Volume 77 — New York Reports

(Reported below, 16 Hun, 369.) This action was brought against defendants as executors of the will of Rufus L. Lord, deceased, to collect the amount of a policy issued by The Columbian Insurance Company, of which company the deceased was a stockholder.

<p>Appeal from order of the General Term of the Supreme Court, in the second judicial department, reversing an order of Special Term striking out the answer of defendant Eliza Baker. (Reported below, 16 Hun, 182.)</p> <p>The defendant answered in this action, and thereafter the plaintiff obtained an order for her examination before trial under the provisions of the Code relating to depositions. (Title 111, art. 1, §§ 870, 872, 873.) It was not served upon her, but upon her attorneys. She did not appear as required by the order, and on application of the plaintiff, the Supreme Court at Special Term made an order striking out her answer unless she appeared for examination.</p> <p>The service of the affidavit and order upon defendant’s attorneys only was not a sufficient service. (Riddle v. Cram, 4 Abb. N. Cas. [note p.], 17; Freiberg v. Branigan, 3 id., 121; Wood v. Keal, id., 122.) Defendant could not be punished for contempt of an order not served on her. (Code, § 8, sub. 3, id., § 302; Satterlee v. De Comean, 7 Robt., 666; 2 R. S., 535; §§ 3, 5; Rider v. Kidder, 12 Ves., 202; Durant v. Moore, 2 R. & M., 34; Weston v. Faulkner, 2 Price, 2; 4 Wait’s Pr., 180.)</p>

The nature of the action and the facts are set forth sufficiently in the opinion. Section 33 of chapter 134 of Laws of 1851 is not applicable to this case. It only has reference to the measurement of lands,.not to the material taken from an excavation. (2 Burr. L. Dict., 127, 128.)

(Reported below, 14 Hun, 90.) The facts appear sufficiently in the opinion. No judge outside the county where the warrant was issued could admit the prisoner to bail. (Gorsline’s Case, 10 Abb., 282; 21 How., 85; People v. Glapham, 30 id., 202; People v. Dixon, 3 Abb. Pr., 399; People v. McLeod, 25 Wend., 483.)

<p>The relator, having a valid claim against D., a contractor, for building a school-house in the city of New York, procured from D. an order on the board of education-for the amount of his claim, to be paid out of a specified installment when it became due under the contract; the order was delivered to and retained by said board, which, when the installment became due, made a certificate thereof, stating facts sufficient to constitute a voucher, and transmitted the same to the comptroller with the order attached. That officer paid the whole installment to D., disregarding the order. Upon application for a mandamus to compel the comptroller to pay relator’s claim, it appeared that he had previously brought an action against the city to recover it, in which he was beaten on the ground that he should have procured a draft from the board of education, as required by the act of 1851 (chap. 386, Laws of 1851), it not appearing that this had in fact been done. Held, that the order operated as equitable assignment of so much of the fund as was specified therein; that a formal acceptance was not necessary, but from the time of notice thereof the city became trustee, for the benefit of relator, of that portion of the fund so assigned, and had no right to convert or misappropriate it; that, by the payment to D., the city became liable to relator for the amount assigned; and that he was entitled, under the circumstances, to a mandamus requiring the comptroller to pay it from money appropriated to pay judgments or other money furnished by the city for the purpose, a reasonable time being given for that purpose.</p> <p>Also held, that the fact that the misappropriation was made by the predecessor of the present comptroller did not affect the relator’s right to the writ; that, in a case like this, where the city was liable for the wrongful act of its officer, the court was not bound to regard a change of incumbents, as the city was bound to protect the officer from personal harm.</p> <p>Where money in the treasury of a municipal corporation has been appropriated for a specific purpose, it is not in all cases a sufficient answer to an application for a mandamus to compel its payment for that purpose, to set up that it has been wrongfully applied to other purposs; it may be regarded, in contemplation of law, as still in the treasury.</p>

Appeal by the plaintiff 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. (Reported below, 9 Hun, 517.) This action was brought to recover damages alleged to have resulted from a nuisance. It appeared from the evidence that plaintiff, in 1874, kept a boarding-house in the village of Saratoga Springs, near which flowed a small natural stream of water.

(Reported below, 10 Hun, 453.) This action was brought by plaintiff, as receiver, appointed in proceedings supplementary to execution, issued upon a judgment in favor of one Ferris against defendant Henry C. Sutcliffe, to have said judgment declared a lien upon certain premises alleged to have been purchased and paid for by said judgment debtor, but conveyed by his directions and for the purpose of defrauding his creditors to his son, defendant William Sutcliffe.

The said order of General Term overruled the demurrer and directed judgment thereon for said defendant. (Reported below, 12 Hun, 35.) The substance of the pleadings is set forth in the opinion. The act of plaintiff, although not expressly authorized to carry on the business of banking, i-n advancing the money on the notes in suit, does not preclude it from recovering. ( Utica Ins. Co. v. Scott, 8 Cow., 709; People v. Brewster, 4 Wend., 475; Palmer v. Lawrence, 3 Sandf.

<p>M. procured a loan of money from H. on a promise that B. would sign a note with him for the amount of the loan. M. delivered Ms own note, stating that B. would sign it; this B. did some two years thereafter. In an action upon the note, held,, that B. was liable; that her signature would be considered as having been placed to the note at its date, and this although B. did not know of the arrangement; that it was sufficient if she signed at the request of M., who had given the assurance.</p>

This action ivas brought to recover damages for the loss of a number of barrels of apples, alleged to have been caused by the failure to perform, on the part of defendant, of a contract to transport said apples by boat from Watkins to the city of Now York.

(Reported below, 13 Hun, 76.) This action was brought to recover damages for injuries alleged to have been occasioned by the neglect of defendant in permitting obstructions upon one of its streets. The facts appear sufficiently in the opinion. The so called negligent acts of defendant alleged by plaintiff and found by the referee were too remotely connected, if at all, rvith the accident, to have caused or contributed to it in a legal sense.

This action was brought to recover the amount of two installments of interest due upon a bond and mortgage executed by Joseph M. Koehler to plaintiff Prime, a half interest wherein was subsequently assigned to plaintiff Ross. By the terms of the bond and mortgage interest was covenanted to be paid semi-annually, and in case of a default in payment continuing for thirty days the whole principal became due, at the option of the mortgagee.

<p>Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of New York, affirming a judgment in favor of plaintiff, entered upon a verdict.</p> <p>The nature of the action and the facts appear sufficiently in the opinion</p> <p>No recovery could be had in the present form of action, unless the alleged false representations, wrongful conversion and wrongful and fraudulent acts of defendant are proved. (Barnes v. Quigley, 59 N. Y., 265; Ross v. Mather, 51 id., 108; Degraw v. Elmore, 50 id., 1; Elwood v. Gardner, 45 id., 354; Dudley v. Scranton, 57 id.. 424; Ledwich v. McKim, 53 id., 307; Peck v. Root, 5 Hun, 547; Graves v. Waite, 59 N. Y., 156; Walter v. Bennett, 16 id., 250; Belknap v. Sealey, 14 id., 147; Harris v. Schultz, 40 Barb., 319.) The court erred in its decision as to who had the affirmative of the issue. (Lindsley v. European Pet. Co., 3 Lans., 176; Huntington v. Conkey, 33 Barb., 218; Elwell v. Chamberlin, 31 N. Y., 614; Hoxie v. Green, 37 How. Pr., 97.)</p> <p>The complaint stated facts constituting a cause of action on contract, and these facts being sustained by proof, a recovery is authorized, although the complaint is in form for conversion and the summons for relief. (Connaughty v. Nichols, 42 N. Y., 83; Ledwich v. McKim, 53 id., 307; Graves v. Waite, 59 id., 156; Ross v. Terry, 63 id., 613; Byxbie v. Wood, 24 id., 607; Knapp v. Roche, 37 N. Y. Sup. Ct. R., 395; Veeder v. Cooley, 2 Hun, 74; Beard v. Yates, 2 id., 466; Conkey v. Bond,, 36 N. Y., 224; Barnett v. Benjamin, 9 Hun, 705, Jones v. Butler, 20 How. Pr. R., 189; Scott v. Pilkington, 15 Abb. Pr. R., 280.) There was sufficient evidence of fraud to sustain a recovery. (Baldwin v. Cole, 6 Mod., 212; McCombie v. Davis, 6 East, 537, 538; S. C.,. 7 id., 5; Bristol v. Burt, 7 John., 254; Murray v. Burling, 10 id., 172; Reynolds v. Shuler, 5 Cow., 323; Spencer v. Blackman, 9 Wend., 167; Starkie on Evidence, 1492; Laverty v. Snethen, 68 N. Y., 522.) The question upon what conditions defendant held the checks was properly submitted to the jury. (Bidwell v. Lamont, 17 How., 357; Keller v. N. Y. C. R. R. Co., 24 id., 172; Smith v. Tiffany, 36 Barb., 23; Bernhardt v. Bruner, 4 Bosw., 528.)</p>

(Reported below, 14 Hun, 440.) The nature of the orders and the facts appear sufficiently in the opinion. The affinity of the judge to one of the stockholders of the corporation did not disqualify him from sitting in the case.

<p>Where A. ships his goods to B. to be sold, and gives to the latter for that purpose the indicia of ownership, under an arrangement that B. shall advance and pay the freight, sell the goods, and account for the proceeds, deducting the freight; and B. sells the goods and converts the proceeds, he cannot be convicted of larceny of the goods; and this, although A. was induced to enter into the arrangement by false representations on the part of B., made in pursuance of a previous design on his part to obtain the goods, and to cheat A. out of them, or the proceeds thereof.</p> <p>It seems, that the offence in such ease is the obtaining of the property . under false pretences.</p> <p>The distinction between larceny and false pretences is, that in the former the owner of the goods has no intention to part with his property therein, while in the latter the owner does intend to part with his property, which intention is the result of fraudulent contrivances.</p>

The nature of the action and the facts appear sufficiently in the opinion. The defendant’s common council had not power ■ to make the lease in suit, and the rent being in excess of $10,000, and not having been authorized by a vote of taxpayers, it is void.

Appeal by defendant Amos C. Bell from a judgment of the ^General Term of the Superior Court of the city of New ' York, affirming a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 11 J. & S., 557.) This action was brought to recover a balance alleged to be due upon a promissory note made by the firm of A. C. & J. W. Bell, of which firm defendants were the memb.ers. Defendant Amos C. Bell alone answered, setting up a release and discharge.

The facts appear sufficiently in the opinion. The application for the warrant, being based upon defendant’s examination in supplementary proceedings and the judgment roll, should not have been granted. (Lathrop v. Clapp, 40 N. Y., 332; Forbes v. Willard, 37 How., 193; People v. Underwood, 16 Wend., 546; Wait’s An. Code, § 292. The judgment roll, being a part of the evidence upon which the warrant was issued, is conclusive and cannot be contradicted.

<p>Under the provision of the Hew York charter of 1873 (§ 77, chap. 335, Laws of 1873), declaring that members of the uniformed force of the fire department “shall be removable only after written charges shall have been preferred against them,” all that is required is that the commissioners should specify in writing the offence with which the member is charged, in any language sufficient to convey that information, and thus enable the accused to be prepared for trial.</p>

•Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, reversing a judgment in favor of defendant, entered upon a decision of the court on trial without a jury.

The substance of the complaint is set forth in the opinion. The allegations of the complaint were not sufficient to entitle plaintiff to a recovery. (Rodi v. The President, 6 Bos.; 24; Page v. Boyd, 11 How. Pr. R., 415; White v. Brown, 14 id., 282; Buzzard v. Knapp, 12 id., 504; People v. Supervisors of Ulster, 34 N. Y., 269.) The complaint did not show title to the wheat in plaintiff.

<p>A plea of a former suit pending can only be supported by showing, as matter of fact, that a former suit was pending when the second action was commenced.</p> <p>Such a plea cannot be supported by proof of an unsatisfied judgment against the plaintiff in a prior unsuccessful action upon the claim, which is the subject of the second action.</p> <p>This plea was interposed in an action upon an undertaking given on appeal. It appeared that a former action had been brought, the complaint in which omitted to allege that notice of judgment had been served as required by the Code of Procedure (Old Code, § 348); the complaint was demurred to and demurrer sustained because of this omission; and before the commencement of the second action the former suit had proceeded to final judgment on the demurrer, which judgment remained unsatisfied. JSTotice of judgment was served after the commencement of the first and prior to the second action. Held, that the plea was not sustained; also that the former judgment was not a bar.</p> <p>Also, held, that an appeal brought in the first action, after the commencement of the second, had no retroactive effect, so as to sustain the plea.</p>

It appeared by the proofs that after service of the petition but before the hearing of the motion the assessment was paid. The fact that the assessment had been paid before the making of this application was no bar to it. (Peyser v. Mayor, etc., 70 N. Y., 497.)

<p>Plaintiff’s complaint alleged, in substance, that he owned a bond and mortgage made by defendant G., by the terms of which G. covenanted to keep the buildings on the mortgaged premises insured and to assign the policy as collateral, and in default thereof that plaintiff might insure; that the latter conveyed the premises to her daughter, defendant J., an infant three years old, of whose person and estate G. had been appointed guardian; that defendant, The Phcenix Ins. Co., delivered to plaintiff a policy of insurance upon a building on the premises, he paying the premium, which policy insured J. as owner and plaintiff as mortgagee, and by its terms x>roofs of loss were required to be made and sworn to by the assured, and any action on the policy was barred unless brought within twelve months after a loss; that a loss having occurred plaintiff' made and delivered to the company proofs of loss, but it rejected the same on the ground that J. was the party assured, by whom proofs should be made; that plaintiff endeavored to procure such proofs, but Gr. kept herself and J. concealed, refusing to make proofs unless she was paid about §3,000. Plaintiff asked judgment tnat G. be required to make due proofs of loss; that the limitation of time be not allowed to take effect as against plaintiff; and that the company, after the making of due proofs, be required to pay the amount insured. G. and the company demurred to the complaint. Held, that the demurrers were properly sustained ; that plaintiff having of his own motion procured the insurance, and there being no allegation that G-. had made default in procuring insurance, or that because of such default plaintiff procured the policy, Gr. was not legally bound to make proofs of loss either individually or as guardian for J., who was under no obligations to pay the mortgage or to procure insurance; that as against the insurance company the action could not be maintained to cut off its defense based on the limitation of time in which to bring suit, as the validity of the defense must be determined in an action on the policy; and that the action could not be maintained as one upon the policy, as this action is based upon the presumption that the condition of the policy in reference to proofs of loss had not been complied with,, and as such an action would be one at law.</p>

This action was brought by plaintiff ás assignee of her husband to recover for work and labor alleged to have been done and performed by him for defendant. The facts relating to the questions discussed appear sufficiently in the opinion. The assignment to plaintiff directly by her husband was void. (Laws 1848, chap. 200, p. 308) Laws 1849, chap. 375, p. 528, § 3: Laws 1860, chap. 90, § 8; White v. Wager, 25 N. Y., 828; Cashman v. Henry, Ct.

(Reported below, 11 J. S., 261.) The action was for libel. The complaint alleged, in substance, that plaintiff was a theatrical manager and the author of various plays and dramatic works ; that in December, 1875, he caused to be performed in his theatre a play called “ Pique,” which was announced as having been composed and written by him ; that defendant thereupon caused to be published in the “New York Dramatic News,’(a newspaper of which he was the editor and publisher,…

This action was brought by plaintiff as supervisor of the town of Westford, upon a bond given by defendants Draper and Griggs as principals, and the other defendants as sureties for the faithful performance by said principals of their duties as railroad commissioners for said town, under their appointment to that office for a term of three years from May 10th, 1870.

• 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. This action was brought against defendant as sheriff of Ulster county, to recover possession of a quantity of brandy and thirty-six cords of wood which the complaint alleged had been wrongfully taken by defendant.

<p>Appeal from order of the General Term of the Supreme Court, in the second judicial department, affirming an order of Special Term which overruled exceptions to a sheriff's report of sale herein, confirmed the report, and denied motion to vacate a judgment for deficiency.</p> <p>This action was for the foreclosure of a mortgage executed by defendant, Woodruff, upon certain premises situate in the city of Brooklyn. The plaintiff became the purchaser. The sheriff’s report showed that he deducted from the proceeds óf sale the sum of $3,245.67 for liens for taxes. This left a deficiency of $1,536.35, and a judgment for that sum was entered against Woodruff.</p> <p>The facts as to the deduction are set forth sufficiently in the opinion.</p> <p>A mortgagee purchasing a tax title at a corporation sale for unpaid taxes upon the property covered by the mortgage has no right to charge the amount paid against the mortgagor. (Dale v. McEvers, 2 Cow,, 118; Williams v. Townsend, 31 N. Y., 411.) To recover back a sum so paid the mortgagee should have set it up in his complaint. (Simonson v. Blake, 12 Abb. Pr., 331; 1 R. S. [Banks’ 6th ed.], 968, §§ 120-123; Roosevelt Hospital v. Doorley, N. Y. Daily Register, Nov. 18, 1878; Faure v. Winans, Hopkins, 483; Silver Lake Bank v. North, 4 J. Ch., 370; Burr v. Veeder, 3 Wend., 412; Rapelye v. Prince, 4 Hill, 119; Kortright v. Cady, 23 Barb., 491; Robinson v. Ryan, 25 N. Y., 320; Brevoort v. Randolph, 7 How. Pr., 398; Wooley v. Drag, 2 Anstruther, 521; Catlin v. Grissler, 57 N. Y., 364.)</p> <p>The direction in the judgment to deduct from the proceeds of sale any lien on the premises for taxes and assessments was correct. (Easton v. Pickersgill, 55 N. Y., 310; 57 id., 364.) A mortgagee who purchases at a tax sale and takes a certificate as purchaser has all the rights and incidents which the law attaches to it. (Williams v. Townsend, 31 N. Y., 414.)</p>

<p>The remedy given by the bankrupt act (U. S. R. S., § 5120), by application to the District Court which granted a discharge, to annul it, applies only to cases where, upon some of the grounds specified, the creditor could have successfully opposed the granting of the discharge, had he known of the facts at the time of the application.</p> <p>The remedy given by said act is exclusive only when the invalidity of the discharge is based on one or more of the grounds specified therein.</p> <p>A discharge may be attacked by a creditor, in an action in a State court to recover his debt, for a fraud which is not one of those specified, and which does not necessarily aifect its validity except as to the creditor.</p> <p>Ocean Nat. Bank v. Olcott (46 N. Y., 12); Black v. Blazo (117 Mass., 17); Thurmond v. Adrews (10 Bush., 400), distinguished.</p> <p>Where a discharge in bankruptcy is pleaded, the territorial jurisdiction of the court, granting the discharge, to entertain the proceedings, is an issuable fact.</p> <p>It seems, that a discharge in bankruptcy of one member of a co-partnership, under proceedings giving no schedule of firm debts or assets, and not praying for a discharge from firm liabilities, will not relieve the bankrupt from such liabilities.</p> <p>As to whether it bars recourse to the separate estate of the bankrupt for a firm debt, quaere.</p> <p>In an action by the assignee of a judgment to reach property alleged to have been paid for by the judgment-debtor, but conveyed to his wife in fraud of his creditors, the pleadings disclosed that the debt upon which the action was founded was contracted by the firm of C. S. Lazarus & Wolff, and the judgment was against the individual members of that firm. Lazarus subsequently changed his name, pursuant to the statute, to Lawrence, and procured his discharge in bankruptcy under that name. Defendants, who were said Lawrence and wife, pleaded the discharge in bar. Plaintiff replied, alleging in substance that until just prior to the commencement of this action, neither he nor his assignor had any knowledge of such change of name, and that they had no notice of the proceedings in bankruptcy until the answers were put in; that in said proceedings and the papers connected therewith, there was no mention of said firm, or of any connection of Lawrence with it, or of the change of name, or of any debt contracted by Lawrence in the name of Lazarus; and no notice, by publication or otherwise, was given of any application for a d’scharge of Lazarus from his debts; that these facts were purposely and fraudulently omitted, that notice of the proceedings might not reach the creditors of Lazarus. The reply also denied that the bankrupt resided, at the time of the presentation of his petition, within the district. Held, that a demurrer to the reply was improperly sustained; that the facts alleged were sufficient to show that the discharge was invalid or inoperative as to plaintiff’s debt; and that the State court could refuse to give effect to it on that ground.</p>

said defendant to the complaint herein. (Reported below, 15 Hun, 526.) The substance of the complaint is set forth sufficiently in the opinion. This action can be maintained as a bill in tho nature of a bill of interpleader. (Yates v. Tisdale [3 Edw., 71], 74; Schuyler v. Pelisser, 3 Ed. Ch., 191, 192; Shaw v. Coster, 8 Paige, 339, 345; 2 Story’s Eq., § 812 ; Story’s Eq. Pl.,.§§ 294-297; Cady v. Potter, 55 Barb., 466.) This action can be sustained as a bill quia timet.

<p>Appeal from judgment of the General Term of the Superior Court of the city of Hew York, affirming a judgment in favor of the plaintiff, entered upon a decision of the court on trial at Special Term. (Reported below, 11 J. & S., 461.)</p> <p>The nature of the action and the facts are set forth sufficiently in the opinion.</p> <p>Where a deed differs from a prior written contract there is no presumption that the whole agreement was expressed in the contract, and the deed will not be reformed unless it is shown clearly that both parties understood the actual agreement to differ from that expressed in the deed. (Gillespie v. Moon, 2 J. Ch., 596; Denham v. Cornell, 67 N. Y., 563; Stone v. Browning, 69 id., 598; Jackson v. Andrews, 59 id., 244, 247; Souverbye v. Arden, 1 J. Ch., 250; Nevins v. Dunlap, 33 N. Y., 676; Story's Eq., §§ 152, 157; Baker v. Lever, 67 N. Y., 304; Masson v. Bovet, 1 Den., 69; Marquis of Townsend v. Stangroom, 6 Ves., 328, 341; Hinckley v. Smith, 51 N. Y., 21; Preston v. Morton, 67 id., 452; Reynolds v. Douglass, 12 Pit., 497, 506; Mead v. West. Ins. Co., 64 N. Y., 453; Nevins v. Dunlap, 33 id., 676; Story v. Conger, 36 id., 673; Lyman v. Utica Ins. Co., 17 J. R., 373; Cook v. Easton, 16 Barb., 450; Taylor v. Baldwin, 10 id., 585; Kent v. Manchester, 29 id., 595; Pennel v. Wilson, 2 Robt., 509; Moran v. McLarty, 11 Hun, 66; Maghan v. Hartford L. Ins. Co., 12 Hun, 322; Wilson v. Randall, 67 N. Y., 338, 342; Beaumont v. Bramley, 1 Tur. & Rus., 41; Tain v. Old, 1 Barn. & Cress., 634; West v. Earnsey, 1 P. Will., 349; 1 Story’s Eq., § 160.) Equity would not have enforced specific performance of the written contract. (Joynes v. Statham, 3 Atkyns, 389; Fry on Spec. Perf., § 475, 486; Coles v. Bowne, 10 Paige, 526; 1 Story’s Eq., § 134; Martin v. Pycroft, 2 DeG., McN. & G., 785; King v. Hamilton, 4 Peters, 311; 2 Kent, 482 [12th ed.] „) Where no written instructions were given as to the preparation of the writings, parol evidence will be received as to the intention of the parties. (1 Story’s Eq., § 164, f. e.; Price v. Sey, 4 Giff., 235; Page v. Leet, 8 Paige, 337; Fry on Spec. Perf., §§ 1, 79.) Plaintiff’s failure to read the deed was no exeuse¡ (Breeze v. U. S. Tel. Co., 48 N. Y., 139; Kirkland v. Dinsmore, 62 id., 171; Phillip v. Gallant, id., 256.)</p> <p>Taking a deed of real estate, subject to certain mortgages, does not bind the grantee to assume to pay the mortgages. ( Trotter v. Hughes, 2 Ker., 74; Belmont v. Cowan, 22 N. Y., 438; Ritter v. Phillips, 53 id., 586; Hamill v. Gillespie, 48 id., 559; Freeman v. Puld, 44 id., 55; M. H. and N. Co. v. Quintard. 1 Swee., 101.) Plaintiff had a right to demand a deed without a clause making him liable under it, and he had a right in equity to enforce a specific performance of that demand. (Hyde v. Tanner, 1 Barb., 76; Phœnix Ins. Co. v. Gurnee, 1 Paige, 278; Will.. Eq. Jur., 78.) Notice to plaintiff’s counsel was not sufficient to bind plaintiff. (Briose v. Pacific Mu. Ins. Co., 7 Daly, 249; Welles v. Yates, 44 N. Y., 529; Bottsford v. McLean, 45 Barb., 478, 487, 489.) Plaintiff had a right to rely on the statement of Smith that the deed was drawn up according to the contract. (Mead v. Bunn, 32 N. Y., 275.) The covenant complained of having been inserted by the fraud and deceit of defendant, and plaintiff having accepted the deed supposing it was drawn according to contract, the court properly corrected it by striking it out.) Welles v. Yates, 44 N. Y., 525; Bottsford v. McLean, 48 id., 383; Rider v. Powell, 28 id., 310; Matteaux v. London Ins. Co., 1 Atk., 547; Phœnix Ins. Co. v. Gurnee, 1 Paige, 278; Bloodgood v. Sears, 64 Barb., 71; Bidwell v. Astor Ins. Co., 16 N. Y., 262; Wilson v. Van Pelt, 2 N. Y. S. C, 414; Ball v. Storie, 1 Sim. & Stre., 210; Briose v. Pacific Ins. Co., 4 Daly, 249; Willard’s Eq. Jur., 79; Cusistr v. Leavitt, 15 N. Y., 163; Bush v. Hicks, 60 id., 32; 1 Story’s Eq. Jur., § 115; Hunter v. Rausmania, 8 Wheat., 174.)</p>

<p>Where an action is brought iby the attorney-general to vacate the charter of a railroad corporation, which has leased a portion of its road to another company, the lessee has such an interest in the subject of the action and in the real estate to be affected by the judgment as to- entitle it, under section 452 of the Code of Civil Procedure, upon application, for that purpose, to be made a party defendant.</p> <p>This is especially so when the interests of the lessor are protected by stipulations rendering the judgment innocuous as to it, though fatal to the rights of the lessee, and where there is reason to suppose that the lessor is not unfriendly to such a judgment.</p>

(Reported below, 13 Hun, 496.) The nature of the action and the facts are set forth sufficiently in the opinion. The only contract between the parties was for a policy that should cover plaintiff’s loss after exhausting the mortgage. (Ætna Ins. Co. v. Tyler, 16 Wend., 385, 397; Kernochan v. Bowery Ins. Co., 17 N. Y., 428.) The application for a renewal of the policy and the entry in the book of the' company did not constitute a contract.

(Reported below, 17 Hun, 199.) The return to the writ of habeas corpus stated that the relator was held by virtue of a warrant under the hand and seal of the governor of the State of New York, a copy- of which was annexed and made part of the return.

<p>, Appeal from order of the General Term of the Supreme Court, in tho first judicial department, affirming an order of Special Term authorizing the taking and appointing commissioners to appraise the value of lands sought to be taken by petitioner.</p> <p>- The laud sought to be acquired is a tract in the city of New York along the Hudson river, between Sixty-fifth and Seventy-second' streets, adjoining on the west the present roadway of the petitioner. A large portion of the land is under water.</p> <p>The reasons for taking such property, as stated in the petition, are as follows : “ That the petitioners, in addition to the real estate which they have already acquired, require all that certain parcel of real estate situate in the city of New York, and hereinbefore particularly described, for tracks, switches and sidings whereon and whereby cars and trains may be moved, loaded and unloaded, stored, received and dispatched ; for freight sheds, wherein freight may be received and stored, and thence loaded into cars or delivered to consignees ; for an engine house or houses and for a yard for the storing of coal for engines ; for wharves, docks and piers, whereon tracks may be laid and alongside of which vessels may lay to receive and deliver freight carried and to be carried on said railroads, and for other terminal facilities for the purpose of running and operating their railroads.”</p> <p>The facts appear sufficiently in the opinion.</p> <p>The water front of New York city cannot be appropriated to private ownership or condemned for the use of a railroad company without special authority of the Legislature. (Commissioners v. Clark, 33 N. Y., 251; Taylor v. Atlantic Ins. Co., 37 id., 275; In re Boston and Albany R. R. Co., 53 id., 574; In re Rochester Water Comm. to Acquire Lands, etc., 66 id., 413 ; In re Application of the City of Buffalo for the Appointment of Commissioners, etc., 68 id., 167 ; Boston Water Rower Co. v. B. and W. R. R. Co., 23 Pick., 360 ; Springfield v. Conn. R. R. Co., 4 Cush., 71; Central Bridge v. Lowell, 4 Gray, 474; In re Fowler, 53 N. Y.; Mohawk and H. R. R. Co. v. Archer, 6 Paige, 83; H. and D. Canal Co. v. N. Y. and E. R. R. Co., 9 id., 323; Boston and Lowell R. R. Co. v. Salem and Lowell R. R. Co., 2 Gray, 1.) The acquisition of piers, slips and docks for shipping business is not among the legitimate uses and purposes for which, under the statute, a railroad may lawfully exercise the power of eminent domain to condemn private property for public uses. (R. and S. R. R. Co. v. Davis, 43 N. Y. 137 ; N. Y. and H. R. R. Co. v. Kip, 46 id., 546, 553.) The petitioner failed to make out a present public necessity for more lands, and hence its petition should not be granted. (43 N. Y., 145 ; Cooley Const. Lim., *539.) A bona fide attemjfi, to purchase by an actual negotiation is a condition precedent to the filing of the petition. (N. Y. and B. R. R. Co. Case, 12 Abb. [N. S], 21.)</p> <p>The petitioner could not obtain title to the lands covered by streets and avenues, in the tract sought to be condemned. (McMaster’s, p. 20 ; Laws of 1850, chap. 140, § 28, sub. 5 ; 2 R. S. [6th ed.], 533 ; Laws of 1876, p. 204 ; Const. Am. Laws of 1874, p. 928 ; Laws of 1876, p. 60; N. J. Southern R. R. Co. v. Long Branch Commrs., 39 N. J. L. Rep., 28 ; Boston and Maine R. R. Co. v. Lowell R. R. Co., 124 Mass., 368 ; In re City of Buffalo, 68 N. Y., 168 ; In re Rochester Water Comm., 66 id. 413.) The water front of the city of New York and the lands adjacent to it under water are subject to the public uses of navigation and commerce, and cannot be taken under the authority given by the general railroad act. (Taylor v. Atl. Mat. Ins. Co., 37 N. Y., 275 ; Comm’rs v. Clark, 33 id., 251; Comm'rs v. Erie R. R. Co., 5 Rob., 366 ; People v. Vanderbilt, 28 N. Y., 396 ; 2 R. L. of 1813, p. 434, § 229 ; Laws of 1857, vol. 1, p. 762 ; Laws of 1858, p. 413.) The purpose for which the land was sought to be taken was not within the act. (In re N. Y. and H. R. R. Co. v. Kip, 46 N. Y., 546, 552, 553 ; J. Russell Man. Co. v. N. H. S. Co., 50 id., 121 ; Hedges v. H. R. R. Co., 49 id., 223; Rogers v. Wheeler, 52 id., 262.) The petitioner had no right to extend its powers as a carrier by contracting to deliver by water. (Parish v. Wheeler, 22 N. Y., 494; R. and S. R. R. Co. v. Davis, 43 id., 137, 144, 146, 147 ; 66 id., 40.) The question as to the necessity, for the legitimate purposes of the petitioner as a carrier, of the land claimed is largely ' one of fact, and should be submitted to a jury. (People v. Smith, 21 N. Y., 595 ; In re Deansville Cemetery, 66 id., 569.) The omission to file the map required vitiated the proceeding. (McMaster’s R. R. Law, 58, 59 ; In re Marsh, 71 N. Y., 315 ; In re N. Y. C. R. R. Co., 5 Hun, 86.)</p> <p>The petitioner would be entitled to acquire title to the lands in question for the purpose of moving upon them its cattle-pens, elevators, etc. (Met. Gas Co., 5 Hun, 201; 63 N. Y., 333 ; In re B. and A. R. R. Co., 53 id., 574 ; Rochester Water Co., 66 id., 418.) The objection that there is a large extent of water front attached to the property sought to be taken is nob well founded. (66 N. Y., 326, 330 ; Marshall v. Guion, 11 id., 461; Taylor v. Atlantic Co., 37 id., 275 ; Rodney v. Briggs, id., 256; Comr. of Pilots v. Clarke, 33 id., 251; People v. Lambier, 5 Den., 9 ; 5 Hun, 201; 63 N. Y., 327; 43 id., 137.) The petitioner is bound to provide proper storage accommodation for freight until the consignees have had a reasonable time to remove it, as well as for the safe keeping of baggage. (In re N. Y. and N. H. R. R. Co. v. Kip, 46 N. Y., 552, 553 ; Burnell v. N. Y. C. R. R. Co., 45 id., 184 ; Redmond v. Liv., N. Y. and P. S. Co., 46 id., 578 ; McAndrew v. Whitlock, 52 id., 40 ; Story on Bailments [8th ed.] ; Laws 1857, chap. 444, §§ 3, 4.)</p>

TiiESe were two appeals, the one from an order of the General Term of the Supreme Court, in the second judicial department, reversing an order of Special Term which denied a motion on the part of defendants to strike out an amendment of the complaint herein, and to set aside an order of the referee made on trial allowing such amendment, and granting the motionthe other from an order of said General Term affirming an order of Special Term which denied a motion on the part of…

On May 8th, 1877, upon application on order to show cause and on the petition of the attorney-general, an order or decree was granted dissolving- the Guardian,Mutual Life Insurance Company and appointing Henry E. Pierson receiver of its assets. Service of the order to show cause was admitted by the attorneys of said company, who appeared upon the hearing.

The substance of the orders appears in the opinion. The order appealed from affects a substantial right not resting in discretion, and is reviewable in this court. (Code of Civil Proc., § 190, subd. 2; Glenny v. Studwell, 64 N. Y., 120; People v. MuL G. L. Co., 7 W’kly Dig., 204.) An order of examination can only be granted in the cases and in the mode prescribed by statute. (Part 1, chap. 18, art. 3, § 51, R. S. ; Verplanck v. Merc. Ins.

This was an action for contribution. The parties were co-sureties for one Tuck upon an undertaking given ■ on appeal; the judgment was affirmed. Judgment was recovered upon the undertaking, which plaintiff paid. Defendant offered to prove on the trial that plaintiff was indebted to Tuck on account to an amount much larger than the amount paid by plaintiff. This was objected to ; objection sustained, and defendant’s counsel duly excepted.

This action was brought by plaintiffs, as assignees of an alleged claim, for freight and demurrage, against defendants, who were agents of the owners of the cargo of the brig “ Harry Virden,” and who were assignees of the bill of lading. , The facts are sufficiently stated in the opinion.

<p>Claims against an estate may be presented at any time after executors qualify and enter upon the discharge of their duties; and when they examine and decide upon the justice of a claim presented, although no notice to creditors has been published, the effect of their decision is the same as though the claim was presented after publication of such a notice.</p> <p>It is not requisite therefore that a claim be presented to executors, and their refusal to refer made during the publication of notice to creditors,, to entitle a plaintiff, suing upon such claim, to costs</p> <p>Where, upon appeal from an order allowing to plaintiff costs in such an action, the question as to whether there was an offer to refer appears to have been one of fact, although this court has power to pass upon the question as an original one, the general rule acted upon by it is to adopt the finding of the court below.</p> <p>The facts that the plaintiff in such an action was allowed to amend his complaint so as to claim a larger recovery, and to prove and to recover a larger compensation for services. than that stated in the claim presented to the executors, do not change the claim from that originally presented.</p>

(Reported below, 15 Hun, 18.) • The facts appear sufficiently in the opinion. ■ In this proceeding the parties are the People as plaintiff and Insurance Company as defendant, and any interested persons allowed to intervene jpro interesse suo, by an order of the court; the receiver does not hold any such status, as will permit him to make motions or interfere in the litigation between the parties, or to be heard except as amicus curiae. (In re Colvin, 3 Md.

This action was brought by plaintiff as assignee in bankruptcy of one Decker to recover a balance due for a quantity of timber alleged to have been sold and delivered by said Decker to defendants. It appeared that one Allen had contracted to construct for defendants three traveling cranes, and to furnish the timber and materials therefor.

This action was originally brought by the Guardian Mutual Life Insurance Company of New York to recover two loans of $25,000 each, alleged to have been made by it to defendant. The defense was that the loans were, in fact, made to one F. L. Taintor, who was- defendant's cashier, and not to the defendant. The present plaintiff, having been appointed receiver of said company, was substituted as plaintiff in its stead. The facts appear sufficiently in the opinion.

This action was brought to recover damages for the alleged breach by defendant of a contract between the parties.

<p>Appeal from j udgment 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. (Reported below, 16 Hun, 332.)</p> <p>This action was brought to recover damages alleged to have been occasioned by the negligence of the defendant in the performance of its duty, as agent for plaintiff, in collecting a draft sent to it for that purpose. •</p> <p>The facts appear sufficiently in the opinion.</p> <p>The facts proved showed no negligence upon the part of defendant, such as to charge it with any liability. (Daniels’ Negot. Instrts., 24; Morse on Banking, 325; Shearman & Redfield on Negligence, 267, 275; Turner v. Bk. of Fox Lake, 4 Abb. [C. A. D.], 434; Burkhalter v. Second National Bank, 42 N. Y., 538; Kelty v. Second Nat. Bank, 52 Barb., 328; Ayrault v Pacific Bank, 47 N. Y., 570; Mongomery Bank v. Albany Bank, 7 id., 461; Allen v. Merch. Bank of New York, 22 Wend., 228; Turner v. Bank of Fox Lake, 4 Abb. [C. A. D.], 434; Bank of Washington v. Triplett, 1 Peters, 35; West Branch Bank v. Fulmer, 3 Barb., 402; Burkhalter v. Second National Bank, 42 N. Y., 538; Boutin v. Martin, 31 id., 385; Farmers' Bank v. Fc»7, 21 id., 485; Kelty v. Second National Bank, 52 Barr., 328; Turner v. Bank of Fox Lake, 4 Abb. [C. A. D.], 434; Burkhalter v. Second National Bank, 42 N. Y., 538; Russell v. Hankey, 6 T. R., 12; Chitty on Bills, 400; Nunnemaker v. Lanier, 48 Barb., 234; Commercial Bank v. Union Bank, 11 N. Y., 203; Ward v. Smith, 7 Wall., 447;Levi v. National Bank of Mo., 7 Cent. L. J., 249; Daniels on Negot. Instr., 247, 249, and cases cited ; 12. 12. v. Collins, 57 N. Y., 641; Merchants' Bank v. Spicer, 6 Wend., 442; N. Y. R. R. Co. v. Collins, 57 N. Y., 641; Ballard v. Fuller, 32 Barb., 68; Bank v. Woodward, 18 Penn., 357; Morse on Banking, 316.)</p> <p>Defendant had no authority to postpone the payment of the draft. (Story on Agency, § 98; Walker v. Bk. of State of N. Y., 9 N. Y., 584.) It was enough to make defendant liable to show that the draft would have been paid if' presented on the twenty-sixth of March. (Shipsey v. Bowery Nat. Bk., 59 N. Y., 491.) Defendant’s negligence deprived plaintiff of the action it might have taken to avert the loss, and was a substantial damage. (Daniels on Neg. Instrumts., § 1586; Judd v. Smith, 3 Hun, 190; Voorhis v. Olmstead, 66 N. Y., 118.) It was defendant’s duty to give the drawer such notice as was required by the laws of Pennsylvania. (Story on Prom. Notes, § 339; Daniels on Neg. Instrijmts.,.§§ 327, 328, 910; Allen v. Merch. Bk., 22 Wend., 228, 239, 241.)</p>

<p>Error to the General Term of the Supreme Court in the fourth judicial department to revieiv judgment reversing proceedings on habeas corpus, under and by Avhich the said defendant in error was remanded to custody, and discharging him from imprisonment. (Reported below, 16 Hun, 577.)</p> <p>The defendant in error was arrested upon a criminal warrant issued by a police justice of the village of Palmyra, charging him with a misdemeanor in selling liquor to an intoxicated person, contrary to the provisions of section eighteen, chapter 628, Laws of 1857. He pleaded guilty, and was sentenced to imprisonment in the county jail twenty days, and to pay a fine of twenty-five dollars, and to stand committed until paid. While in custody he procured a writ of habeas corpus, and asked for his discharge upon the groiind, among others, that a violation of said section was not a misdemeanor, or punishable as such.</p> <p>The violation of section 18, chapter 628 of Laws of 1857, was a misdemeanor, and punishable as such. (Behan v. People, 17 N. Y., 516; Hill v.People, 20 id., 363, 367; Foote v. People, 56 id., 321; People v. Tighe, 5 Hun, 25.)</p> <p>Where an act is prohibited which has never been prohibited before, and a penalty is affixed for its violation, and the manner of collecting such penalty is pointed out, no other or different penalty exists, and no indictment will lie. (Rex v. Wright, 1 Burr., 543, 544, 545; Hale P. C. of the Crown, 171; Rex v. Robinson, 2 Burr., 803; People v. Stevens, 13 Wend., 341, 342; People v. Brown, 16 id., 561; People v. Behan, 17 N. Y., 517; S. C., 3 Park, 683; id., 562; People v. Foote, 56 N. Y., 331; People v. Van Zandt, 2 Parker, 168-172, 173; People v. Page, 3 id., 600; Brown v. B. and St. Line R. R., 22 N. Y., 197, 198; Clark v. Brown, 18 Wend., 220; Stafford v. Ingersoll, 3 Hill, 38-41; Almy v. Harris, 5 J. R., 175; Behan’s Case, id., 17 N. Y., 517, under § 13; Foote’s Case, id., 56 N. Y., 324, under § 13; Hill’s Case, 20 N. Y., 363, under § 7; O’Rourk’s Case, 3 Hun, 225, under § 14; Foote v. People, 56 N. Y., 322.)</p>

Appeals from two orders of the General Term of the Supreme Court, in the second judicial department, affirming orders of Special Term. One of the orders affirmed an order made upon the coming in of the actuary’s report, which order directed the receiver of said The Atlantic Mutual Life Insurance Company to proceed to sell and convert the assets of said company into money, and to pay out the proceeds thereof in the manner prescribed by statute.

' The facts appear sufficiently in the opinion. Tlio county court had no jurisdiction to revievy the action of the assessors in making an assessment, and could not therefore adjudge the tax in question to be illegal or improper. (In re Hudson City Svgs. Bk., 5 Hun, 612; In re Hermance v. Suprs.

<p>The effect of the provision of the New York charter of 1870 (§ 47, chap. 137, Laws of 1870), 'fixing the salaries of the officers in the police department at the amount then paid to the officers holding such offices (see, also, similar provision of charter of 1873, § 43, chap. 335, Laws of 1873), was to abrogate the provision of the act of 1866 (§ 1, chap 861, Laws of 1830), regulating the salaries of members of the Metropolitan Police Department, which provided “ that whenever the currency of the United States shall attain a par value in gold,’" the salaries therein fixed “shall be reduced twenty per cent.”</p> <p>Accordingly held, that the relator, a captain of police, after January 1, 1879, when such currency became at par with gold, was entitled to the same salary as before; and that upon refusal of the board of police to pay more than the salary as reduced by said provision, relator was entitled to a writ of mandamus to compel payment of-the residue. "</p>

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, affirming a judgment in favor of plaintiff, entered upon the report of a referee.</p> <p>This action was brought by plaintiff, a union free school incorporated under the common school act of 1864, upon an instrument in writing executed by defendant Wolcott as principal, and by the other defendants as sureties, to recover for an alleged failure upon the part of said Wolcott to account for and pay over moneys which came into his hands as treasurer of the plaintiff.</p> <p>The referee found substantially the following facts :</p> <p>The defendant Wolcott was duly elected treasurer of plaintiff on the 19th day of October, 1875, and on the third day of November of the same year, he, as principal, and the defendants Fonda and Ellis, as sureties, executed an instrument in writing in the form of a bond, in the penalty of $600, but without seal, to the- plaintiff, the condition of which is as follows : “ Whereas, the above bounden Henry E. Wolcott has been chosen treasurer of the above mentioned school district No. 9, in the town of Perrinton, county of Monroe, in conformity to the statute relating to free schools; now, therefore, the condition of this obligation is such that if the said Henry E. Wolcott shall well and properly account</p> <p>for all moneys received by him as such treasurer, and shall in all respects duly and faithfully execute all the duties of this office of treasurer of such district, then this obligation shall be void,, otherwise of full force and effect.” This paper was, on the 12th day of November, 1875, duly approved and filed according to law. Said Wolcott, at the time of his election as treasurer and of executing said instrument, and for some years previous thereto, was the sole proprietor of a private unincorporated bank, established in said village of Fairport. Defendant, Fonda, w'as teller in said bank, with full authority from Wolcott to receive and pay out money upon drafts and checks, and transact all business pertaining to the bank. Wolcott had been and was treasurer of said district when he was elected on the nineteenth of October for a second term as above mentioned. On the 1st day of November, 1875, a deposit of school money of said district was made with Woleott, as treasurer, of thirty-six dollars, which remained in his hands on and subsequent to the third of November. Other deposits of the moneys of the plaintiff were made with Wolcott as treasurer from the seventeenth of November to the fifteenth of July. Part of this money was the avails of a tax for carrying on the school in said district; another part the avails of a tax to pay money borrowed by the plaintiff for the purpose of erecting- buildings for the school in said district; another part was received from the literature fund to the amount of $-. By the direction of Wolcott an account was opened on the books of his bank by which he, as treasurer, was credited with the money so deposited, and charged with the , sums paid out on the orders of the plaintiff. Plaintiff, in pursuance of the authority given by chapter 24 of the Laws of 1872, borrowed money for the purpose of building a school-house in said district, and among others borrowed of the Safe Deposit Company, a corporation doing-business in the city of Rochester, $4,000 on the 15th day of July, 1872, for which the plaintiff gave its bond in pursuance of the provisions of said act. Wolcott, being insolvent, absconded, having in his hands as treasurer “unaccounted for of the money of the plaintiff deposited as above mentioned, including the thirty-six dollars deposited the 11th of November, 1875, and the amount of $100 of the literature fund, $3,950.70.” The balance represented, and was made up of taxes collected under said act. On the fourteenth of July the clerk of the plaintiff, by its direction, called at Wolcott’s bank for money, with a view to the payment of said bond, which matured on the following day. Fonda gave a check for $1,000, and a draft as follows :</p> <p>“ Bank of Fairport, )</p> <p>“ Fairport, New York, July 15, 1876. 5</p> <p>“$2,850.18.</p> <p>“Pay to the order of H. A. Barston, Esq., $2,850.18. To the Importers and Traders’ National Bank, New York.</p> <p>“W. T. FONDA, Teller.”</p> <p>Barston, who was one of the trustees of the plaintiff, indorsed the check as follows: “Pay W. S. Storms or order,” to enable Storms, who was also a trustee, to negotiate the draft. The $1,000 check was paid on presentation, the money thus obtained and other money borrowed by the plaintiff was taken to the office of the deposit company and there paid to the clerk in attendance, and the draft on New York indorsed by Storms and delivered to the clerk, who marked the bond of the plaintiff “ paid,” and delivered the same to Storms. The cash and draft amounted to the sum due on the bond, "principal and interest. The draft was indorsed by the deposit company, forwarded to New York for collection, duly presented to the drawer, and protested for non-payment. Due notice of protest was served on the deposit company, and by the latter on Barston and Storms, the indorsers. The plaintiff and Fonda were apprised of the protest on the seventeenth or eighteenth of July ; the bank was closed on the seventeenth and has not since been opened. The referee found “thatthe plaintiff, the indorsers of the draft, including the deposit company, all supposed and believed until the draft was protested, that it would be paid on presentation to the drawer.”</p> <p>The plaintiff on demand returned the bond to the deposit company, who indorsed on it the cash paid, and marked as erroneous the word “paid” written thereon. The draft remained in possession of the deposit company until the 1 trial of this cause, when it was transferred to the plaintiff, by whom it was produced on the trial, with the offer to cancel the same, which offer was declined by the defendants, the sureties of Wolcott.</p> <p>Further facts appear in the opinion.</p> <p>The treasurer could not enter upon the duties of his office until the bond required by the statute was given. (Laws 1864, chap. 555, § 7; Rounds v. Mansfred, 38 Me., 585; Laws 1874, chap. 419; People ex rel. Andrews, 5 Hun, 120; People ex rel. Van Nostrand, 46 N. Y., 375; Hardmann v. Bowen, 39 id., 196; 1 Bouv. L. Dict., 186 ; Colt v. Miliken, 1 Den., 386; Potter’s Dwarris, 127, 132; People ex rel. Bowen v. Jones, 63 N. Y., 309; Kingston Mut. Ins. Co. v. Clark, 33 Barb., 196; People v. Pennock, 60 N. Y.; 421.) When this action was commenced there was no cause of action in plaintiff; the draft having been transferred to the safe company, it carried with it the original consideration. (Battle v. Coit, 26 N. Y., 406; 19 Barb., 68; Peters v. Sanford, 1 Den., 224; Oneida Bank v. Ontario Bank, 21 N. Y., 490, 497, 498; Gerwig v. Sitterly, 56 id., 214.)</p> <p>The instrument executed by defendants, although not a technical bond, was valid as a common law obligation. Its consideration was its retention by Wolcott of his office, and the reception of the money in question. (15 Peters’ R., 290.) The giving up of the draft to be canceled on the trial was all defendants could ask. (Burdick v. Green, 15 J. R., 247; Hughes v. Wheeler, 8 Cow., 58; Holmes v. De Camp, 1 J. R., 35; 2 Pars., 150, and note; Haderin v. Mendizhble, 10 J. B. Moore, 417.) Money raised to pay for the school-house was as much money for school purposes as money to pay the schoolmaster. (Laws 1864, chap. 555; School Code, 1274, title 9, § 10; id., 1270, § 22, Laws 1872, chap. 24.) The action of the Safe Deposit Company did not affect the question between these parties. (Noel v. Merry, 3 Kern., 168.)</p>

This action was brought to recover damages for alleged negligence ,on the part of defendant, in omitting to charge an indorser of a promissory note sent by plaintiffs to defendant for collection. The note in question was made by R. L. Underhill, who resided at Rochester, payable to the order of H. S. McEntee, at defendant’s bank, and was indorsed by the payee to plaintiffs. The note, by its terms, became due July 4, 1875, which day fell on Sunday.

<p>Where the attestation clause to a will recites all the facts necessary to constitute a due execution and publication, and is signed by two witnesses, and it appears that the testator executed the will in the presence of the witnesses, that they were requested by some one to become witnesses to a will, and that they attended at the time in pursuance of such request, the fact that the witnesses when examined are unable to recollect that they signed as witnesses at the request of the testator does not authorize a finding that the statute requirements were not observed. In the absence of evidence contradicting the recitals this lack .of memory does not rehut the presumption of due publication arising from the attestation clause and the other circumstances.</p> <p>The provision of the Revised Statutes (2 R. S., 64, § 44) declaring the will of an unmarried woman is revoked by her subsequent marriage, is not abrogated by the subsequent statutes conferring upon married women testamentary capacity, and thus taking away the reason of the rule at common law.</p> <p>The courts cannot dispense with a statutory rule because it appears that the policy upon which it was established has ceased.</p> <p>M., a married woman, executed in due form a codicil which, after referring to and describing a will executed by her before marriage, contained the following clause : “I do hereby republish, reaffirm and adopt the aforesaid instrument as my present will in like manner as if so executed by me, hut modified pursuant to this codicil, which in connection with and amendment of my said will I now publish and declare together as. constituting my last will and testament.” The will was present when the codicil was executed, and the attention of the witnesses was called to it, and the testatrix at the time declared the instrument to he “a codicil to her last will and testament, and a reaffirmation of the latter.” Held, that the execution of the codicil was a republication of the will; and that it and the codicil together were to be considered as the will of the testatrix.</p> <p>It seems, that a codicil executed with the formalities required by statute for the execution of wills operates as a republication of the will to which it refers, so far as not changed by the codicil.</p> <p>This rule was not changed by the provision of the Revised Statutes (2 R. S., 63, § 40) in reference to the execution of wills.</p>

The nature of the action and the facts are set forth sufficiently in the opinion. Defendant Cook was not a commissioner after his resignation was received by the county judge. (1 R. S., 413, § 38, sub. 6; id., § 40, sub. 2; Gilbert v. Luce, 11 Barb., 91.) Defendants’ omission to obtain written title to right of way for constructing the ditch did not invalidate subsequent .proceedings by them, or render, them personally liable. (Laws of 1869, chap. 888, § 9; People ex rel.

This action was brought to foreclose a mechanics’ lien upon certain premises situate in the county of Westchester, for materials alleged to have been furnished and used in the construction of a building erected thereon. At the time of the furnishing of the materials and the filing of the lien the premises were owned by defendant Catharine Storms, a married woman. The referee found that the building was erected and the materials furnished with the consent of said owner.

<p>Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, affirming a judgment in favor of the defendant, entered upon a verdict.</p> <p>This was an action of replevin, to recover possession of forty-five bales of cotton, brought by plaintiff as surviving member of the firm of. Bates & Comer, commission merchants at Savannah, Ga. It was originally brought against James B. Cunningham, of the firm of James B. Cunningham & Co. Cunningham having died his administratrix, the present defendant, was substituted in his stead.</p> <p>The facts are set forth sufficiently in the opinion.</p> <p>The sale being conditional the contract of sale remained executory until payment was made. (Herring v. Hoppock, 15 N. Y., 409; Strong v. Taylor, 2 Hill, 326; Ballard v. Burgett, 40 N. Y., 314; Coggett v. N. H. R. R. Co., 69 Mass. R., 548.) The factors’ act has no application to this case. (Laws 1830, p. 203; Covill v. Hill, 4 Denio, 330; The Mechanics and Traders' Bank v. The F. and M. Bank, 60 N. Y., 40; First Nat. Bk. of Toledo v. Shaw, 61 id., 283; Kinsey v. Leggett, Court of Appeals, not yet reported; Deshon v. Bigelow, 74 Mass [8 Gray’s R.], 160; Cook v. Beal, 1 Bosw., 497-504; Hatfield v. Phillips, 9 Mees. & Wels., 650.)</p> <p>A sale can only be rescinded in toto and by restoring all parties to a statu quo. (Chitty on Contracts, 813; 2 Parsons on Contracts, 679; Wheaton v. Baker, 14 Barb., 594; Mattawan v. Bently, 13 Barb., 641; Mason v. Baret, 1 Denio, 69; Voorhees v. Earl, 2 Hill, 288; Stevens v. Hyde, 32 Barb., 171; Fisher v. Conant, 3 E. D. Smith, 199; Supin v. Marie, 6 Wend., 77.) A purchaser from the vendee is protected by this rule as well as the vendee. (Wheaton v. Baker, 14 Barb., 594; 2 Kent’s Comm. [6th ed.], 406; Wharton Conflict of Laws,. § 335, 347 to 351; Hoyt v. Thompson, 5 N. Y., 320; Lemmon v. The People, 20 N. Y., 562; Abrahams v. Plestero, 3 Wend., 551; Hoyt v. Thompson, 23 id., 89; De Witt v. Barnett, 3 Barb., 89; Hoyt v. Thompson, 1 Seld., 520; Harrison v. Story, 5 Cranch., 298-302; Ogden v. Sanders, 12 Wheaton, 561; Baker v. Wheaton, 5 Mass., 509; Johnson v. Barker, 4 Bush. [Ivy.] B., 149; Rice v. Danenbaum, 32 Vt. R., 460; 17 Pick., 11; 50 Penn., 230; De Witt v. Barnett, 3 Barb., 89; Donald v. Hewell, 33 Ala., 534; Marsh’s Admr. v. Ellsworth, 37 id., 85; Booth v. Clark, 17 How. [N. S.], 322; 1 Gray, 243.) Upon a sale on credit accompanied by a delivery, with a special agreement that title shall remain in the vendor until the expiration of the credit, the title of the vendor would be good against an execution creditor of the vendee, but the title of a bona fide purchaser from the vendee would be good. (Herring v. Hoppock, 15 N. Y., 409; Cole v. Mann, 62 id., 1; Hasbrouck v. Lownsberry, 26 N. Y., 598; Smith v. Jones, 1 Seld., 41; Wait v. Green, 36 N. Y., 526; Burk v. Grimshaw, 1 Edw. Ch., 140; Bearnes v. Jones, 6 Duer., 238;. Caldwell v. Bartlett, 3 id., 341; Covell v. Hill, 3 Denio, 323-330; Mowry v. Walsh, 8 Cow., 238; Western Transportation Co. v. Marshall, 37 Barb., 509; Fleeman v. McKean, 25 id., 474; Winnie v. . McDonald, 39 N. Y., 243; S. C., 5 Bosw., 131; Cole v. Mann, 62 N. Y., 4; Paddon v. Taylor, 44 id., 371; 58 id., 73.) Defendants having advanced in good faith upon the bill of lading and received the goods are entitled to hold them for their advances and charges. (Lichbarrow v. Mason, 61 East., 21; 2 T. R., 63; Rawles v. Jeshler, 3 Keyes, 572; Dows v. Green, 24 N. Y., 638; Cartwright v. Wilmerding, 24 id., 521; Burk v. Grimshaw, 1 Edw. Ch., 140; Peabody v. Fenton, 3 Barb. Ch.,.463; Parker v. Patrick, 5 T. R., 173; Pickering v. Bark, 15 East., 38; Brower v. Peabody, 13 N. Y., 171; Voorhies v. Olmstead, 66 id., 113; Western Trans. Co. v. Marshall, 37 Barb., 509; Lewis v. Palmer, Denio and Hill’s Sup., 68; Smith v. Lynes, 1 Seld., 41; Wait v. Green, 36 N. Y.) This case is within the first section of the factor’s act. (Laws of 1830, chap. 179; 2 R. S., part 2, chap. 4 tit. 5; Rawles v. Deshler, 3 Keyes, 572; Dows v. Green, 24 N. Y., 638; Dows v. Rush, 28 Barb., 157; Cartwright v. Wilmerding, 24 N. Y., 521; Western Trans. Co. v. Marshall, 37 Barb., 509.)</p>

<p>Appeal from judgment of the General Term of the Superior Court, of the city of New York, - affirming a judgment in favor of plaintiff, entered upon a verdict.</p> <p>The nature of the action and the facts are set forth sufficiently in the opinion.</p> <p>The testimony of Pettis was incompetent. (3 R. S. [Banks’ 6th ed.], 994, § 43; Const., Art. 3, § 5; Freeman v. Frank, 10 Abb. Pr., 371; Miller v. Finkle, 1 Park. Cr., 377; O'Brien v. Hagan, 1 Duer, 664; 1 Greenl. Ev. [Redf. ed.], §§ 449, 461.) When an action is brought to recover damages for fraud, or to rescind a sale brought about by fraud, contemporaneous frauds and fraudulent representations may be shown to show the fraudulent intent. (Cary v. Hotailing, 1 Hill, 311, 316; 3 Greenl. Ev., §§ 111, 111a; id., § 94; Hitchcock's Case, 6 City Hall Rec., 43; Luby v. Hud. R. R. Co., 17 N. Y., 131; 1 Phil. Ev. [Edw. id. of 1859], 202; Anderson v. R. W. and O. R. R. Co., 54 N. Y., 339; Worrall v. Parmalee, 1 Comst., 519; Page v. Cagwin, 7 Hill, 361; People v. Wiley, 3 id., 194, 214; Marquand v. Webb, 16 J. R., 90; Osgood v. Pres., etc., Manhattan Co., 3 Cow., 612; 17 N. Y., 131; 54 id., 339.) The allegations of the complaint being of a liability arising out of contract could not be sustained by proof of torts. (Beard v. Yates, 2 Hun, 466 ; Walter v. Bennett, 16 N. Y., 250; Arnold V. Angell, 62 id., 508; Hollister v. Englehart, 11 Hun, 446.) An amendment of the complaint on the trial, so as to confine the pleadings to the proof, AAroukl not have been permissible, because it Avould have changed the cause of action. (Whitcomb v. Hungerford, 42 Barb., 178; Bush v. Filley, 49 id., 600; Ford v. Ford, 53 id., 525; Phillips v. Melville, 17 N. Y. S. Ct. R., 211; Smith v. Mayor & Co., 37 N. Y., 518.) Evidence of the acts and doings of the alleged conspirators was improperly received. (Tappan v. Powers, 2 Hall, 277, 296, 322-335; Jones v. Baker, 7 Cow., 445, 450; Forsyth v. Edminston, 11 How., 408; Mussina v. Clark, 17 Abb. Pr., 188; McHenry v. Hazzard, 45 Barb., 657; Setzar v. Wilson, 4 Ired. [Law], 501, 507; People v. Brady, 56 N. Y., 182, 188, 192; Root v. Loundes, 6 Hill, 518; Campbell v. Butts, 3 Comst., 173, 176; Davis v. Talcot, 2 Ker., 184.) ‘The court cannot, where the damages are entire, reverse in part and affirm in part. (Old Code, § 330; Code Civil Proc., § 1317; Story v. N. Y. and H. R. R. Co., 2 Seld., 85.)</p> <p>An issue cannot be raised upon an answer to a question put to affect the credibility of a witness. (Bap. Ch. v. B’klyn. F. Ins. Co., 28 N. Y., 160.) The answer of the witness is conclusive and cannot be contradicted. (Plato v. Reynolds, 27 N. Y., 588; Carpenters. Ward, 30 id., 243; Gt. West, Turnpike Co. v. Loomis, 32 id., 134; Greton v. Smith, 33 id., 250.) Defendants are jointly and severally liable to respond for the damage arising out of the illegal acts, or the acts of any one of them in furtherance of the conspiracy. (3 Greenleaf's Ev. [Red’f ed.], § 89, 97; 1 Wharton’s Am. Crim. Law, § 702; People v. Mather, 4 Wend., 259; 2 Wharton’s Am. Crim. Law, §§ 2351, 2352; 3 R. S. [Banks’ 5th ed.], 988, § 33; id., 985, §§ 9, 10; Commonwealth v. Hall, 4 All, 307; Cole v. Cole, 50 How. P. R., 60; 1 Greenleaf’s Ev. [Red’f ed.], 423, § 376; Code of Civil Proc., § 838.) The motion to dismiss the complaint as against Mrs. Gleason was properly denied. (3 R. S. [Banks’ 6th ed.], 996, §§ 17, 18; Cooley on Torts, 115; 2 Bishop’s Law of Married Women, § 258; Cassin v. Delany, 38 N. Y., 178.)</p>

<p>Where a woman is indicted as a femme sole, and pleads to the indictment, this is prima, facie evidence that she is unmarried.</p> <p>The presumption of coercion, which excuses a wife for a larceny committed in the company of her husband, is prima facie ; not conclusive; if it appears that she was not urged or drawn to the offence by him, but was an inciter of it she is liable as well as he.</p> <p>It is the presence of the husband which raises the presumption, and if the wife commits the offence, by the bare command or procurement of the husband, when he is not present, she is liable.</p>

(Reported below, 13 Hun, 489.) This action was brought to recover damages for an alleged breach of covenant of seizin and of a good right to convey, contained in a deed from defendant to plaintiff of certain premises in the city of New York. The facts appear sufficiently in the opinion, The covenant of seizin is satisfied only by the transfer of an indefeasible title.

This action was upon a promissory note. The note in question, with two others, were given to pay and take up three other notes given by defendant in payment of an indebtedness of defendant to one Avery Smith for money loaned. The three original notes were indorsed by the payee to plaintiff. The new notes were made payable to the order of plaintiff.

The facts appear sufficiently in the opinion. The court has no power to punish for a contempt for disobedience of its directions, except when an execution cannot issue. (Code Civil Proc., § 14, sub. 3; 4 Wait’s Pr., 558-560; MeCullogh v. Hoffman, Supreme Court, Special Term, Barrett, J.)

<p>Appeal from order of the General Term of the Superior Court of the city of New York, affirming an order of Special Term, denying a motion to vacate an order of arrest herein.</p> <p>The nature of the action and the facts appear sufficiently in the opinion.</p> <p>The words “fiduciary capacity ” in the bankrupt act of 1867 have the same sense as the same words in the act of 1841. (Cronan v. Cutting, 104 Mass., 245; Grover v. Clinton, 8 N. B. R., 312; Owsley v. Cobin, 15 id., 489; Neal v. Clark, 95 U. S. R., 708; Kime v. Graff, 5 “ The Reporter,” 89.) The debts created by “ fraud ” in the sense that word is used in said act (U. S. R. S., § 5117), are associated directly with debts created by embezzlement, and are of that class of fraudulent debts, and do not embrace implied fraud or fraud in law. (Neal v. Clark, 95 U. S. R., 704, 709.) The phase, “ while acting in any fiduciary character,” implies a fiduciary relation existing previously to or independently of the particular transaction from which the debt arises. (Cronan v. Cotting, 104 Mass., 245.) A discharge by virtue of said act, § 5119, releases-the bankrupt from all demands in tort, such as trespass or trover, for wrongful conversion of property. (Grover v. Clinton, 8 N. B. R., 312; Cole v. Roach, 37 Tex., 413; Chapman v. Forsyth, 2 How., 202; Cronan v. Cotting, 104 Mass., 245; Owsley v. Cobin, 15 N. B. R., 489; Kime v. Graff, 5 “ The Reporter,” 489; Woolsey v. Cade, 15 N. B. R., 238; In re Smith, 18 id., 24.)</p> <p>The defendant’s discharge in bankruptcy does not affect the order of arrest or operate to release the defendants from the plaintiffs’ cause of action. (Rev. Stat. [U. S.], 993, § 5117.) The debt of the bankrupts was not only created by fraud, but while acting in a fiduciary character. (White v. Platt, 5 Den., 268; Stand. Sugar R. v. Dayton, 70 N. Y., 486.) The words “ fiduciary capacity ” have a broader meaning as used in the present bankrupt act than in the act of 1841. (Ostell v. Brough, 24 How. Pr., 274; Sutton v. De Camp, 4 Abb. [N. S.], 483; Clark v. Pinkney, 50 Barb., 226; Duguid v. Edwards, 50 id., 288; German Bank v. Edwards, 53 N. Y., 541.) Where there is a.fraud in fact, or where the property has been misapplied by the person while acting in a fiduciary capacity, the debt or obligation is not released by a discharge in bankruptcy. (Stoll v. King, 8 How. Pr., 298; 1 Wait’s Pr., 619.)</p>

<p>Motion to dismiss appeal.</p> <p>The nature of the actions and the material facts are set forth in the opinion,</p>

This action was brought upon a bond given by Joseph Fleischl as principal, and the defendants as sureties, conditioned for the faithful performance by Fleischl of his duties as agent of plaintiff, and to pay over all moneys belonging to it.

<p>This action Avas brought by plaintiff, as son and heir-at-law of D., to set aside a conveyance of real and personal property executed by the latter to defendants, D. H. and J., on the ground of mental incapacity, and of fraud and undue influence. Both of these issues were found against plaintiff. By the terms of the conveyance the grantees covenanted to pay two-thirds ,of the expenses of the support and maintenance of D. and wife during their lives respectively. The complaint alleged that plaintiff had boarded and cared for said D. and wife up to their deaths, and asked for an accounting and payment therefor out of the estate conveyed. Held, that plaintiff was not entitled to a reference to ascertain the amount due to him, if any, for such support and maintenance, both because it was inconsistent with the main relief sought by the complaint, and b'ecause the covenant was not with and for the benefit of the plaintiff; and consequently he could not maintain an action upon it.</p>

. This action was brought to recover wharfage. The plaintiff's assignor, Thomas C. Burke was the grantee or lessee from the city of the wharfage accruing for the use and occupation by vessels of pier 48, East river, for the term of five years, from May 1, 1876. When the lessee entered on that date into possession of. the pier, the defendant’s floating dry dock lay in the slip between piers 48 and 49.

This action was brought by plaintiff as guardian of the estate of Alexander M. Fisher, a minor, ppon a bond given by defendant as surety for one Britton, a former guardian.

This was an action of replevin to recover possession of nine pianos. It was brought originally against defendant Gabler, who answered that he held the pianos as bailee of defendant Bod-man. The latter, who claimed as assignee for the benefit of creditors of one Strauss was, upon application, made a party defendant. Plaintiff claimed title by virtue of an alleged sale to him by Strauss.

The nature of the action and the facts are set forth sufficiently m the opinion. Plaintiffs released and discharged the defendant Erwin from, all liability by their own acts in relation to the execution.

<p>Plaintiff contracted to furnish and put up on defendant's premises at 1, a completed machine of a specified kind, “all ready to make gas.” Defendant agreed to pay freight on the machine from New York, to furnish tank and house, and to pay §1,500 “when the works are on that ground." Plaintiff shipped the castings and materials for the machine, which defendant received and paid freight thereon, hut did not permit plaintiff to put up the machine. Held-, that an action to recover the contract price was not maintainable; that as the contract was entire and had not been performed, and as the contract price was not divisible, no recovery could be had for any portion of it.</p> <p>It seems, that plaintiff’s remedy in such a case is an action to recover damages for a breach of the contract.</p>

<p>Appeal from order of the General Term of the Supreme Court, in the second judicial department, reversing an order of Special Term which denied a motion on behalf of defendants to readjust the costs herein. (Mem. of decision below, 17 Hun, 241.)</p> <p>The item in question was the referee’s fees. The facts appear sufficiently in the opinion.</p> <p>Yerbal or oral stipulations made in open court during the trial of a case will be enforced by the courts if they relate to the proceedings in the case and are acted upon before revocation. (Jewett v. Albany City Bank, Clarke’s Ch. [Moak’s ed.], 247; Banks v. Am. Tract Soc., 4 Sandf. Ch., 438; Staples v. Parker, 41 Barb., 648; Corning v. Cooper, 7 Paige, 587; Livingston v. Gedney, 25 How. Pr., 1, 4; Foster v. Bryan, 26 id., 164; Ballou v. Parsons, 55 N. Y., 673; Keater v. U. and D. P. Road Co., 7 How. Pr., 41; Dezell v. Odell, 3 Hill, 215; Thurman v. Fiske, 30 How. Pr., 397; 16 Hun, 14.) The referee and defendants having proceeded upon the strength and good faith of the stipulation entered on the stenographer’s minutes, plaintiff should not bo allowed to renounce it. (Wel. Canal Co. v. Hathaway, 8 Wend., 483; Dezell v. Odell, 3 Hill, 221; Banks v. Am. Tract Soc., 4 Sandf. Ch., 498.)</p> <p>A referee is only entitled to statutory compensation for his services in the absence of a written agreement for greater fees made and signed by both parties or their attorneys. (Chase v. James, 7 N. Y. Wkly. Dig., 415; 16 Hun, 14; Brown v. Windmuller, 36 Sup. Ct. R., 75; 14 Abb. [N. S.], 359; Bliss’ Code, 1085; Shulz v. Whitney, 9 Abb. Pr., 71.)</p>

The nature of the action and the facts appear sufficiently in the opinion. Section 758 of the Code of Civil Procedure is not unconstitutional. (Const. State of New York, Art. 6, § 5; People ex rel. v. Green, 58 N. Y., 295; People ex rel v. Supervisors, 70 id., 229; Hiller v. Railroad Co., 70 id., 227.) It diefnot affect or touch any contract, or impair the obligation of any contract, or repeal any statute under which a vested right existed.

(Reported below, 11 J. & S., 352.) The nature of the action and the facts are set forth sufficiently in the opinion. Plaintiff was obliged to comply with the conditions of the policy, unless performance was excused or waived. (Bliss on Life Ins. [2d ed.], 600; May on Ins., 583; Riddlesbarger v. Hart. Ins. Co., 7 Wall., 386; Roach v. N. Y. and Erie Ins. Co., 30 N. Y., 546; Ripley v. Ætna Ins. Co., id., 136; Ames v. N. Y. Un. Ins. Co., 4 Kern., 255; Gamble v. Accid’t Ass.

The nature of the action and the facts appear sufficiently in the opinion. The lien, if any acquired by plaintiffs’ notice, had expired before the judgment was ■rendered upon it by the General Term in June, 1878. (Laws 1862, chap. 478, § 8; Freeman v. Cram, 3 N. Y., 305; Benton v. Wickwire, 54 id., 226; Sullivan v. Brewster, 1 E. D. S., 686; Schaettler v. Gardiner, 47 N. Y., 404.) The General Term should have ordered a new trial.

This was an equitable action, to restrain the collection of an assessment for a local improvement, i. e., the construction of a sewer in the city of Troy ; and to have the said assessment declared void. Judgment was rendered vacating the assessment and perpetually enjoining and restraining all proceedings for its collection. The facts appear sufficiently in the opinion. If the assessment was illegal the remedy was by certiorari.

<p>An exception, as to language used in a charge, to be available, must present it in the same, or in equivalent words embracing the substance of the charge, and presenting so clearly and distinctly the proposition enunciated by the court that there can be no doubt as to what was actually intended.</p> <p>Where the phraseology of the exception is of doubtful construction, so that it is not easy to determine what is meant, and to say that it applies to any distinct portion of the charge as made, it furnishes no ground for reversal of the judgment.</p>

(Reported below, 12 Hun, 641.) This action was brought to reform a policy of fire insurance, issued by defendant to plaintiff, and to recover upon it as reformed. The facts appear sufficiently in the opinion.) The fact that plaintiff had brought an action upon the policy as it is, and was defeated, is no reason why the policy should not be reformed.

The facts appear sufficiently in the opinion. O’Reilly was an alderman de facto' and de jure of the city of Brooklyn. (People v. Fruger, 24 Barb., 341, 348; People v. Com’rs High., 7 Wend., 474; People v. Suprs. of Sullivan Co., 56 N. Y., 249; People v. Suprs. of Ulster, 32 Barb., 473; People v. Contracting Bd., 20 How.

<p>The determination of the Supreme Court upon a question of vacating a judgment for a mere irregularity, based upon a rule of practice, not a positive statute, and where the party complaining has not been in any way prejudiced, is not re viewable in this court.</p> <p>Accordingly held, that an order denying a motion to vacate a judgment for deficiency in a foreclosure suit, on the ground that the report of the referee who made the sale was not confirmed, and no application for a personal judgment against defendant made, was not reviewable here.</p>

Appeal by John W. Hesse, general assignee for the benefit of creditors and by Herman Odell, his surety, from order of the General Term of the Court of Common Picas, in and for the city aud county of New York, affirming an order of Special Term, which vacated and set aside an ex parte order which relieved the said Hesse. from his trust, discharged him and his sureties from all liability to the creditors aud canceled his bond.

The nature of the appeal and the facts appear sufficiently in the opinion. The order appealed from affected a substantial right, and .is appealable. (Code Civil Procedure, § 190, sub. 2; Fredericks v. Taylor, 52 N. Y., 596.) The objection that the action had not been revived was fatal to plaintiff’s right to the order appealed from.

<p>A purchaser upon a partition sale has a right to require a good title, and will not be compelled to complete his purchase and accept, a deed which leaves him to the uncertainty of a doubtful title, or to the hazard of a contest with other parties which will seriously affect the value of the property.</p> <p>Upon a motion to compel the purchasers upon a partition sale to complete their purchase, it appeared that the premises in question and other real estate were formerly owned by A. and C., as tenants in common. A. died, leaving a will, by which, after bequeathing various legacies, he gave all the residue of his estate, real and personal, to his wife A. L. In pursuance of an agreement between her and 0., partitioning the lands so held in common, A. L. deeded to 0. the premises in question. C. died intestate, and the partition suit was between his heirs. The legatees of A. wore not made parties. The opposing affidavits alleged that none of the said legacies had been paid, and that the estate of A. was insufficient to pay his debts. Held, that an order requiring the purchasers to complete their purchase was improper, as the question as to the lien of the legacies could not be determined so as to be binding upon the legatees who were not parties, and the purchasers might be subjected to the hazard and expense of another litigation; and that the difficulty was not obviated by the fact that a voluntary partition had been made between 0. and A. 1., as the legatees not having assented, and having received no notice, were not bound thereby.</p>

The facts appear sufficiently in the opinion. As to the flagging laid upon the portions of the side-walk not previously covered, this is not a case of “ repave incut ” as contemplated by the statutes. (Rev. Ord., 1859, 237; Rhinelander v. Mayor, 24 How., 304; Matter of Lewis, 35 id., 162; Hammett v. Phila., 65 Penn.

(Reported below, 13 Hun, 43.) . This action was brought to restrain defendant from interfering with the natural flow of the waters of Fish creek, and to recover damages for such interference. Defendant is the owner of a cotton mill situate upon said creek, known as “ Victory Mill,” run by water power from said creek. The dam creates a pond of about an acre in extent.

The deceased was the wife of William A. Coit; they were married in 1827 ; she died in June, 1875, at the age of sixty-seven years, leaving him and eight children her surviv. ing. Her will was executed August 1, 1874 ; she left about $150,000 in real estate. The nucleus of this property originally came from her husband, it being conveyed to her in settlement of a suit she had brought against him for divorce.

<p>Ail action to set aside and cancel a tax, as illegal and a cloud upon plaintiff’s title, cannot he maintained where the sole ground of illegality alleged is that the law, under which the tax was imposed, is unconstitutional ; as, if the tax be invalid, upon the ground claimed, its invalidity will always appear.</p> <p>To authorize an action to cancel a lien upon land as a cloud upon title, the lien must he apparently valid; and must exist, under such circumstances, that it may in the future embarrass the owner or endanger his title.</p> <p>It seems, -that the statutes {§ 112, chap .335, Laws of 1873, as amended by J 20s chap. 757, Laws of 1873; § 1, chap. 779, Laws of 1873), creating a board of estimate and apportionment to ascertain the amounts to be raised by tax for the expenses of the city and county of New York are constitutional</p>

This action was brought by plaintiff as administratrix of Charles McDonald, ■ deceased, to recover damages for his death.

<p>Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, affirming an order of Special Term, appointing commissioners in these proceedings.</p> <p>The facts appear sufficiently in the opinion.</p>

(Reported below, 13 Hun, 543.) The nature of the action and the facts appear sufficiently in the opinion. The breaches of warranties in the second application vitiated the second policy, notwithstanding any knowledge afforded the company on the subject of the diseases therein warranted against by the first application, and regardless of the question of materiality. (Fitch v. American Pop. L. Ins. Co., 59 N. Y., 557; Foot v. Ætna L. Ins.

(Reported below, 13 Hun, 405.) The nature of the action and the facts are set forth sufficiently in the opinion. Defendant’s liability must be considered the same as though he had made, dated and delivered the note to Mr. Pulsifer at Boston.

<p>Reported below, 15 Hun, 559.</p> <p>Decided upon the facts in the case.</p>

This was a motion to substitute one Alexander H. Eisher as plaintiff and respondent herein. Defendant demurred to the complaint on the ground, among others, that said Fisher should have been the plaintiff. The demurrer was overruled, and the case was hero upon appeal from judgment -of General Term sustaining the demurrer.

<p>Reported below 16 Hun, 97.</p>

This was an appeal by defendant and by his attorney from an order of General Term, affirming an order of Special Term, which set oaside an ex parte order vacating a levy under an attachment herein, and which punished the defendant’s attorney for alleged misconduct in procuring the order by requiring him to pay the sheriff’s costs on attachment, and the costs of motion, and to give an undertaking to pay any judgment obtained by plaintiff.

This was an action of trespass for the alleged taiong and conversion of twelve casks of ale. Held: error ; the court laying-down the rule as above. Plaintiff was permitted to show that he kept a storage book, which was a simple memorandum book, keeping- an account of ales stored, and that these ales were entered therein.