue of the county as an entirety, but between it and the other towns as distinct and separate organizations.</p> <p>For the purpose of performing this duty, it is essential that said assessors shall take into consideration the valuation of all the towns of the county separately, and if they find injustice has been done to the appealing town by an excessive valuation, as compared with some of the towns* they may remedy it by thus placing the excess upon those towns; and this, although othei* towns which have not appealed, have suffered alike injustice: for the purpose of correcting the injustice complained of these towns cannot be regarded.</p> <p>It is no objection to a decision made by said assessors in pursuance of the • statute that it does not purport to be certified to the board of supervisors of the county.</p> <p>Hor is it an available objection, where the decision was forwarded by mail . in due season, that it was not filed with the clerk of said board before! the beginning of the next annual meeting.</p> <p>The State assessors are not required upon such an appeal to take testi- ' mony as to the amount and value of the personal property in the towns; . as a board of supervisors in - making equalization, are confined to the , valuation of real estate, the State assessors h ave no authority beyond this.</p> <p>The legislative intent in passing the act was simply to regulate appeals,. ’ not to enlarge the jurisdiction of the State assessors.</p>

(Reported below, 11 J. & S., 238.) This action was brought to recover an indebtedness of the firm of Strang, Platt & Co., of which firm defendants were, alleget] to be members. Defendant Snyder, who alone appeared and answered, denied that he was a partner. 'On December 31, 1869, written articles of co-partnership were executed by the other defendants, five in number.

(Reported below, 12 Hun, 537.) This action was brought to recover an alleged balance of a deposit account with the defendant. The plaintiffs on December 1st, 1869, drew their-check upon defendant’s bank payable to M. Oppcnheimer & Sons, or order, for the sum of $738.88,. and delivered it to the payees, for their accommodation, and without any restriction as to the manner of its use.

(Reported below, 7 Daly, 379.) This action was brought to recover damages for the alleged conversion of two certificates of stock of a manufacturing corporation, which came into the hands of defendant as assignee in bankruptcy of the' firm of L. Morgan & Son.

(Reported below, 7 Daly, 330.) This action was brought to compel plaintiff to transfer upon its books certain shares of stock to plaintiff1, and to issue a new certificate for the same to her. The original certificate of the stock was issued to Peter B. Cushman, plaintiff's husband; by its terms it was traasferrable only upon the books of the company upon surreiider of the certificate.

This action was brought for and the judgment adjudged a dissolution of a co-partnership between the parties, and for the appointment of a receiver. The facts appear sufficiently in the opinion. This was no case for the appointment of a receiver. (9 How., 69; 7 id., 359; 10 id., 89; 1 Hill, 546; 9 Abb.

<p>Plaintiff, in Hew York, shipped, by defendant, certain goods consigned to V. A. at T., marked “O. 0. D., ¡594.28.” Defendant accepted of the consignee his check, payable to plaintiffs’ order, for the sum stated; this was delivered to and accepted by plaintiffs, who transmitted it for collection; it was returned protested. In an action to recover damages for alleged failure to collect the sum named, held, that the unconditional acceptance of the check by plaintiffs was a waiver of the requirement to collect the money, and a ratification and adoption of plaintiffs’ act in receiving it; and that, therefore, plaintiffs were not entitled to recover; also, that it was immaterial whether or not the drawer had funds in the bank at the time of accepting the check, or whether funds had been withdrawn, intermediate the drawing and acceptance of it; that the plaintiffs, by accepting.,took that risk.</p> <p>Walker v. Walker (5 Heiskells [Tenn.], 425), distinguished.</p>

<p>In an action against a carrier of passengers for loss of baggage, the burden of showing delivery of the baggage is upon defendant; transportation of the baggage to the place of destination is not sufficient to discharge from responsibility.</p> <p>If the passenger does not call for his baggage on arrival, the carrier cannot leave it uncared for, or abandon it; but his strict responsibility as carrier ceases after a reasonable time lias elapsed to enable the owner to claim it, and a modified liability, like that of a warehouseman, supervenes.</p> <p>In an action to recover damages for loss of baggage, plaintiff’s evidence was to the effect that she, with her sister, were passengers on defendant’s road. Upon arrival at her place of destination the checks for their baggage were delivered to the baggage-master for the purpose of getting a valise. They informed him that they desired to leave their trunks there for a week or two; this he advised them they could do, “ by giving him the checks,” and he assured them that the trunks would be “just as safe without the checks as with them.” The checks were thereupon left with him, and when plaintiff called for her trunk it could not be found; it having been delivered by the baggage-master to a stranger. The baggage-master was prohibited by defendant from thus keeping baggage. Held, that it was a question for the jury, whether there was a delivery of the trunk by the defendant to the plaintiff, arid a termination of its responsibility.</p> <p>Matteson v. N. Y. C. and H. R. R. R. Co. (57 N. Y., 552), distinguished.</p>

This action was brought to recover damages for an alleged breach of covenant in an assignment of a j udgment. On the 2d day of September, 1861, the defendant and one Rich, ivho were partners, recovered a judgment against Erastus S. Doran, James E. Doran, Allen H. Gillett and Homer W. Wooster, who were also partners, for damages and costs, $1,038.46.

Tho nature of the action and the facts are set forth sufficiently in the opinion. Plaintiff, not being specially authorized to do so, could not hold or enforce the notes in suit. (2 R. S., tit. 3, chap. 18, pt. 1, § 3; 2 R. S. [Cothran's ed.], 391; Halstead v. The Mayor, 3 Com., 432; Chautauqua Bk. v. Risley, 4 Den., 481; Hodges v. City of Buffalo, 2 id., 111; Utica Ins. Co. v. Scott, 19 J. R., 1; Life and F. Ins. Co. v. Mech.'s F. Ins. Co., 7 Wend.; New Fork Firemen's Ins.

,,The facts alleged in the complaint were as follows : ' “First.—That on or about the 25th day of July, 1872, at the city of New York, James Watson made and delivered to the plaintiff for value his certain draft or order, in the words and figures following : “New York, July 25, 1872. “William Henry Arnoux : “ Dear Sir—Please pay to William T. Tookcr the sum of five hundred and fifty-six (556) dollars, out of the money to be realized from the sale of the houses oil the north…

(Reported below, 13 Hun, 70.) This action was brought to recover damages for an assault alleged to have been committed by one of defendant’s servants, in attempting to eject plaintiff from a car of a tiain upon its road, on which train plaintiff was a passenger. The facts appear sufficiently in the opinion. The porter of the drawing-room car was not defendant’s servant, and for that reason plaintiff should have been nonsuited.

<p>Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, affirming a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term.</p> <p>. This action was brought to restrain an alleged nuisance.</p> <p>The court found, in substance, that the parties were owners of adjoining premises. That the defendant, by the construction upon his premises of a dam across a small stream of water running through the premises of the parties hereto, created a pond of water upon his said premises, about 240 feet from the dwelling-house of the plaintiff; “ that the waters of said pond are stagnant and filled with decomposed and decomposing animal and vegetable matters that from said pond and from the sides thereof as they become bare and exposed to the sun there emanates noxious, offensive and poisonous effluvia, malaria, exhalations and smells which taint, poison and corrupt the atmosphere, and which exhalations, malaria and smells reach the dwelling-house of the plaintiff, rendering the enjoyment of her premises dangerous to life and health ; that by reason of such pond of stagnant water so maintained as aforesaid, and the exhalations, malaria and smells arising therefrom, and from the decomposed animal and vegetable matters thereon, the plaintiff, her husband and children and servants have been made sick from time to time, for several years last past, and by reason whereof the said plaintiff with her family have been compelled on divers occasions to leave her premises and take up her residence elsewhere, at great expense ; that the said pond, so made and maintained as aforesaid, is a special injury to the premises and residence of the plaintiff, not only affecting the health of the plaintiff and her family, but greatly depreciating the value of her said premises, and rendering the occupancy thereof, as aforesaid, as a residence, hazardous to the health and life of the occupants of the same.”</p> <p>Judgment was directed and was entered as follows :</p> <p>“ That the defendant be perpetually enjoined and restrained from making, maintaining, continuing or renewing the said pond by means of a dam or otherwise. It is adjudged that the defendant herein be, and he hereby is, enjoined to remove all obstructions to the running of the water in said stream, so that the water in said stream may run in the same manner as it ran before any dam or obstruction was made or constructed to prevent or obstruct the flowing of the waters of said stream. And it is further adjudged that defendant be, and he hereby is, perpetually enjoined and restrained from making, maintaining, continuing or renewing the said pond by means of a dam or otherwise, or doing any other act or thing whereby the water of said stream will be prevented or obstructed from running and flowing as they were wont to do before any dam was constructed or obstructions made to the flowing of the water of said stream.”</p> <p>Plaintiff having acquiesced in the maintenance of defendant’s pond is barred from asking for equitable relief. (Brown v. Bowen, 30 N. Y., 543; Sprague v. Steere, 1 R. T., 247; Williams v. Earl of Jersey, 1 Cr. & Ph., 91; 2 Eq. Cas. Abr., 522-523; G. W. R'y v. Oxford W. and W. R'y Co., 3 De Gex, M. & G., 355; Story Eq. Jur. [12th ed.], § 959 a; 1 Joyce on Inj., 102.) Plaintiff having treated the pond as a private nuisance and removed all cause for complaint cannot claim equitable relief. (Harrower v. Ritson, 37 Barb., 310; Pierce v. Dart, 7 Cow., 609.) Defendant had the right to erect dams and maintain the water on his own land for reasonable purposes, either for fish ponds, ice, mills, or other lawful purposes. (Wood v. Edes, 2 Allen, 578; Petty v. Lancaster, 13 Metc., 156; Clinton v. Myers, 46 N. Y., 511; Gould v. Boston Co., 13 Gray, 442; Washburne on Real Prop., 337 et seq.)</p> <p>The pond in question was a nuisance, and plaintiff was entitled to a judgment enj oining the continuance of it. (Fish v. Dodge, 4 Den., 311; Lansing v. Smith, 4 Wend., 25; Corning v. Lowerre, 6 Johns. Ch., 439; City of Georgetown v. Alexander Canal Co., 12 Pet., 91; Peels v. Elder, 3 Sandf., 126; Howard v. Lee, 3 id., 281; McKeon v. See, 4 Robt., 449; S. C., 51 N. Y., 300; Francis v. Schollkoff, 53 id., 152; Prime v. Twenty-third Street R. R. Co., 1 Abb. [N. C.], 63; 2 Story Eq. Juris., 238, §§ 925, 927; Williams v. N. Y. C. R. R. Co., 16 N. Y., 97-111; Willard’s Eq. Juris., 391.)</p>

(Reported below, 13 Hun, 191.) The nature of the action and the facts arc set forth sufficiently in the. opinion. A policy of insurance is a contract upon condition, and a breach of the condition will avoid the policy. (Jennings v. Chenango Mut. Ins. Co., 2 Den., 75; Jube v. Brooklyn Fire Ins. Co., 28 Barb., 412; Pindar v. Resolute Fire Ins.

<p>Under the provision of the act of 1864 relating to public instruction (tit. 7, § 75, chap. 555, Laws of 1864), which requires the treasurer of a county to pay to the trustees of a school district, out of any moneys in the county treasury raised for contingent expenses, the amount of taxes upon lands of non-residents returned by said trustees as unpaid, the authority of the county treasurer is limited to the particular fund specified; and if no such fund has been raised, or if it has been exhausted, he has no authority, and consequently no duty is imposed upon him to pay.</p> <p>The trustees of a school district in R. county made return to the county . treasurer (defendant’s predecessor in the office) of such unpaid taxes; they were never presented or reported to the board of supervisors, and no tax was levied specifically to pay them. The claim was presented by the trustees to defendant, and payment demanded; there was no contingent "fund in his hands at that time, and he declined to pay on that ground. Subsequently, moneys belonging to this fund came to his hands, but they were paid out on supervisors warrants. Held, that the trustees were not entitled to a mandamus to compel the payment; that the claim had no preference over other claims payable out of the same fund; and that no duty was imposed on the county treasurer to pay claims, presented before moneys were received by him applicable to their payment, in the order of their presentation.</p>

(Reported below, 15 Hun, 595.). This action was upon a policy of life insurance issued by defendant upon the life of Henry C. Ross, for the benefit of his wife, plaintiff’s intestate. The policy contained conditions avoiding it if the' insured should “ die by his own hand,” or if the statements in the application should be found to be in any respect untrue. The facts appearing on the trial are set forth sufficiently in the opinion.

(Reported below, 16 Hun, 283.) Each lot was assessd at $752.50. The order of Special Term reduced this assessment to $450 per lot; this was changed by the order of General Term to $500 per lot. The petitioner sought to vacate the assessments chiefly upon the ground that the assessment upon each lot exceeded half its value, and so was in violation of section 7, chapter 326, Laws of 1840.

(Reported below, 12 Hun, 283.) This action was brought to determine the conflicting claims of plaintiff and defendant, Cherry, to certain insurance money in the hands of the. other defendants as the personal representatives of John H. White, deceased. The referee found substantially the following facts : Prior to March 2, 1872, one Charles R. Brown was the owner of certain real estate in Saratoga Springs known as the Grand Central Hotel.

<p>Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, reversing a judgment in favor of plaintiff, entered upon the report of a referee, granting a new trial. (Reported below, 13 Hun, 166.)</p> <p>This action was brought upon a guaranty executed by defendant upon the assignment by him of a bond and mortgage, to recover deficiency arising on foreclosure and sale of the mortgaged premises.</p> <p>The facts appear sufficiently in the opinion.</p> <p>Defendant was bound personally by his guaranty. (Ferrin v. Merrick, 41 N. Y., 315; Marvin v. Stone, 2 Cow., 781; Pinny v. Johnson, 8 Wend., 500; 2 Williams on Excc’s, 1610, 1611, 1613; Story on Contracts, § 70; Hall v. Rand, 8 Cow., 560; Curt v. Burlingame, 62 Barb., 351.) Defendant’s acts and dealings with plaintiff amount to an estoppel in pais. (Dugall v. Odell, 3 Hill, 215; Young v. Bushnell, 8 Bow., 1; 2 Hill, 215; 18 N. Y., 392; 4 Barb., 495; 1 Ed. Smith, 756; 7 Barb., 407.) The judgment in the foreclosure suit, which found the whole amount of the mortgage to be due, estops defendant from insisting now that the whole amount of the bond was not due. (Herman on Estoppel, §§ 72-75, 89, 90, 162, 177; Kingsland v. Spaulding, 3 Barb. Ch., 341; Brum v. Howe, 2 id., 341; Embury v. Conner, 3 Comst., 511; Ehl v. Bingham, 7 Barb., 494; Doty v. Brown, 4 Comst., 71; Davis v. Tolcott, 14 Barb., 611; Eggleston v. Knickerbocker, 6 id., 428; Green v. Black, 5 Den., 497; Thomas v. Hobble, 1 Smith, 405.)</p> <p>The guaranty was void as to defendant, because it was. to answer for the debt of another, and no consideration was expressed or proved. (Castle v. Erickson, 10 Hun, 343.) If a surety requests the holder of the instrument to proceed against the principal, and he fails to do so and loss is made, the surety is discharged. (17 J. R., 384; 25 N. Y., 552; 4 J. Ch., 123; 49 Barb., 182; 21 id., 249.) The guaranty being for the collection of the bond and mortgage, no notice from defendant to plaintiff requiring it to collect of the maker was necessary; plaintiff was bound to exercise due diligence. (Burt v. Harner, 51 Barb., 501; Moakley v. Riggs, 19 J. R., 69; Kies v. Tefft, 1 Cow., 98; Gallagher v. White, 31 Barb., 92; Loveland v. Shephard, 2 Hill, 139; Mains v. Haight, 4 Barb., 76; Craig v. Parkes, 40 N. Y., 181; Penman v. Hudson, 6 Barb., 76; Ninell v. Fowler, 23 id., 628; Hart v. Heedson, 6 Duer, 294.) Defendant’s acts did not constitute an estoppel as against him, or show that he waived his right to insist that the bond and mortgage should not be enforced as it became due. (Belmont v. Coman, 22 N. Y., 438; Remsen v. Beekman, 25 id., 552-560; Van Derveer v. Wright, 6 Barb., 547; Payne v. Burnham, 62 N. Y., 69; Malloney v. Horan, 49 id., 111; Lawrence v. Brown, 5 id., 394-395.)</p>

(Reported below, 12 Hun, 349.) This action was brought to set aside and rescind an alleged agreement between the parties for an exchange of lands, and for a reconveyance of the lands deeded under said agreement, or that defendant be required to remove incumbrances on the lands deeded by him under said agreement The facts appear sufficiently in the opinion.

entered upon an order dismissing plaintiff’s complaint on trial. This action was brought upon a policy of fire insurance upon buildings occupied as a hotel, with the furniture, fixtures and stock. The facts appear sufficiently in the opinion, The proofs of loss furnished were sufficient and were served in time. (Brink v. Hanover F. Ins. Co., 70 N. Y., 593.) Any ambiguity in the policy must be taken most strongly against the insurer. (Hoffman v. Ætna F. Ins.

The nature of the action and the.facts are set forth sufficiently in the opinion. Upon the facts found by the referee, when the awards were made, Morton was, as regards the premises taken, a purchaser in good faith within the meaning of the recording act.

an application for a writ of mandamus ; and directing that a peremptory writ issue “ addressed to John Kelly, comptroller of the city of Mew York, commanding him as said comptroller forthwith to borrow on the faith of the mayor, aldermen and commonalty of the city of Mew York, the sum of $1,000,000, being the amount of tw'b certain calls made by the trustees of the Mew York-and Brooklyn Bridge, on the city of Mow York, by request made to the mayor and comptroller thereof,…

(Reported hclow, 13 Hun, 214.) This action was brought to recover damages for injuries alleged to have been sustained through the negligence of the driver of one of defendant’s hose carts.

The facts appear sufficiently in the opinion. The decision appealed from was an interlocutory judgment,, and was, as such, appealable. (New Code, § 1349; Van Gelder v. Same, 13 Hun, 118; Old Code, § 349, subd. 2;. id., § 245; Belmont v. Ponvert, 3 Robt., 696; Bentley v. Jones, 4 How. Pr., 335; 1 Barb. Ch. Pr. [2d ed.], 326, 336-337; 1 Bouv. L. Dict., title Judg., ¶ 24; New Code, § 1201.) The order appealed from, did not affect a substantial right, and was not appealable.

(Reported below, 12 Hun, 469.) » Plaintiff’s complaint alleged, substantially, the following facts : Pending proceedings before the surrogate of Westchester county, for the final settlement of the accounts of the plaintiff, as administrator of the estate of John -T. Wright, deceased, the plaintiff obtained from several of the next of kin of the intestate, instruments under their respective hands and seals, by their terms releasing and discharging him as such administrator,…

<p>Appeal from judgment of the General Term of the Superior Court of the city of Mew York, in favor of defendant, entered upon an order reversing a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury, and directing a judgment dismissing plaintiff’s complaint.</p> <p>This action was brought against defendant, as a stockholder of the Hudson River Iron Company, to recover the amount of an indebtedness of said corporation to plaintiff, upon the ground of the non-filing of the certificate of the payment in of its capital stock, as required by the general manufacturing act.</p> <p>It appeared that in July, 1872, plaintiff sold to the company a bill of iron, for which its note was given, payable in five months, which plaintiff procured to be discounted ; at maturity the company gave a new note, payable in three months, which the plaintiff procured to be discounted, and with the proceeds took up and paid the prior note, which was thereupon canceled and surrendered. On the 4th day of March, 1875, the company gave a new note, payable three months after date, which was used as before, and the former note canceled and surrendered. Again, on the 5th day of June, 1875, a new note, payable in three months, was given, which was also used as before, and the former note canceled and surrendered.</p> <p>Suit was brought on this last note March 17, 1876, and judgment obtained, and upon the return of the execution wholly unsatisfied this action was commenced in April, 1876.</p> <p>The debt upon which plaintiff recovered accrued within a year before the commencement of this action. (Brown v. Burrall, 31 N. Y., 114; Stettheimer v. Meyer, 33 Barb., 215; Bk. of N. Y. v. Vanderhorst, 32 N. Y., 553; Bk. of Salina v. Babcock, 21 Wend., 501; Youngs v. Lee, 12 N. Y., 551; Day v. Saunders, 1 Abb. Ct. App. Dec., 495; Fisher v. Marvin, 47 Barb., 159; Bk. of Sandusky v. Scoville, 24 Wend., 115; Pratt v. Foote, 9 N. Y., 463.) The bank being a holder for value, and in good faith of the last note, plaintiff being compelled to pay the same as surety, is subrogated to the position of the bank and has it rights and remedies against the maker. (Hayes v. Ward, 4 J. Ch., 122; 1 Parsons on Bills, 162.)</p> <p>The note of a debtor, given for an existing indebtedness, is in no sense a payment thereof, and does not create a new debt; but is merely an evidence of the debt and an extension of the time of payment ; and on non-payment of the note the original indebtedness may be sued on. (Parrott v. Colby, 6 Hun, 55, 57, 58, 59; 71 N. Y., 597.) The fact that plaintiff himself got the renewal notes discounted, and thus took up each note except, the one in suit, docs not change this case. (Parrott v. Colby, 6 Hun, 59.)</p>

(Reported below, 12 Hun, 403.) This action was brought to foreclose a mortgage which, with the bond accompanying it, were executed by defendant Sarah Cary to James E. Shurtcr and George A. Seaman.

(Reported below, 11 J. & S., 199.) This action was brought to recover damages for injuries alleged to have been received because of negligence of defendant’s employe. It is reported upon a former appeal in 65 N. Y., 554.

Appeal by defendant Lawton from an order of the General Term of the Supreme Court, in the first judicial department, affirming an order of Special Term granting leave to the plaintiffs to serve a supplemental summons and complaint, and to proceed in the action, omitting the name of Samuel F. Butter worth as defendant.

The nature of the appeals, of the action, and the facts appear sufficiently in the opinion. The motion to set aside the judgments was not made in time, and the court below had no power to grant it. (2 Stat. at Large [Edm.’s ed.], 371, § 2; Sherwood v Pratt, 11 Abb. Pr. [N. S.], 115; Laws 1817, p. 178; 1 Burrill’s Prac., 474; 2 Arch. Prac., 225; Arch. N. Prac., 414, 415; 10 John.

Appeal by Haney Bruce from order of the General Term of the Supreme Court, in the fourth judicial department, affirming an order of Special Term, which set aside a foreclosure sale herein and directed a re-sale. This action was for the foreclosure of a mortgage. Judgment of foreclosure and sale was perfected and was assigned by plaintiff to said Haney Bruce, who bid off the ■ mortgaged premises on the foreclosure sale.

(Reported below, 13 Hun, 366.) This action was brought to recover back a payment of $1,000 made upon a contract under seal for the sale by defendant and purchase by plaintiff of certain real estate.

<p>The Court of Common Pleas of the city and county of New York has no jurisdiction to entertain an appeal from an order of the Marine Court, except it be an order granting a new trial. (Old Code, §§ 34,352, 354; § 9, chap. 545, Laws of 1874; § 43, chap. 479, Laws of 1875.)</p> <p>The word “ judgment,” as used in the provision of the Code of Procedure (§ 34), conferring appellate jurisdiction np°n the Court of Common Pleas, was used in its usual sense, and does not include determinations not resulting in judgments.</p> <p>Accordingly, held, that an order of the General Term of the Marine Court, granting a perpetual stay of proceedings, was not appealable to the Common Pleas.</p>

The proceedings were by mandamus to compel defendants to assess and pay to relators the damages sustained by them by reason of injuries to their building, in the city of Buffalo, caused by an explosion, directed by the chief engineer of the city. The facts appear sufficiently in the opinion. A party is held to intend to do that which is the natural and ordinary consequence of his acts. (3 Greenleaf’s Ev., § 14; Van Pelt v. McGraw, 4 N. Y., 110; People v. Orcutt, 1 Park. Cr.

(Reported below, 9 Hun, 155.) The substance of the complaint is stated in the opinion. The bond, being upon its face the naked promise of a married woman, is void. (Corn Ex. Ins. Co. v. Babcock, 42 N. Y., 613, 620, 632; Gosman v. Cruger, 7 Hun, 60; Eanslapere v. Kitchen, id., 621; Owen v. Cowley, 36 N. Y., 600, 603; Man. B. and M. Co. v. Thompson, 58 id., 80; Second Nat.

<p>Appeal from judgment of the General Term of the Court of Common Pleas, in and for the city and county of Yew York, in favor of plaintiff, entered upon an order overruling exceptions and directing judgment upon a verdict.</p> <p>This action was upon a policy of insurance issued upon the life of John R. Dilleber, dated December 22, 1858, and assigned to plaintiff.-</p> <p>By the terms of the policy the insurance was for “ the term of twelve months commencing the 22d day of December, 1858.”</p> <p>The policy contained this provision :</p> <p>“And it is hereby agreed that this policy may be continued in force from time to time, until the decease- of the said John R. Dilleber, provided that the insured shall duly pay, or cause to be paid, to the said company annually,. on or before the 2 2d day of December, in each and every year, the sum of $56.37.”</p> <p>Among the conditions wore the following :</p> <p>“1. The premium, must always be paid on or before the day upon which it falls due, and the party paying should bo careful to obtain a receipt therefor, signed by the presi-1 dent and secretary, and hearing the seal of the company. According to the terms of the charter, no other receipt is binding upon the company for tho continuance of a policy.</p> <p>“ 2. Any policy, renewal receipt, continuing a policy permit, consent to any agreement whatever, concerning insurance, not signed by the president and secretary, and bearing the seal of the corhpany, is void.”</p> <p>Exceptions were ordered to be heard, at first instance, at General Term.</p> <p>Tho further facts asnear sufficiently in the opinion.</p> <p>Before tne notes and checks offered in evidence could he introduced, it was necessary for plaintiff to show that an agreement between the insured . and defendant to give days of grace for the payment of the premiums existed, and that tho notes and checks were given in pursuance thereof. (Hill v. Syr. R. R. Co., 63 N. Y., 101; Denny v. N. Y. C. R. R. Co., 5 Daly, 52, 53.) He was also bound to show that. such agreement ivas made by one authorized by defendant, and. was based upon a good and sufficient consideration. (Hill v. Syr. R. R. Co., 63 N. Y., 101; Anderson v. Rome R. R. Co., 54 id 334.)</p> <p>A parol agreement, after the policy was issued, giving tho insured a reasonable time to pay the premiums after "they became due, was valid and. binding upon defendant. (Howell v. The Knickerbocker Life Ins. Co., 19 N. Y., 276; 3 Robt., 232; Trustees, etc., Brooklyn Fire Ins Co., 19 N. Y., 305; Carroll v. Charter Oak Ins. Co., 10 Abb. [N. C.], 166; 40 Barb., 292; Goit v. Nat. Protection Co., 25 Barb., 189; Seldon v. Atlantic Fire and Marine Ins Co., 26 N. Y., 460; Pitney v. Glens Falls Ins. Co., 61 Barb., 335; 26 id., 556; Bodine v. Ex. Fire Ins. Co., 51 N. Y., 317.) The president or the secretary of the company had ample authority to waive forfeiture for the non-payment of premium when duo ; even a general agent" has sufficient authority. (Kolgers v. Guard Life Ins. Co., 10 Abb. Pr. [N. S.], 176-180; Carroll v. Charter Oak Ins. Co., 10 Abb. Pr., 172; Marcus v. St. Louis Mut. Life Ins. Co., 68 N. Y., 625; Dean v. Ætna Life Ins. Co., 62 id., 642; 26 id., 460; Conover v. Mut. Ins. Co., 1 Comst., 290; 51 N. Y., 117; Leslie v. Wiley, 47 id., 652; Elwell v. Chamberlin, 31 id., 611; Pitt v. Berkshire Life Ins. Co., 100 Mass., 500.) Tho consideration' for the agreement of waiver (if any was necessary) ivas sufficient. (Leslie v. Knick. Life Ins., 63 N. Y., 27-31.) The retention of the premium was a good consideration for the agreement. (Shearman v. Niagara Fire Ins. Co., 46 N. Y., 526-532; 62 id., 642.) Defendant was estopped from pleading or showing a forfeiture or default caused solely by its own acts. (Ripley v. Ætna Ins. Co., 30 N. Y., 136-164; Brown v. Bowen, 30 id., 519; M. and T. Bk. v. Hazard, 30 id., 226; 63 id., 27; Plumb v. Cattaraugus Life Ins. Co., 18 id., 392; 7 Allen, 239; 5 Lans., 275; 2 C. B. [N. S.], 257; May on Ins., 613, 614, 433, 436; 2 Story on Cont., 976.) The terms of a policy issued by a life insurance company may be waived by the ordinary custom of its office in dealing with its patrons, and the waiver may be shown “by circumstances from which it may be inferred.” (Carroll v. Charter Oak, 10 Abb. Pr. [N. S.], 172; Kolgers v. Guard. Life Ins. Co., 10 Abb., 176; 4 id., 144; 51 N. Y., 117; Helme v. Phila. Life Ins. Co., 61 Penn., 107; Buckbee v. U. S. Ins. Ann. and Tr. Co., 18 Barb., 541; 26 id., 566; 35 N. H., 328; 26 Iowa, 9; 5 Cush.. 273.)</p>

(Reported below, 13 Hun, 138.) The affidavit of the defendants, on which the county judge issued the summons, stated that on the 13th of May, 1876, the defendants let unto the relator certain premises therein described, consisting of a farm in the town of Do Witt, from May 15, 1876, to the 1st day of April, 1877 ; that the said term has expired, and that said Ainslie holds.over, and continues in the possession of the premises without the permission of the respondents, his…

About the 29th January, 1870, the plaintiff brought his action against defendants Loveridge and Harman us B. Duryea, describing them to be… Held: as above the court citing Cochran’s Ex’r v. Ingersoll (66 N. Y., 652); also that, as the order appealed from was granted on the ' return of the defendant’s order to show cause why the ex parte order of the plaintiff, striking out King as a defendant, should not be set aside, why the plaintiff’s amended complaint should not be set…

<p>A majority of the court did not concur in any opinion Written herein. (Reported below, 14 Hun, 516.)</p>