Volume 78 — New York Reports

<p>Plaintiff’s complaint alleged, in substance, that defendant executed to it' a lease or agreement transferring the right to collect the wharfage of one of its piers, which defendant was required by law to maintain for the public use; that plaintiff took the lease upon the representation that substantial repairs should be made by defendant, and that plaintiff should not be required to make any save ordinary and usual repairs; that when the lease was made the pier was old and substantially destroyed by natural wear and decay, and defects hidden under the surface of the water; that defendant neglected to make such substantial repairs; in consequence the pier fell, leaving nothing to repair and requiring the erection of an entire new pier, which defendant refused to build, and plaintiff was compelled to rebuild, etc. Plaintiff claimed to recover the cost of rebuilding and the damages. By the lease it was provided that plaintiff should keep the pier in good condition and safe and proper repair, and that all alterations, improvements and repairs of whatsoever nature or kind should be made at its expense, and should revert to defendant at the expiration of the lease. Held, that the complaint did not set forth a cause of action, and a demurrer thereto was, properly sustained; that the alleged representations did not vary or add to, but were merged in the written agreement; that the omission to exercise a power conferred upon defendant to make an improvement was not a cause of action; and, as the complaint alleged that the pier was entirely gone, rendering the construction of a new pier necessary, the case was the same as if no pier had been built, and no duty rested upon it to build one ; but assuming it was the duty of the city, as to the public, to make repairs, and thus maintain the pier, the covenant in plaintiff’s lease requiring it to make all repairs was an answer to any claim on its part for a loss arising from the want of such repairs. As to whether, conceding it to be a legal public duty of the city to rebuild, and that it was not relieved of this duty, as fár as plaintiff is concerned by any agreement, the expense of rebuilding could be recovered against the city, in the absence of any covenant on its part to repair or rebuild or to compensate plaintiff' for so doing, qucBre.</p>

<p>Appeal from order of the General Term of the Supreme Court, in the first judicial department, reversing a judgment in favor of plaintiffs, entered upon a verdict, and directing a new trial. (Reported below, 14 Hun, 83.)</p> <p>The nature of the action and the facts are set forth sufficiently in the opinion.</p> <p>The policy attached immediately upon the lading of the coffee on board at Santos, and without reference to any report, declaration or indorsement of the risk on the policy. (E. Carver Co. v. Manuf. Ins. Co., 6 Gray, 214; Weskett on Ins., 517; 1 Pars. Mar. Ins., 317; 1 Arn. on Ins. [4th ed.], 318; Rolker v. G. W. Ins Co., 4 Abb. Dec., 76.) The first stage of the voyage was identical with the voyage insured, and the vessel not having deviated therefrom, even if the charter party showed an intention to do so, it would not amount to a deviation. (1 Arn. on Ins. [4th ed.], 417; 2 Pars, on Mar. Ins., 5; Hare v. Travis, 7 B. & C., 14; Richardson v. Mar. F. and M. Ins. Co., 6 Mass., 102; Merrill v. Boylston Ins. Co., 3 Al., 247; Lawrence v. Ocean Ins. Co., 11 J. R., 241; Heselton v. Allnutt, 1 M. & S., 46.) The mistake in reporting the shipment as “to Hew York” instead of “to Hampton Bonds for orders,” did not affect plaintiffs’ right to recover. (Robinson v. Tournay, 3 Camp., 158; Ionides v. Pac. F. and M. Ins. Co., L. R. [6 Q. B.], 674; Gledstanes v. Royal Ex. Ins. Co., 5 B. & S., 797; Stephens v. Aust. Ins. Co., L. R. [8 C. P.], 18; 1 Arn. Ins. [4th ed.], 318, 320.) The delay at Hampton Bonds for orders was not a deviation. (Col. Ins. Co. v. Catlett, 12 Wheat., 383; Bain v. Case, 3 C. & P., 496; Oliver v. Md. Ins. Co., 7 Cranch, 490; Coffin v. N. Mar. Ins. Co., 9 Mass., 447, 450; Hamilton v. Sheddon, 3 M. & W., 49; 2 Pars. Mar. Ins., 9, 10, and notes; 1 Arn. on Ins. [4th ed.], 454-458; Grant v. King, 4 Esp., 175; Suydam v. Mar. Ins. Co., 2 J. R., 138; Gilfert v. Hallet, 2 J. Cas., 296.) Unless the court holds as matter of law that the stay at Hampton Bonds was a deviation, the verdict cannot be impugned therefor. (Leggett v. Hyde, 58 N. Y., 272; Slone v. Flower, 47 id., 566; Barnes v. Perine, 2 Kern., 18.)</p> <p>Under the policy as soon as a risk was reported and indorsed upon it, the agreement of the parties was thereby fixed and determined. (Orient Mut. Ins. Co. v. Wright, 23 How. [U. S.], 401, 406; 1 Arn. on Ins., chap. 7, § 2, pp. 174-179.) The detention of the vessel at Hampton Bonds was a deviation which avoided the policy. (1 Pars, on Mar. Ins., 126; Schuylkill Nav. Co. v. Moore, 2 Wheat., 491; 1 Phil, on Ins., §§ 981, 1002; 1 Phil on Ins. [2d ed.], 352; Oliver v. Md. Ins. Co., 7 Cranch, 490; 1 Kay’s Shipmasters and Seaman, 293; Pearson v. Com'l Un. As.Co., 15 C. B. [N. S.], 304, 314; Samuel v. Royal Ex. As. Co., 8 B. & C., 119; Arn. on Ins. [Eng. ed., 1872], 453; King v. Mid. Ins. Co., 1 Conn., 197; Sage v. Mid. Ins. Co., 1 id., 239.)</p>

(Reported below, 12 Hun, 189.) The nature of the action and the facts appear sufficiently in the opinion. It was not necessary for plaintiff to state the grounds of his appeal in his notice. (3 Edm. Stat. at L., 314, §§ 8, 9; 1 R. S. [Edm. ed.], 477, §§ 84-89; People v. Goodwin, 5 N. Y., 568, 573; Lawton v. Com’rs, 2 Cai. Gas., 179; Com’rs v. Judges, 13 Wend., 435; People ex rel.

The nature of the action and the facts are set forth sufficiently in the opinion. The contract being between non-residents, made to be performed in a foreign State, did not give plaintiff a right to a lien in this State. (2 Kent’s Com., 458; Strong on Confl. of Laws, §§ 272, 278; Whitehead v. B. and L. H. R. Co., 18 How. Pr., 218; Campbell v. Props. of C. and St. L. R. R., 18 id., 412; Mullin v. Hicks, 49 Barb., 250; Noble v. Stbt. St. Anthony, 12 Mo., 261; Twitchell v. Stbt.

<p>Appeal from order of the General Term of the Supreme Court, iu the third judicial department, affirming an order of Special Term directing the issuing of a peremptory writ of mandamus directed to the common council of the city of Troy, requiring them to designate The Troy Daily Times, a newspaper of which the relators are the proprietors, as an official paper of the city of Troy. (Deported below, 17 Hun, 20.)</p> <p>The facts appear sufficiently in the opinion.</p> <p>The court below had no power to direct the common council to designate any certain paper named in the writ. (People v. Judges, 20 Wend., 660; People v. Brennan, 39 Barb., 651.) Ho proper case for a peremptory mandamus was presented on behalf of the rélator. (People v. Hoyt, 66 N. Y., 606; In re Gardner, 68 id., 467.)</p> <p>Parties contracting with municipal corporations are bound to take notice of the limitations imposed upon them by law, and any contract contrary to such limitations is void. (Donovan v. N. Y., 33 N. Y., 293.)</p>

This action was brought to recover for the alleged conversion of a quantity of dry goods. The referee found in substance : That the plaintiff, on the 11th day of December, 1875, purchased of E. O. Tuffts & Co., the defendant’s factors, the goods described in the complaint, with a large quantity of other goods, upon five months credit. Plaintiff making and delivering three promissory notes for the purchase-price.

(Reported below, 12 Hun, 524.) This action was brought to recover a balance alleged to be due of the sum stipulated to be paid under a charter-party, executed by the parties, and for expenses and demurrage. The following is a copy of the charter-party. “ This charter-party, made and concluded upon in the city of New York the twenty-seventh day of July, in the year of our Lord eighteen hundred and sixty-five, between J. P. Mantón, agent “for owners of the steamer H. 8.

The nature of the writ sought for and the facts appear sufficiently in the opinion. The relator was entitled to the writ of mandamus asked for. (In re Com’rs of Washington Park, 56 N. Y., 144; Peoples v. City of Syracuse, 20 How. Pr., 491; Harrington v. Com’rs., 22 Pick., 263.) The proceedings to acquire title to the land in question had not progressed so far as to prevent the common council from discontinuing and abandoning them in toto.

The summons in the action was served upon the defendant in the town of New Lots, outside of the city of Brooklyn. Defendant appeared and pleaded to the jurisdiction. The justice overruled the plea and gave judgment for plaintiffs. The jurisdiction of the justice was confined to the city limits by section 35 of chapter 125 of Laws of 1849.

This action was originally brought by plaintiff against the North American Life Insurance Company, upon a policy issued by it on the lile of Nicholas Butterly. By order .of the court, and upon payment of the amount of the policy into court, the present defendant, the widow of the assured, who claimed to be entitled to the fund, was substituted as defendant.

This action was brought upon the following agreement between the parties: “ Philadelphia, July 9, 1868. “ We agree to furnish John Dobson with the following machinery, on terms stated: 16 48-inch and 7 60-inch first Breaker Feeders, at three hundred dollars each delivered at depot at Pawtucket, E. I., to be sent by steamer from Boston to Philadelphia, and allowance of three dollars to ’ be made on each machine for freight.

<p>Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, in favor of defendant, entered upon an order overruling exceptions and directing judgment on a verdict; the exceptions having been ordered to be heard at first instance at Special Term.</p> <p>This action was in the nature of a quo wan'cinto, brought to determine the title to the office of commissioners of excise in the city of New York.</p> <p>The facts appear sufficiently in the opinion.</p> <p>The charier of 1873 superseded the law of 1870, as to tho appointment and terms of office of the excise commissioners. (Laws 1873, chap. 335, §§ 25, 117.) The excise commissioners are local officers. (Acts of 1801 and 1802; Laws 1824, chap. 215; Laws 1825, chap. 196; Charter of 1853; Board of Excise v. Garlinghouse, 45 N. Y., 249, 251; People v. Smith, 68 id., 175, 181; Laws 1874, chap. 642.)</p>

This action was brought upon a promissory note made by defendants, dated April 1, 1867, payable to plaintiff or bearer. The answer admitted the execution of the note and alleged that it was given under the following circumstances, to wit: “ This defendant, George Plainer, at the request of Stephen II. Plainer (now deceased), who was the husband of said plaintiff (said Stephen II.

This action was brought for the alleged conversion of a boat load of wheat. One Brown, who was a commission merchant and dealer in produce at New York, sent the firm of Sears & Daw, grain commission merchants, and his correspondents at Buffalo, an order to buy for him a cargo of wheat.

The facts appear sufficiently in the opinion. The right to bring this • action cannot be barred except by a statute of limitations. (Angelí on Limitation, 11, § 12; 2 Inst., 95; Co. Litt., 115; 4 Rep., 10; People v. Gilbert, 18 J. R., 227; Wilcox v. Fitch, 20 id., 475; Wallv. Robson, 2 Mott & McCord [S. C.],-499; Miner v. Beekman, 14 Abb. [N. S.], 6 [Court App., 1873.].) The doctrine of laches does not apply.

<p>These were appeals by certain policy-holders from an order of the General Term of the Supreme Court, in the first judicial department, affirming an order of Special Term, overruling exceptions to, and confirming the report of a referee, to whom, upon petition of the receiver of said The Security Life Insurance and Annuity Company, it was referred, “ to take proof and report to this court the names of all persons entitled to participate in the fund in the hands of the said receiver, and the respective amounts of their net claims against said fund;” also to “take proof and report to this court, with his opinion, as to what disposition shall be made of any and all premium notes in the hands of said receiver; ” also to “take proof and report to this court, with his opinion, whether any claims against said receiver are entitled to preference in payment, and if so, in what order, and the names of the claimants entitled to such preference; ” also to “take proof and report to this court, with his opinion, as to what dividend should now be declared among the creditors of sai,d Security Life Insurance and Annuity Company from the fund in the hands of said receiver.”</p> <p>The facts appear sufficiently in the opinion.</p> <p>The.policy-holders were partners in the company, and were liable for its losses to the extent of the premiums contributed. (.Mygatt\. JY. Y. Co., 21 Y. Y., 54, 61; In re Ai. L. Ins. Co., 16 Alb. L. J., 453; Qrissils' Case, L. B. [1 Ch.], 528; Kean v. Johnson, 1 Stockt., 401; Collyer on Part., 641, §§ 8, 1079; Kohler v. B. B. Co., 2 Black., 715; A. &. A. on Corp., 591; Bissett on Part., 248; Story on Part., §§ 2, 107-109, 254, 255; Oakley v. Aspinwall, 2 Sandf., 7; Penny v. Black, 9 Bosw., 310; Man. B. Co. v. Bears, 45 Y. Y., 797; Oni. Bk. v. Ilennessy, 48 id., 545; Bullard v. Einny, 10 Cal., 60; Bchimpf v. Lehigh V. Co., 7 Ins. L. J., 665; In re European Co., 5 Bigelow Ins. B., 718; _ZVT Y. L. Ins. Co. v. Btatham, 3 Otto, 24.) The policy-holders were not creditors of the company, within the meaning of the Bevised Statutes, respecting proceedings against corporations in equity. (King v. Ac. L. Ins. Co., 3 C. B. [Y. S.], 151; 5 Bigelow Ins. B., 635; Belknap v. JY. Am. L. Ins. Co., 11 Hun, 282; Bay v. Conn. L. Ins. Co., 19 Alb. L. J., 195; Trenton Co. v. McEelway, 1 Boas., 133; Comm. Co. v. Mass. Co., 112 Mass., 116; 119 id., 45; Mut. Bene. v. Hilyard, 8 Vr., 444.) A member of a corporation cannot sue it at law for something connected with the very contract which makes him a member. (Culburton v. .11 Co., 4 MoL., 544.) All debts of the company must be paid before claims which are not debts shall have any of the fund distributed to discharge them. (Laws 1867, chap. 708; Bay v. Conn. L. Ins. Co., 16 Alb. L. J., 453.) If the policy-holders were entitled to a return of premiums paid in advance, only the proportion unexpired of the period paid for in advance could be returned. (JY. Y. L. Ins. Co. v. Btatham, 3 Otto, 93; McEenty v. Uni. L. Ins. Co., 4 Bigelow Ins. B., 153; Bawls v. Am. Ins. Co., 27 Y. Y., 282.) The policy-holders who had paid ip notes were liable thereon for losses to the full extent of the notes. (Osgood v. Ogden, 4 Keyes, 70; Cony-land v. N. C. Co., Phill. Eq. [Y. C. B.J, 341; Farmers Bk. v. Maxwell, 32 Y. Y., 579; 'Hope M. Ins. Co. v. Perkins, 2 Abb. Ct. of App., 383; Hone v. Allen, 1 Sand., 171; Browner v. Appleby, 1 id., 158; Bestaimes v. Merchants' Co., 1 N. Y., 371; Bangs v. Grey, 12 id., 477; Whiter. Havens, 5 App. Ct. App. Dec.; Cooper v. Shaver, tl Barb., 151; Jackson v. Roberts, 31 IT. Y., 304; Howland v. Meyer, 3 id., 290; Brown v. Crooke, 4 id., 51; Cruikshank v. Browner, 11 Barb., 228; Lawrencev. Nelson, 21 IT. Y., 158; S. C., 4 Bosw., 240; Fanaíen, Ait’y-Genl., v. Aew Jersey Co., opinion by chancellor of IT. J., MS.; Mygatt v. A. Y. (7o., 21 IT. Y.,-57; Laws of 1849, chap. 308; Laws of 1836, 42 and 89, special charter; Laws of 1838, chap. 236, id.; Laws of 1840, p. 262, United I. Co.; Charter of Mutual Life Ins. Co.; Laws of 1842, chap. 246; White v.Haight, 16 N. Y., 321.)</p> <p>The relation between the policy-holder and the company is that of debtor and creditor. (In re Miller, 11 Hun, 98; Cohen v. A. Y. Mut. L. Ins. Co., 50 IT. Y., 624.) The holder of a policy matured by death is entitled to be allowed the face of his policy. (Bell’s Case, L. R. [9 Ecp], 706; Holdrich’s Case, 14 id., 72; U. S. R., § 508.) If the demand of the policy-holder against an insolvent life insurance company is one for damages, policies maturing by death before the distribution should receive a dividend on their face values. (Bell’s Case, L. R. [9 Eq.], 706; Holdrich’s Case, 14 id., 72; Shaw v. Repb. L. Ins. Co., 69 IT. Y., 286; Frost v. Knight, L. R. [7 Exch.], 112; Roper v. Johnson, L. R. [8 C. P.], 167.) In determining the value of a claim the court is not confined to facts known at the date of the receiver’s appointment. (Wilcox v. Plummer’s Exrs., 4 Pet., 172, 182; Sedgw. on Dam., 118, 121, 122.)</p> <p>The holders of current policies wore entitled to the unearned portion of the premiums paid. (Widows’ Fund Assn., 17 Ves., 17; Pearce v. Piper, lid., 17; Beaumont v. Meredith, 3 Y. & B., 181; Statham v. N Y L. Ins. Co., 3 Otto, 24; Fischer v. Hope Mut. Ins. Co., 69 N. Y., 161.) Such policyholders are entitled to a position as creditors for the reserve nncarned. (Bell’s Case, 7 Eq., 709; Lancaster's .Case, 2 Cairn’s Dec., 81; Hine’s Ins. Statutes, §§ 17, 32, 33, 56; Laws 1869, chap. 161; Leroy v. Globe Ins. Co., 2 Edm. Chy., 673, 674; Croton Ins. Co. Case, 3 Barb. Chy., 643.) The policy-holders were not partners in the company. (.Mygalt v. JST. Y. Pro. Ins. Co., 21 N. Y., 52; White v. Ilaight, 17 id., 310.)</p> <p>The order of General Term was appealable, all the persons entitled to share in the fund having been regularly brought into the proceeding and before the court. (3 R S. [6th ed.], 751, §§ 69, 107.) The death claims are not entitled to priority in payment. (11 Hun, 96; Lowerre v. Am. F. Ins. Co., 6 Paige, 482; He Peyster v. Am. F. Ins. Co., id., 486; Fisher v. Hope Mat. Ins. Co., 69 1ST. Y., 161.) The relation of the policy-holders to each other was not that of co-partners. {Baldwin v. Burrows, 47 N. Y., 199; Ogden v. Astor, 4 Sand., 311; Patterson v. Blanchard, 1 Seld., 1.86.) If the premium notes are not to be set-off they are not collectible. (3 It. S. [6th ed.], 41; Osgood v. He Groot, 36 N. Y., 348.)</p> <p>The referee was right in excluding all policy-holdc, 3 and creditors who did not make any claim within the advertised period of six months. {Harmony F. and Mar. Ins. Co., 45 1ST. Y., 313, 317; 9 Abb. Pr. [N. S.], 349, 350, 358; 2 R S. [2d ed.], 380 [m. p. 466].) The referee properly held that the notes and other obligations given for premiums and the deferred premiums should be offset pro tanto against the net values of note policies or other claims against the company. (2 E. S., 47, § 36; In re Globe Ins. Co., 2 Edw. Chy., 625.) The provision of the Eevised Statutes (2 E. S., 470, § 75), which authorizes receivers to cancel any contingent contract by consent of the party holding it, was designed to cover only cases of fire and marine insurance premiums. (Eeviser’s note to § 75 [5th ccl.], 744; Laws 1821, chap. 148; Laws 1817, chap. 146 ; Laws 1814, chap. 172 ; Act of 1886, passed January 18, 1836; In re Qroton Ins. Go., 3 Barb. Chy., 643.) Death claims were not entitled to priority over other debts and liabilities of the company. (2 R. S. [Edm’s ed.J, 484, § 37; id., 486, § 48; id., 492, §§ 72-75, 77-79; id., 89, § 28; Lowerre v. Am. F. Ins. Go., 6 Paige, 485; He Peyster v. Am. F. Ins. Go., id., 486; Morgan v. N. F. and A. IÍ. P. Go., 10 id., 290; Iline's Ins. Laws, 104, § 32; 16 Assurance Mag., 395.)</p>

These are appeals from judgments of the General Term of the Supreme Court, in the second judicial department, affirming judgments in favor of plaintiff, entered upon decisions of the court on trial without a jury. (Reported below, 13 Hun, 298.) The nature of the actions and the facts are set forth sufficiently in the opinions. All assignments by a corporation giving preference are void.

The nature of the appeals and of the action, and the facts, are set forth in the opinion. (The decision below upon defendant’s appeal reported, 13 Hun, 321.) The defense of usury, being a personal defense, was not available to Ruea Nelson.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, affirming a judgment in favor of defendant, entered upon the report of a referee. (Mem. of decision below, 12 Hun, .374.) . ¡.</p> <p>This action was brought to stay the foreclosure (statutory) of a certain mortgage executed by one Roberts to defendant, and to have the same satisfied and canceled of record upon the ground that the same had been paid.</p> <p>Plaintiff was the owner of the equity of redemption. The question was as to a payment indorsed upon the mortgage. Defendant claimed that the mortgagor gave his note for the amount indorsed, which he did not pay. Upon the trial of the action defendant called one McDougall as a witness and was permitted to prove by him, under objections and exceptions, declarations of Roberts to the effect that he had given to the mortgagor a note of $1,000, which was indorsed upon the mortgage, but which he did not pay, and that defendant had taken it up. Roberts was, at the time of the trial, deceased. McDougall held an interest in a subsequent mortgage executed by Roberts, which was foreclosed, and plaintiff claimed title under the foreclosure sale.</p> <p>The admission of the testimony of McDougall, as to a conversation he claimed to have had with the mortgagor, who was dead at the time of the trial, was error. (Page v. Cogwin, 7 Hill, 361; Beach v. Wise, 1 id., 612; 2 Story’s Eq., §§ 1225, 1228, 1232; 4 Kent’s Com., 152; 15 Yes., 329; 2 Mad. Ch. Pr., 128; Dart on Yen. & Par., 118, 119; Bayley v. Greenleaf 7 Wheat., 46; 1 Willard on Beal Estate, 115; Burlingame v. Bobbins, 21 Barb., 327; Wilson v. Boerem, 15 J. B., 289; PenfieM v. Carpenter, 13 id., 350; Irvine v. Cooh, 15 id., 239; People v. Parish, 4 Den., 153; Jones v. Ilulburt, 39 Barb., 403; Phillips v. Thompson, 1 Johns. Ch., 131; Harris v. .57y, 1 Seld. Botes, 35; Gray v. Goodrich, 7 J. B., 95; Kent v. Walton, 7 Wend., 256; Waring v. Worren, 1 J. B., 340; White v. Chouteau, 10 Barb., 202; People v. Blalceley, 4 Park., 185; Burlingame v. Bobbins, 21 Barb., 327; Carter v. Buchanan, 9 Ga., 539.) Improper testimony having been received bearing upon the result of the case, a new trial should be had. (Worrell v. Parmalee, 1 B. Y., 519; IF17-?faros v. Fitch, 18 id., 546; Baird v. Gillett, 47 id., 186; People v. W??ey, 3 Hill, 194, 214; Morquard v. Webb, 16 J. B., 90; Osgood v. President, etc., 3 Cow., 612; Hawley v. Hatter, 9 Hun, 134; Starbird v. Barrons, 43 B. Y., 200; Forrest v. Forest, 25 id., 510; Clapp v. Fullerton, 34 id., 195; Bennett v. Austin, 5 Hun, 540; Platt y. Platt, 2 B. Y. Sup. Ct., 26; PattersonY. Copeland, 52 How., 461; Church v. JT?dd, 10 B. Y. Sup. Ct., 254, 267.)</p> <p>The receipt by defendant, indorsed on the mortgage given in evidence by plaintiff, was only presumptive evidence that it was for money; it could be explained by parol. (Howard v. Horton, 65 Barb., 161; Foster v. Hewburg, 58 B. Y., 481; Darnellv. Morehouse, 36 How., 511; Wadv. Murray, 13 B. Y., 167; HUIy. Beebe, 13 id., 556.) The giving of a note by a debtor to his creditor is no payment. (Hoel v. Murray, 13 B. Y., 167; Coe? v. SacJcett, 1 Hill, 516; Way dell y. Luer, 5 id., 448; Elwood v. Biefendorf¡ 5 Barb., 398; 53 id., 191; 36 How., 511; 38 H. Y., 289.) The declarations of Roberts, testified to by McDougall, were competent to show'his interest in the real estate, not only against him, but against all claiming under him. (Padgett v. Lawrence, 10 Paige, 170; Jackson v. Vredenburgh, 1 J. R., 159; Jackson v. Baird, 4 id., 230; Pitts v. Wilder, 1 N. Y., 525; Burlingame v. Bobbins, 21 Barb., 327; Sheldon v. Van Slyke, 16 id., 26; Jackson Y, Gole, 4'Cow., 587; 36 N. Y., 478, 482.) When all the evidence in a case comes up before the court on appeal and it appears that justice has been done, the judgment will not be reversed even if evidence has been erroneously admitted, provided it would not have changed the result. ( OaryY. Sprague, 12 Wend., 41; Gardiner v. Titus, 21 id., 169; Stiles v. Til-ford, 10 id., 338, 340; Suprs. v. Birdsell, 4 id., 453, 458; Burt v. Smith, 5 Barb., 283; Smith v. Kerr, 1 id., 155; 56 1ST. Y., 664, 665; 38 id., 210.)</p>

<p>These are appeals from judgments of the General Term of the Supreme Court, in the first judicial department, affirming judgments entered upon decisions of the court on trial at Special Term.</p> <p>The action first entitled was brought to restrain, and the judgment therein did restrain defendant, The Quicksilver Mining Company, from converting or agreeing to convert the shares of its stock known as common stock into preferred ' stock, and from issuing any further preferred stock, and the individual defendants from converting any of the common stock into preferred stock. (Reported below, 12 Hun, 53.)</p> <p>The second action was brought for an' accounting by said ' company, and for a distribution of the net earnings as follows: To pay first to the preferred stockholders seven per. cent per annum upon the amount of their stock, the residue to be divided pro rata among the holders of the common and preferred stock.</p> <p>The third action was brought to restrain said company from paying, and the individual defendants, holders of preferred stock, from receiving, any sums as interest or as dividends in excess of dividends paid on the common stock; to restrain said company from issuing any further preferred stock; to have the preferred stork already issued declared illegal, and for an accounting and distribution of the net. earnings equally among the stockholders. The judgment dismissed plaintiff’s complaint, adjudged the preferred stock to be legal and valid, and its holders entitled to the preference it purported to give, and directed the said company to account and to distribute its net earnings accordingly. (The last two cases reported in 17 Hun, 169.)</p> <p>The material facts found were substantially as follows: The Quicksilver Mining Company is a corporation created by a special act of the Legislature of the State of Hew York, passed April 10th, 1866 (chap. 470, Laws 1866, p. 1021), “for the purpose of holding and improving lands in California, or elsewhere, and obtaining therefrom minerals and other valuable substances, and disposing of the products of such lands, mines and works.”</p> <p>Section two of the charter is as follows :</p> <p>“Section 2. The said company shall have power to make such by-laws as they may deem proper, to enable them to carry out the objects of the corporation, and the same to alter, amend, add to, or repeal, at their pleasure, provided that such by-laws shall n.ot be contrary to the constitution of this State, or the provisions of this act, and to adopt a common seal, and the same to alter at pleasure, and to issue certificates of stock, representing the value of their property, in such form, and subject to such regulations, as they may, from time to time, by their by-laws prescribe, and to regulate and prescribe in what manner and form their contracts and obligations shall be executed.”</p> <p>The charter contains no further provision in respect to the capital stock. The company adopted the following by-laws, among others.</p> <p>“ Four. Certificates of stock, amounting to $10,000,000, shall represent the value of the property of the corporation, and the capital stock shall be divided into 100,000 shares of $100 each.</p> <p>“ Five. The said certificate shall be in such form as shall be prescribed by the board of directors.</p> <p>“ Six. All certificates shall be registered on the books of the company when issued. No certificate shall bo transferable, except on the books of the company, or of an agent appointed by the board of directors for that purpose. Every share of stock shall entitle the holder thereof to one vote at all meetings of the corporation, and may be voted on by proxy in the usual form.</p> <p>“ Seven. The contracts and obligations of the company shall be made and executed in such manner and form as the directors may determine.</p> <p>“ Eleven. No dividend shall be made except from actual surplus profits, and these profits (except a reasonable reserve fund), shall be divided as often as once in six months. All dividends shall be payable at the office of the company, in New York.</p> <p>“ Fourteen. The directors may, from time to time, on the credit and responsibility of the company, borrow such sums of money as they may deem consistent with the interests of the company, and as a security for the repayment of such loans, they shall have the authority to issue notes of the company, and to pledge or mortgage any shares of stock or other estate, personal or mixed, belonging to the company.</p> <p>“Sixteen. These by-laws may be altered, amended or\ repealed, at any regular or special meeting of stockholders, \ by a vote of a majority in interest of all the stockholders.”</p> <p>The capital stock authorized by the fourth by-law was issued in one certificate to William Bond, president, and George J. Forest, treasurer of the Quicksilver Mining Company of Pennsylvania in payment for mining property purchased of the Pennsylvania company, and for the purpose of being distributed among the holders of the stock of that company, share for share.</p> <p>At the annual meeting of the stockholders of the company, held pursuant to notice as required by the by-laws; on the fourth Wednesday of February, 1870, the following amended by-laws and resolutions were adopted by a unanimous vote of 75,658 shares:</p> <p>“By-law IV. Certificates of stock amounting to §10,000,000 shall represent the value of the property of •the corporation, and the capital stock shall be divided into 100,000 shares of §100 each. Certificates of stock upon which five dollars (§5) per share shall be paid, shall be distinguished as preferred stock.</p> <p>“ By-law No. XI. The preferred stock shall bo entitled to interest at the rate of seven per cent per annum, from the 1st of May, 1870, to be paid annualy out of the net earnings of the company for each year. Should there remain a surplus of earnings after the payment of the said interest upon the preferred stock, then this surplus shall be divided pro rata among the holders of preferred and common stock, in proportion to their several interests.</p> <p>“ Resolved, That a preferred stock of the company be issued in shares of §100 each, and that the treasurer be directed to. open books at the office of the company in the city of Xew York, and to receive subscriptions to said preferred stock. Such subscriptions shall be received only from the holders of the common stock of the company on their surrendering to the company common stock, and paying to the treasurer five dollars on each share of stock surrendered.</p> <p>“The common stock so surrendered shall be canceled before the issue of the preferred stock, share for share.</p> <p>“ Resolved, That the books for subscription to the preferred stock shall be closed by the board of directors whenever the interests of the company, in their opinion, will be promoted by so doing.”</p> <p>Books for subscription were accordingly opened, circulars containing the amended by-laws and resolutions were distributed to the stockholders, and notices were published in the Xew York daily papers. Owners of common stock to the amount of 42,913 shares subscribed for a corresponding number of shares of preferred stock, surrendered their said shares of common stock, and paid to the company the sum jaf five dollars on each share so surrendered ; and the company thereupon issued and delivered to them certificates of shares of preferred stock, in which it was stated that such stock was entitled to the preference, specified in said amended by-laws. Since that time the two forms of certificates have been issued and continue to be issued by the company upon the surrender of like certificates for transfer ; and the entire capital stock of the company, both common and preferred, has been transferred and the certificates thereupon surrendered and new certificates issued corresponding to those surrendered. Since May, 1870, the stock of the said company has been regularly called at the Stock Exchange in the city of Now York, and there openly bought and sold in the usual manner under two designations, viz.: “ Quicksilver Common ” and “ Quicksilver Preferred,” and upon such sales the price of “ Quicksilver Preferred” has always been in advance of “ Quicksilver Common,” and reports of such calls, purchases and sales of said stocks have been regularly made by the Stock Exchange and published in the daily papers in the city of Now York. The sum realized from subscriptions to the preferred stock was appropriated by the company to the payment of its current expenses, the interest on its mortgage debt and of judgments, for which the company was liable.' At the annual meeting of the stockholders in" February, 1871, the report of the president was submitted, stating that the by-laws authorizing the preferred stock were adopted at the last annual meeting by a unanimous vote of 75,658 shares, giving a complete copy of such by-laws, with a detailed statement of the amount received for subscriptions to the preferred stock and the disbursement of the same, and also showing the number of shares of common and of preferred stock. This report was by resolution approved, and the same with accompanying statement was directed to be published in pamphlet form for the information of the stockholders. Annual reports were presented and accepted at the annual meeting of the stockholders, held in the month of February in each of the years 1872, 1873, 1874, 1875, 1876 and 1877. Such reports were printed pursuant to resolutions adopted at the annual meetings, and were distributed to stockholders and other parties interested. At the annual meeting of the stockholders, held on the 24th of February, 1874, the following preamble and resolutions were adopted by a vote of 68,274 shares in the- affirmative to 2,500 in the negative :</p> <p>Whereas, at a meeting of the stockholders, held February 24, 1870, a resolution was adopted giving the privilege of conversion into preferred stock to the holders of the common stock of the company upon the payment of five dollars per share for each share of common stock so converted, and that the option of such conversion was duly closed by the directors on the eighteenth of April following, at which time 42,913 shares of preferred stock had been, issued as above provided.</p> <p>“ And, whereas, from the report of the president, submitted to this meeting, it seems desirable that previous to the payment of dividends the same privilege of conversion should be extended to the holders of the 57,087 shares of the common stock now outstanding, it is hereby - “ Eesolved, That the company will issue its preferred stock to the holders of the common stock of the company, share for -share, upon the surrender of such common stock, and the payment, at the time of issue, of five dollars, and interest from February 24, 1870, upon each share of stock so surrendered.</p> <p>■ “ Eesolved, That the common stock so exchanged shall be canceled previous to the issue of preferred stock, share for share.</p> <p>“ Eesolved, That the directors be hereby authorized at their option, to close the books of the preferred stock for the purpose of this exchange whenever, in their judgment, the interest of the company will bo promoted thereby, giving days’ notice"previous thereto.”</p> <p>Previous to the sixteenth day of November, when the action of Hoyt v. The Quicksilver Mining Cotnpany was commenced, no suit or legal proceeding of any kind was brought by any common stockholder to restrain the issue of said preferred stock, or to have the same declared invalid, or to prevent the carrying out of the contract with the preferred stockholders ; nor previous to the said meeting of stockholders in November, 1874, was any written protest or statement made in reference to the preferred stock, nor previous to that meeting was any serious or public objection to said preferred stock ever made, or any serious or public question as to its validity raised by any stockholder.</p> <p>The contract for a preference is not such an one as equity will execute. (Story’s Eq. Jur., § 769 ; Ery on Spec. Perf., §§ 251, 252.) The contract for preference having been one in contravention of law and public policy is illegal. (EgerIon v. Earl Brownlow, 4 II. of L. 11., 1, 131, 155, 164, 203 ; Smith on Contracts, Chap, on Illegal Contracts, Metcalf on Contracts, chap. 4 ; Bishop on Contracts, chap. 12; Farrington v. Tennessee, 5 Otto, 679, 686, 687.) All stock created and contracts made by corporations contrary to the fundamental provisions of their charters are illegal and void. (People v. Utica Ins. Co., 15 J. B., 382, 384; City Bk. Columbus v. Bruce, 17 N. Y., 507; New II. II. Co. v. Mechanics' Bank, 13 N. Y., 599; N. II. B. Co. v. Schuyler, 34 N. Y., 30; II, and N. IT. Co. v. Croswell, 5 Hill, 383, 386; Railway Co. v. Allerton, 18 Wallace, 233; In re Bangor Co., L. B. [20 Eq. Cas.], 59, 65; Hutton v. Scarborough, Co., 4 De Gex, J. & S., 677; Salem Mid-lam Co. v. Roper, 6 Pick., 26; Ilnowlton v. Congress and Imp. Spring Co., 57 N. Y., 534; Riche v. Ashbury Co., L. B. [7 Eng. and L. App.], 653; Mutual Life Ins. Co. v. MeEelway, 1 Beasley Ch. B. [N. J.], 133; Crocker v. Whitney, 71 N. Y., 161; Ang. & A. on Corp., § 256; Johnsonv. Bush, 3 Barb. Ch. B., 207; Talmage v. Pell, 3 Seld., 328; Leavitt v. Palmer, 3 Comst., 19; Huntington v. Sav. Bk., 6 Otto, 388; Barry v. Merch. Exch. Co., 1 Sandf. Ch. B., 280, 310, 311; Wordsworth Joint Stock Case, 74, citing Moss v. Lyers, L. J. Ch. R., 711, for 1863; In re Comstock, 3 Sawyer, 218; Lemple v. Bank Brit. Columbia, 6 Reporter, 9; Carpenter v. Black Hawk Mining Co., 65 R. Y., 43; Commonwealth v. Smith, 10 Allen, 448; Iiichardson v. Libby, 11 id., 65.) The doctrine that presumptions arc to be made in favor of acts done “in apparent pursuance of a general authority” is inapplicable to this case. (Payne v. Burnham, 62R. Y., 73; ZabrislcieY. ClevelandB. Co. 13 IIow. [U. S.], 398; Lowry v. Inman, 46 R. Y., 125.) The contract being illegal, it could not be made valid by a ratification ; and in this case no ratification could be presumed. (Payne v. Burn-ham, 62 R. Y., 79.)</p> <p>The issue of the “ preferred stock ” attempted by the Quicksilver Mining Company by the resolution passed at the stockholders meeting in February, 1870, was without authority and illegal. (12 Hun, 53, 59; Laws 1853, chap. 333, p. 705, § 2; Boynton y. Hatch, 47 R. Y., 225; Scheneck v. Andrews, 57 id., 133; PeopleY. Troy House Co., 44 Barb., 625, 634; Brick Church v. Mayor, 5 Cow., 540; McDermott v. Board of Met. Police, 25 Barb., 635; People v. Manhattan Co., 9'Wend., 351, 384; Baptist Church y. Brooklyn F. Ins. Co., 19 R. Y., 305, 306; Potter on Corp. [1879], § 254; People v. Corns, of Taxes, 23 R. Y., 192, 219; Livingston v. Lynch, 4 Johns. Chy., 537, 573, 594, 597, 599; Hutton v. Scarboro Cliff Co., 2 D. &. Smales, 514; 13 Weekly Reporter, 631; Vermont and Canada B. B. Co. v. Vermont Cent. B. B. Co., 34 Yt., 1, 50; Bank of Attica v. Manufacturers’ Bank, 20 R. Y., 301; Miller v. Cook, L. R. [10 Eq.], 639-646; Tyler v. Yates, L. R. [11 Eq.], 265; Plumbe v. Carter, note to Floyer v. Edwards, Cowp., 116; Jestons v. Brooks, id., 793; Bowes v. Heaps, 3 Y. & B., 117.) The “ preferred stock ” could not be upheld as issued in the exercise of the power of the corporation to borrow money. (Taft v. Hartford, Prov. and Fishkill B. B. Co., 8 R. I., b. 10; Williston v. Mich. So. and FT. Ind. B. B., 13 Allen, 400; Jones v. Terre Haute and Alton 11. R. Oo., 57 E. Y., 196; Evansville R. R. Co. v. City of Evansville, 15 Md., 395, 415; MoLoughlin v. Detroit R. R. Co., 8 Mich., 103; Ilasellmrst v. Savannah R. R. Co., 43 G-eo., 53; Bates v. Androscoggin and Kennebeck R. Co., 49 Me., 491; Lockhart v. Alstyne, 31 Midi., 77-79.) The assignees of the parties who advanced the $214,565 and took the illegally issued certificates have no greater or better title than their assignors, they are simply their successors in the same interest. (.Mechanics’ Bank v. N. Y. and JY. JJ. R. R. Co., 13 E. Y., 599; McOready v. Rumsey, 6 Ducr, 574; Ketcham v. Bank of Commerce, 19 E. Y., 499, 511; Hughes v. Vermont Copper Mining Co., 72 id., 207—210; 56 id., 623.) The attempted issue of the “ preferred stock ” being invalid and void the common stockholders are not barred from asserting its invalidity by any supposed assent, acquiescence or lapse of time. (Livingston v. Lynch, 4 Johns. Chy., 597; Ashbury Railway Carriage Co. v. Riche, L. B. [7 Eng. and I. App.], 653; Ilouldworth v. Evans, L. E. [2 H. L.j 249; Lord Hatherly, 687; Ormsbey v. Vermont Copper Mining Co., 56 E. Y., 623; Eslanger v. New Sombroro Phosphate Co., L. B. [3 App.], 1208; Imperial Bank Hindostán, L. B. [6 Eq.] 91; Salem Milldam Co. v Roper, 6 Pick., 23.) The judgment in the first suit of Kent v. Quicksilver Mining Company is not a bar to the relief sought in this action, no question being raised as to the right of the “ common stockholders.” (Coke Litt., 35'2 a; Campbell v. Hall, 10 E. Y., 575; Scofield v. Churchill, 72 id., 565-570; Castle v. Noyes, 14 id., 329, 335.) The preference contract being illegal cannot be enforced at law by holders of the “ preferred stock.” (Knowlton v. Congress and Empire Spring Co., 5 E. Y., 518.) As up to the commencement of this action no dividend or payment of interest on the preferred stock had been made no right has been acquired by any holder of the “ preferred ” certificate or any assigns of such holder to any specific part of the corporate property or earnings. (Jones v. Terre Haute and Richmond R. R. Co., 57 E. Y., 196, 206; Brown v. Collins, L. B. [12 Eq.], 594; Hyatts. Allen, 56 JST. Y., 553-557 cases; Ketcham v. Bank of Commerce, 19 id., 499; Allen v. Dykers, 3 Hill, 593; Horton- v. Morgan, 19 N. Y., 170; 46 id., 143; In re Magdalen Steam Nav. Co., J. E., 690.)</p> <p>The suit of Kent was maintainable as in the nature of a bill of peace. (Story’s Eq. Jur., § 854; Prouty v. Mich. 8. and N. I. P. R. Co., 1 Ilun, 666; Williston v. Same, 13 Allen, 400; Routon v. City of Brooklyn, 15 Barb., 392; Henry v. Great Northern Ry. Co., 1 De Gex & Jones, 606.) Under the provisions of its charter, the Quicksilver Mining Company was invested with a general authority to create preferred stock. (2 Ecdf. on Railways [3d ed.], 598; Ilazelhurst v. Savannah R. R., 43 Ga., 53; Prouty v. Mich., etc., R. R. Co., 1 Ilun, 663, 664; Rutland, etc., R. R. Co. v. Thrall, 35 Yt., 545, 546; Lockhardt v. Van Alstyne, 31 Mich., 81-84, 85; Bates v. Androscoggin, etc., R. R. Co., 49 Me., 491; Westchester, etc., R. R. Co. v. Jackson, 77 Penn., 321; Evansville R. R. Co. v. Evansville, 15 Md., 395; Richardson v. Vt. and Mass. R. R. Co., 44 Yt., 613; McLaughlin v. Detroit and Mich. R. II. Co., 8 Mich., 100; Brice’s Ultra Yires [2d ed.], 59; Taylor v. Chichester, etc., R. R. Co., L. R. [2 Exeh.], 384; Curtis v. Leavitt, 15 H. Y., 66, 67; In re Patent Pile Co., L. R. [6 Ch.], 88; 1 Lindlcy on Partnership, 4; Riche v. Ashbury Co., L. R. [7 Eng. & Irish App.], 653; Kent v. Quick. Mining Co., 12 Hun, 57; Warner v. Mower, 11 Yt., 392; 1 Potter’s Law Corp., 436; Bindley on Partnership [3d ed.], 285; Twin Lick Oil Co. v. Marbury, 1 Otto, 589; McLaughlin v. Detroit R. Co., 8 Mich., 100, 103; St. John v. Erie R. Co., 10 Blatch., 279; Green’s Brice’s Ultra Yires, 147.) The general authority conferred by the charter to create preferred stock, and the regularity of this issue created a presumption of validity upon which subsequent purchasers had a right to rely, and .which in the present position of parties cannot be questioned. (Chautauqua Co. Bk. v. Risley, 19 N. Y., 381; Wilmarth v. Crawford, 10 Wend., 344; Bh. of U. 8. v. Dandridge, 12 Wheat., 70; Nelson v. Baton, 26 N. Y., 410; All Saints’ Church v. Lovett, 1 Hall, 221; Monument Nat. Bh. v. Globe Works, 101 Mass., 57; Eastern Go. B. Co. v Ilawkes, 5 IIo. Lords, 373, 381, 382; Boyal Brit. Bk. v. Turquand, 6 Ellis & Blackburn, 332; Cam’rs of Knox Co., Ind., v. Aspinwall, 21 How. [U. S.], 545; Miners’ Bitch Co. v. Zellerback, 37 Cal., 579; IIoTbrook v. N. J. Zinc Co., 57 N. Y., 621, 622; Bissell v. Mich. So. and N. I. B. B. Co., 22 id., 290; Webb v. Herne Bay Com’rs, L. R. [5 Q. B.], 642; F. and M. Bk. v. B. and Drovers’ Bk., 16 N. Y., 137; N. T. and N. II. B. It. Co. v. Schuyler, 34 id., 70, 73; Zabriskie v. Cleveland, etc., B. B. Co., 23 How., 400, 401; Goulding v. Davidson, 26 hi. Y., 622; Lowell v. Daniels, 2 Gray, 161; Keen v. Coleman, 30 Penn., 299; Bodine v. Killeen, 53 hi. Y., 98.) The presumption of validity, arising from the general authority to create preferred stock, and the regularity of this issue, is confirmed, and the restraint upon the company, if it existed at all, has been rendered inoperative as to the existing preferred stock by the conduct of the stockholders. (12 Hun, 60; Ilazlehurst v. Savannah B. B. Co., 43 Ga., 53; Bissell v. Mich. 8. etc., B. B. Co., 22 N. Y., 269-276-277; Whitney Anns Co. v. Barlow, 63 id., 68, 69; Ashbury, etc., Co. v. Biche, L. R. [7 Eng. & I. App.], 680; De Graff v. Arner. Linen Thread Co., 21 hi. Y., 127; Bradley v. Bullard, 15 111., 417; Zabriskie v. Cleveland, etc., B. B. Co., 23 How. [U. S.], 395-398; Twin Lick Oil Co. v. Marbury, 1 Otto, 592; Bruce v. Davenport, 3 Keyes, 474; Cairncross v. Lorimer, 3 Macquecn R., 830; London Permanent Benefit Build. Soc., 17 Wkly. R., 514; affirmed, 21 L. Times [U. S.], 8-10; Society for Savings v. City of New London, 29 Conn., 174; Evans v. Smallcombe, L. R. [3 II. L.], 240; Spachman v. Evans, id., 171-253- 255; Phosphate of Lime Co. v. Green, L. R. [7 C. P.], 43; Pay son v. Stoever, 2 Billion, 433; 3 II. L., 193-247-256-257; L. R. [7 Eng. & I. App.], 600; L. R. [7 C. P.], 62-63.) The minutes of the company were properly admitted in evidence. (Highland Turnpike Co. v. McKean, 10 J. R., 154; Hamilton, etc., Co. v. Bice, 7 Barb., 162; Aberneihy v. Society, etc., of Puritans, 3 Daly, 5; 1 Greenl. on Ev., § 493, p. 115; 2 Pliill. on Ev., 249, note, 343; Commonwealth v. Wollper, 3 Serg. & Rawle, 29; Grays v. Turnpike Co., 4 Sand., 578; Wood v. Jefferson Co. Bh., 9 Cow., 194-205.) The judgment in Kent v. Quicksilver Mining Company was properly admitted in evidence. (Doty v. Brawn,A E. Y., 74; Burchard v. Dias, 3 Den., 238; Castle v. Noyes, 14 E. Y., 331; Miller v. 1VIdie, 50 id., 141; Hastings v. Drew, 4 E. Y. Wldy. Dig., 469.) The intended issue of additional preferred stock was clearly in violation of the contract with the preferred stockholder, and the judgment restraining such issue should be sustained. {Campbells. London, etc., B. Co., 5 liare, 129.; 2 Redf. on Railways [5th ed.], 527, § 237, sub. 2; Pearson v. London and Croydon B. Co.,-14 Simons, 541; Kent v. Quicksilver Mining Co., 12 Hun, 61; McLaughlin v.' Detroit B. Co., 8 Mich., 103; Ins., Co. v. Connor, 17 Penn., 136-143; Westchester, etc., B., Co. V.- Jackson, 77 id., 321; Frazier v. Wholly, 2 Hemming & Miller, 10; Smith v. Cook, etc., By. Co., Irish R. [3 Eq.], 374.)</p> <p>The company was authorized by its charter (Laws 1866, chap. 470) to create preferred stock. (12 Hun, 53, 57, 60.) This right was not impaired by the act of the company in originally fixing the amount of the capital, provided the consent of its stockholders was obtained. (A. & A. on Corps. [10th ed.], § 329; King v. Ashwell, 12 East; "22; Bex v. Westwood, 4 B. & G, 806; B. Co. v. AUerton, 18 Wal., 233; 12 Him, 57, 59, 61; Prouty v; Mich. So. and N. I. B. B. Co., 1 id., 662.) To authorize the creation of preferred stock under the charter, it was not necessary that the power should be given in express words. Harrison v. Mex. B. Co., 12 Eng. R. [Monk’s Rotes], 793; Yield on Corps,, 136, § 121; Brice on Ultra Vires [2d Eng. cd.], 365; Redf. on Railways, § 237.) Unless expressly restrained by its charter, a corporation, with the consent of its stockholders, has the inherent power to issue preferred stock as an incident to the power to borrow money. (Brice Ultra Vires [2d. cd.], 59, 270, 281; Redf. on Railways, 237; Field on Corps., 136; Green’s Brice’s Ultra Vires, 147, and note; Lockhart v. Van Alslyne, 31 Mich., 76; Hazelhurst v. Savannah JR. Go., 43 Ga., 13; Tottan et al. v. Tison et al., 54 id., 139; Westchester and Phil. R. R. Go. v. Jackson, 7 Legal Gaz., 53; 77 Penn. St. R., 321; Bates v. Androscroggin and Kennebec R. R. Go., 49 Me., 491-492; Rutland, etc. R. R. Go. v. Thrall, 35 Vt., 534; Davis v. Props, of Meeting House, etc., 8 Metcl., 321; Willeston v. Mich. So. and H. Ind. R. R. Go., 13 Allen, 400; Prouty v. Mich. 8. and W. I. R. R. Go., 1 Sup. Ct. E., 655 662; Evansville, etc. R. Go. v. Gity Evansville, 15 Ind., 395; Gurtis et al. v. Leavitt, 15 N. Y., 9; Farmers’ Loan and Trust Go. v. Glowes, 3 id., 470; Farmers' Loan and Trust Go. v. Gurtis, 7 id., 466; Gity B’k of Columbus v. Bruce, 17 id., 507; Alcottv. Tioga R. Go., 27 id., 546; Hope Mut. Life Ins. Go. v. Perkins, 38 id., 404; Meech v. Gity Buffalo, 29 id., 198; Munford American Life Ins. and Trust Go., 4 id., 463; De Ruglers v. St. Peter’s Qhurch, 3 id., 238; Re Anglo Danublan Steam Wav. Co., L. R. [20 Eq.], 339; Green’s Brice’s Ultra Vires, note; McLoughlin v. Detroit R. R. Go., 8 Mich., 100; Re London India Rubber Go., L. R. [5 Eq.], 519; Re Bangor, etc. Slab Co., L. R. [20 Eq.], 59.) Even if the act of issuing the preferred stock was ultra vires, the company and its stockholders arc estopped now from questioning its validity. (Goleman v. Eastern Counties R. Go., 10 Bcavan, 1; Whitney Arms Manuf. Go. v. Barlow, 63 N. Y., 62 ; Brice’s Ultra Vires [2d ed.], 50, 763, § 259; Parish v. Wheeler, 22 N. Y., 494, 506-507; Smith v. Gity Albany, 61 id., 444; Perkins v. Portland. JR. Go., 47 Mo., 573; Banks v. Buffalo R. Co., 24 N. Y., 269; Buffatv. TroyR. Go., 36 Barb., 42; affirmed, 402V Y., 168; Hazelhurst v. Savannah, etc; II. Co., 43 Ga., 13; Banks et al. v. Matthews, 19 Albany L. Jour., 132-134; Phosphate Lime Co. v. Oreen, 1 Eng. B., 98; L. B., [7 Common Pleas], 43; Pay son v. Stoever, 2 Dillon [U. S. Cir. E.], 427; Mechanics' B'k v. N. 17, e#c., 12.12. Co., 13 E. Y., 599-622, 638; At re London Permanent Building Co., 17 W’ldy B., 513; affirmed, 21 L. Times [E. S.], 8; Bargate v. Shortridge, 5 H. L., 297; Walls' Appeal [78 Penn. B.], 370; Hull Flax and Cotton Mill Co. v. Wellesby, 30 L. J. [E. S.], part 2-5; In re Financial Qorp. King's Case, L. B. [2 Ch.]. 714; Sewell's Case, L. B. [3 Ch.], 131; 2 Story’s Eq., 874; 2 Bed. on B., § 220; Brotherhood's Case. 31 Beavan, 36; Weaver v. Barden, 49 E. Y., 286; McNeil v. Tenth Nat. B'k, 46 id., 325; Moore v. Miller and Metro. Bank, 55 E. Y., 41; Bank v Lanier, 11 Wall., 369; Marthews v. Mass. Nat. Bank, 10 Albany L. J., 198; Holbrook v. New Jersey Zinc Co., 57 E. Y., 616; A7 Y. cm! A7 AA. 12. 12. Co. v. Schuyler, 34 id., 30; Jome v. Parkersburg 12. Co., 59 Md., 36; 17 Amer. B., 548; Angel & Ames on Corp., 243 [10th ed] ; Bissely. Mich. 12. Co., 22 E. Y., 258; Be Groff v. American Linen Thread Co., 21 id., 124; Bradley v. Bullard, 55 111., 413; Carpenter y. Black Hawk Mining Co., 65 E. Y., 43; Milnor v. 1Y Y. and N. II. 12. 12. Co., 53 id., 363-365; Hood y. N. Y., etc., 12. 12., 22 Conn., 502; Converse v. A7 17, e#c., Tr. Co., 33 id., 179; Tracy y. Tallmage, 14 E. Y., 162; JAoss v. Avei ill, 10 id., 450; N. Y. Trust and Loan Qo. v. Ilelmer, 12 Hun, 35; Firemen's Ins. Co. v. AAy, 2 Cow., 678; NY. Life Ins. and Trust Co. v. Beebe, .3 Sold., 364; Seneca Co. Bank v. Lamb, 26 Barb., 595; Barton v. Por# Jackson Planlcroad Co., 17 id., 397; He TP?## v. Brisbane, 16 E. Y., 508; Richie v. Ashbury, 7 Eng. & Irish App., 653; Bushnelly. Chatauqua Co. Nat. Bank, 10 Hun, 375; 7P7w’#-ney Arms Co. v. Barlow, 63 E. Y., 62; Alexander v. Brown, 9 Hun, 641; Brown Bros. v. Torrey, 42 E. Y. Sup. Ct. B., 1; Gould y. Town of Oneonta, 3 Hun, 401; Ogdensburg, etc., R. R. Co. y. Vermont, etc.,R. R., 16 Abb. [E. S.], 249; Hope AAti#. Life Ins. Go. v. Taylor, 2 Bobt., 278; AAm v. Blanchard, 32 Barb., 527; AAo¿¿ v. H. /S'. Prws# Co., 19 id., 568; Steam Wav. Co. v. Weed, 17 id., 378; Fister v. La Hue, 15 id., 323; 1ST. Y. Supreme Ct., 1843; Moss v. Bossie Lead Co., 5 Hill, 137; Moss v. McCollough, 7 Barb., 279; Farmers and Mechanics' Bank v. Champion Trans. Co., 18 Vfc., 131; Twin Lick Oil Co. v. Marburg, 1 Otto, 587; Omaha Hotel Co. v. Wade, 17 Albany L. J., 161; Chubb v. Upton, U. S. Sup. C. [5 Otto], 665; Sauger v. Upton, 1 Otto, 56; B. Co. v. Howard, 7 Wall., 392-412-413; Alleghany v. McClenkson & Co., 16 Penn., 81; Coleman v. Columbia Oil Co., 51 Penn. St. R., 74; Chicago Building Society v. Crowell, 65 111., 455; Bradley v. Ballard, 55 id., 117; West v. Madison Co. Agricultural Board, 82 id., 205; State Board of Agriculture v. Citizens' Street B. Co., 17 Amor. R., 702; 47 Ind., 407; Sedgvv. Stat. & Const. L., 73 [2d ed.] ; Argente v. City of San Francisco, 16 Cal., 256; Miners Dutch Go. v. Zellerback, 37 id., 543; Hion Water Co. v. Murphy’s Co., 22 id., 620; Grand Gulf Bank v. Archer et al., 8 Smedcs & Marshall’s [Miss.], 151; Bank of Port Gibson v. Hevell, 6 S. & M., 513; Thompson v. Lambert, 44 Iowa, 239; Southern Life Ins. and Trust Co. v. Lanier, 5 Florida, 110; /Stofe q/ Florida v. Florida, etc., B., 15 id., 696; FZctS v. Union national Fire Ins. Co., 32 N. II., 295; Germantown Farmers' Mutual Ins. Co. v. Dhein, 43 Wis.; Bank of State of S. C. v. Hammond, 1 Rich. [S. C.], 281; Savage v. 17 N. J. Eq., 142.) The preferred stock constitutes a contract between its holders and the company, and the latter had no authority or power to interfere with, vary, modify or depreciate the same by an additional issue of preference shares. (Angel & Ames on Corp. [10th eel.], 209; Kennebec, etc., B. B. Go.y. Kendall, 31 Maine, 470; Beeves v. Boston Copper Co., 15 Pick., 351; Stratton v. Allen, 16 hi. J. Eq., 229; March v. Eastern B. B. Co., 43 JST. H., 515; Ins. Co. v. Conner, 17 Penn., 136; Cooper v. Frederick, 9 Ala., 738; Stevens v. B. and B. B. Co., 29 Vt., 545; Henry v. Great northern B. Co., 1 De Gex & Jones, 647; Westchester and Phila. B. B. Co. y. Jackson, 77 Penn., 321.)</p>

The facts appear sufficiently in the opinion. The court- erred m refusing to find that the first judgment estopped defendant from defending in this action, on the ground of a discharge in January, 1871. (Polk v. Daly, 4 Daly, 411; Moody v. Leverick, id., 401; Howard v. Daly, 61 N. Y., 362.) Plaintiff’s only remedy was an action for damages.

(Reported below, 12 Hun, 173.) This action was brought to collect the agreed freight on certain articles of machinery and merchandise from the city of Atchison to Bannock City and Virginia City, in the Territory of Montana. The defendant pleaded the statute of limitations in bar. The plaintiff is the assignee of one Trivett, who contracted to carry the freight.

These are cross appeals from a judgment of the General Term of the City Court of Brooklyn, affirming a judgment in favor of plaintiffs, entered upon the report of a referee. This action was brought to recover for work and labor alleged to have been performed and for materials furnished by plaintiffs under and in pursuance of a contract between the parties for the construction of what is known as the “ Hampstead Beservoir.” The facts appear sufficiently in the opinion.

This action was brought for the alleged conversion of a quantity of furniture. The facts pertinent to the questions discussed appear sufficiently in the opinion. When the return shows that questions of fact are legitimately before the General Term, and that the order for a new trial may have been granted on questions of fact, this court will not reverse the action of the General Term.

Mead before trial, on the ground that he was a “party in interest.” Under the old chancery practice, a bill for discovery lay not only against parties to the record in the common law action, but also parties hi interest. (Plummer v. May, 1 Yes., 426; Glyn v. Soares, 1 Y. & C., 644; Post v. Boardman, 10 Paige, 580; Day v. Dralce, 3 Sim., 64; Story’s Eq.

<p>A trustee of a fund for the security of an indebtedness to others, who as such is plaintiff in an action to enforce such indebtedness, may appeal from a judgment which reduces and limits the number of those who are creditors upon the fund; he is aggrieved by the judgment when a real claim, is not added into the amount adjudged to be due, and a real claimant is shut out by it from a share in the proceeds.</p> <p>It seems, that whei’e there is a pressing need to enforce a lien for the benefit of the trust, one of several trustees, as sole plaintiff, may bring an action for that purpose, when his associates will not join; in which case they may be made defendants. (New Code, § 448.)</p> <p>Where an action is so brought, the plaintiff may appeal from the judgment without the consent of his co-trustees. The responsibility of his position as plaintiff having been put upon him by the refusal of his associates to act, it is with him to take such action in the suit as his judgment dictates.</p> <p>The plaintiff in such an action may, and it is his duty in a proper case, to permit his name to be used by a cestui que trust, for the review of a judgment fatally adverse to the latter j and the court may by order permit such an appeal to be brought.</p> <p>The fact that the cestui que trust is a party to the action, and has or may take an appeal in his own name, does not take away the power in the trustee or the court; it is for the consideration of the trustee and the court in the exercise of their discretion.</p> <p>Where an order was granted in such an action, allowing several persons, claimants upon the fund, some of whom were parties to the action and some not, but who were all in a class and in like manner affected by the judgment, to appeal in the name of plaintiff, held, that the court properly exercised its discretion.</p> <p>Also, held, it appearing from the papers that the plaintiff was cognizant of, and assented to, the motion, that the motion was properly granted ex parte, that neither the co-trustees nor the parties interested in upholding the judgment were entitled to notice.</p>

An action was brought by Augustus Boches, as one of three trustees, of a mortgage executed by Henry H. Hathorn and wife, on the Congress Hall premises in Saratoga Springs. The other two trustees, John C. Hulburt and Chauneey Kilmer, declined to be plaintiffs and were made defendants. Afterwards William B. Duel was substituted as trustee in the place of John C. Hulburt. Kilmer answered the complaint, setting up, First.

<p>Appeal from order of the General Term of the Supreme Court, in the first judicial department, affirming an order-of Special Term which vacated an assessment upon lands of the petitioner for certain blind drains. (Reported below, 17 Hun, 561.)</p> <p>The facts appear sufficiently in the opinion.</p> <p>The assessment in question was imposed in strict accordance with all the requirements of law and is unaffected by any irregularity. (Laws of 1871, chap. 566, §§ 1, 2, 3; Gréene v. Mayor, etc., 60 H. Y., 303; In re Zborowski, 68 id., 88.) It was imposed for a lawful object and for expenses incurred in the lawful exercise of the police power of the State of Hew York. (Cooley’s Const. Lim. [2d ed.], 572; Papenger Cases, 7 How. [U. S.], 283-423; In re Townsend, 39 H. Y., 171— 174, 181, 182; Varick v. Smith, 5 Paige, 137-160; Potter’s Dwarris on Stat., 445-447,-455, 463; Dillon on Municipal Corp., § 93; Sedgwick on Const. Law, 423, 434, 473; Comm. v. Alger, 7 Cush., 84; Baker v. Boston, 12 Pick., 183; Deugley v. Boston, 100 Mass., 544; Thorpe v. R. and B. R.R. Co., 27 Vt., 149; Tidewater Co. v. Coster, 3 C. E. Green, 519-531; State v. Blake, 36 H. J. Law, 442-447; Anderson v. Kerns Drainage Co., 14 Ind., 199-202; O'Rieley v. Kankakee Co., 32 id., 169—191; Presb. Church v. Mayor, .5 Cow., 538; Vanderbilt v. Adams, 7 id., 349—351; Stuyvesane v. Mayor, 15 Wend., 262; Meeker v. Van Rensselaer, 15 id., 397; Campbells. Evans, 45 N. Y., 356; Matter of Ryres', 72 id., 1; Pool v. Tucker, 76 1ST. C., 297; Commonvjealth v. Tewksbury, 11 Mete., 55; Cooper v. Schultz, 32 How., 107-121; Coe v. Schultz, 47 Barb., 64-70; Stuyvesant v. Mayor, 7 Cow., 588-605; Const. Linn, 595-596; _Z?t re Ryers, 72 if. Y., 7.) The act under which the assessment was laid was not violative of the constitution. (Burroughs on Taxation, 496; Cooley on Taxation, 402-423; Tidewater Co. v. Coster, 4 C. E. Green, 519-531; State v. Blake, 36 N. J. Law, 442, 443, 447.) The Legislature has power to tax or to delegate such power to a political division of the State, or to compel that division to tax, to raise money to pay a legal, equitable or moral claim. (Guilford v. Suprs. of Chenango, 13 N. Y., 143; Weismer v. Village of Douglas, 64 id., 91—100; People, v. Nearing, 27 id., 306; Buff. Tin. Eon Works v. Buffalo, 13 Abb. [M. S.], 141; State v. Newark, 3 Dutch., 186.)</p> <p>The city officials in constructing the drain committed a trespass, for which no assessment could be laid. (People v. Nearing, 27 N. Y., 306; People v. Haines, 49 id., 587; Matter of Rhinelander, 68 id., 105; Matter of Ryers, 72 id., 1.) The. act of 1871 (chap. 566) was unconstitutional, because it made no provision for compensating the owners for the land taken. (People v. Nearing, 27 N. Y., 306; Hartwell v. Armstrong, 19 Barb., 166; Gilbert v. Foote, cited in White v. White, 5 Barb., 483.)' The power exercised under the act of 1871 is not a police power,, but the exercise of the right of eminent domain. (Hartwell v. Armstrong, 19 Barb., 166, 171, 176; Dillon on Munic. Corp., § 93; Inre Ryers, 72 N. Y., 1; Clark v. Mayor, etc., 13 Barb., 32.) The objection of laches on the part of the petitioner could not be sustained. (Ormsby v. Copper Mining Co., 56 N. Y., ■623; B’k of Commonwealth v. Mayor, 43 id., 184; Peyser v. Mayor, 70 id., 497; People v. Eggleston, 13 How. Pr., 123; Weeks v. Merritt, 5 Eobt,, 610; Hallet v. JRighters, 13 How. Pr., 43; Miner v. Beekman, 14 Abb. [N. S.], 6.)</p>

The facts appear sufficiently in the opinion. Defendant .Dean having entered into possession and collected the rents of the premises was liable for the interest on the mortgage and taxes while • he was in possession, to the extent of the rents collected by him, or so much as might be necessary to pay any deficiency. (Lattimer v. Moore et al., 4 McLean, 110; Cumberland v. Godrington, 3 Johns. Chy., 260-261; BevH v. WatJcinson, 1 Yes.

<p>To create a valid trust, under the statute of uses and trusts (2 R. S., 728, § 55), it is not necessary that the trust should be stated in the very words of the statute; it is sufficient if a purpose within the statute is clearly embraced in the language used, for the execution of which the trustee may be clothed with the legal title.</p> <p>The will of S., by' its terms,'gave to C. all the testator’s real and personal estate, “ in trust, neverthless, for the necessary support and maintenance of” the testator’s son A., “ during his natural life,” and after the death of A., gave said estate to the lawful children of A. C. was appointed executor, and was authorized to sell certain of the real estate. In an action of ejectment by plaintiff as successor to C., as trustee, to recover possession of premises so authorized to be sold, held, that the will gave to C., directly or inferentially, power to manage the estate, to receive the rents and profits and apply them according to his judgment in the support and maintenance of A.; and that, therefore, a valid trust was created, and a legal title vested in the trustee.</p>

Wentworth from his position as assignee of William B. Burtnett for the benefit of creditors. The facts appear sufficiently in the opinion. The assignee could only be removed on the ground of misconduct, incompetency or failure to file an inventory. (Laws 1877, chap. 466, \ 6.) The assignee ivas not incompetent within the meaning of the statute. (Emerson v. Bowers, 14 N. Y., 449; Qoope v. Loioerre, 1 Barb. Ch., 45; In re Watt’s Trust, 9 Hare, 106; Turnery. Maulé, 5 Eng.

<p>Appeal by Louisa F. Alberger from an order of the General Term of the Supreme Court, in the fourth judicial department, affirming an order of Special Term, which denied a motion on the part of said appellant, as judgment and execution creditor of defendant, Samuel F. Alberger, to vacate an attachment issued herein against the property of defendants, John L. and Samuel F. Alberger, and levied upon certain/personal property of the latter in the county of Niagara.</p> <p>The affidavits, upon which the attachment was granted, contained the following allegations, which were all of the allegations as against said defendant, Samuel F. Alberger.</p> <p>“ That said John L. Alberger resides in the city of Buffalo, and the defendant, Samuel F. Alberger, as deponent is informed and believes, formerly resided in the city of Buffalo, but now resides in the county of Niagara, in the State of New York ; that as deponent is informed and believes, the defendant, John L. Alberger, has real and personal property situate in the county of Erie, and the defendant, Samuel F. Alberger, is the owner of considerable real and personal property situate in the counties of Niagara and Erie ; that the defendants Moffat have been for several years engaged in business in said city of Buffalo, and said defendants Alberger, were during the years 1871, ’72 and ’73, also engaged in business in said city of Buffalo, which they continued by the defendants, John L. Alberger, to about the month of October, 1877 ; that said cause was submitted to said referee on or about October twenty-third; that deponent is informed and believes that the defendant, John L. Alberger, in anticipation of the decision and judgment in this action against him about the time of said submission suspended his said business in Buffalo ; that in 1876, the firm of J. L. Alberger & Co. attempted to effect a composition with their creditors at thirty-three and a third cents on a dollar, and said John L. Alberger attempted to induce the plaintiff to compromise the said elaim of plaintiff in this action at that time at the same rate ; that upon the trial of the said issue, the defendants, James Moffatt and John L. Alberger, were sworn as witnesses on behalf of said defendants Alberger, and it appeared from such testimony and conversation in the presence of deponent, that said James Moffat has for several years last past been intimately acquainted with defendant Alberger and in intimate, friendly and confidential business and social relations with them; that after issue was joined in said action, deponent was informed by said John' Hubbell, attorney for said defendants Alberger, at the court house in Rochester, on the 30th day of April, 1877, and if judgment was obtained against the defendants Alberger in this action, it would use them up and they would be compelled to go into bankruptcy; that deponent was informed by defendant, James Moffatt, after said action was at issue, that the defendants Alberger would prevent -the collection of plaintiff’s judgment in this action by making an assignment of their property, and that they would beat plaintiff on the execution by getting rid of them property ; that deponent verily believes that the said defendants, John L. Alberger and Samuel F. Alberger, are about to assign, dispose of or secrete their joint and several property with intent to defraud their creditors, and especially with intent to defraud the plaintiff in this action and to prevent the collection of the judgment which shall be rendered therein; that judgment has not been rendered in said action.”</p> <p>The further facts appear sufficiently hi the opinion.</p> <p>Proofs making a case against otie of two joint debtors do not authorize an attachment against the individual property of the other. (7 How. Pr., 229, 383; 24 id., 284;' 8 Abb. Pr., 120; 13 id., 76; 12 Barb., 298; 1 Duer, 662; Code, § 635.) To authorize an attachment the affidavits on the application therefor must be full, explicit and convincing, made upon positive knowledge, and must make a prima facie case. (3 Sand., 373; 13 Abb. Pr., 76; 39 How. Pr., 385; 17 id., 559; Ilill v. Bond, 22 id., 272.) Threats to make an assignment or go into bankruptcy, and offers or attempts to compromise an admitted insolvency, are not sufficient evidence of an intent to dispose of property fraudulently, to warrant or justify the issuing of an attachment. (Dickenson v. Benham, 20 How., 3d3; Wilson v. Britton, 36 Barb., 562; 10 Abb., 390.)</p> <p>Mrs. Alberger did not acquire a lien upon the attached property, and was not entitled to make this motion. (Ketchum v. Ketchum, 1 Abb. [N. S.], 157; Code, §§ 682, 683.) Until a judgment by confession is actually entered in the judgment book it is not a judgment. (Blydenburgh v. Kforthrup, 13 How., 290; Schenectady Blank Hoad v. Thatcher, 6 id., 226; Decker v. Judson, 16 N. Y., 450; A.rtisans’ Bk. v. Treadwell, 34 Barb., 558.) The county clerks have no power in respect to judgments, except such as are expressly given by statute. (Code Civil Procedure, §§ 1239, 1246, 1248, 1250, 1273-1276; Schenectady Blank Hoad v. Thatcher, 6 How., 226; Townsend v. Wesson, 4 Duer, 342; Macomber v. Mayor, 17 Abb., 45; Marvin v. Herrick, 5 Wend., 10; Morris v. Batchin, 24 N. Y., 394-398; Buchan v. Sumner, 2 Barb. Chy., 165-195; King v. Harris,. 34 N. Y., 336; Butler v. Lewis, 10 Wend., 542.) The transcript sent to Niagara county was void. (Code Civil Procedure, § 1247; Tawnshend v. Wesson, 4 Duer, 342.) The subsequent docketing in Erie county was illegal and void. (Code Civil Procedure, § 1247.) Even if this docketing had been valid, it was too late. (Code of Civil Procedure, § 1250.) All of the real estate having been conveyed before the false docketing was done or the affidavit presented to the deputy clerk, even if Mrs. Alberger’s judgment had been perfected in August, 1878, she could have obtained no lien. (Herman on Ex., 200; Devoe v. Elliott, 2 Caines, 243; Vail v. Lewis, 4 J. R., 450; Hathaway v. Howell, 54 N. Y., 97.) The original affidavits were sufficient to warrant the issuing of the attachment. (Gashern v. Ajyfle, 14 Abb., 64, 68-69; Livermore v. Rhodes, 27 How., 506-507; Griffin v. Marguarette, 21 N. Y., 121; Allen v. Meyer, 73 id., 3; Ferinan v. Walter, 13 How., 355; Schoonmaker v. Sjpencer, 54 N. Y., 366-368, 369, 371; Morgan v. Avery, 7 Barb., 656, 663; Fern Xoora v. Lyons, 6 N. Y., 22-24; Van Alstine v. Erwin, 1 Kernan, 340; Matter of Faulkner, 4 Hill, 598; _ZY7es v. Firm Fuser, 14 How., 547, 549; Brooklyn Daily Union v. Hayes, 11 Abb. [N. S.], 235; Matter of Griswold, 13 Barb., 412; Kissodc v. Gh'ant, 34 id., 144-149; Woodcock v. _Z?enneíí, 1 Cow., 712, 734-735; Bkinnion v. Kelley, 18 N. Y., 355; Union Bk. v. Mott, 17 How., 353; Matter of Bliss, 7 Hill, 187; zS7. ylraa-uí v. De Beixcedon, 3 Sandf., 103; .5777 v. Bond, 22 ITow., 273; Brewer v. Tucker, 11 Abb., 79; Code Civ. Proc-., § 885;. 16 How., 481; Deland v. i?fc7¿arclson, 4 Dcnio, 96; Monroe v. Potter, 22 How., 58.)</p>

This was an action of ejectment to recover possession of certain premises in Steuben county.

Appeal by the Chemical National Bank of New York from an order of the General Term of the Supreme Court, in the third judicial department, affirming an order of Special Term which denied the petition of said bank for an order directing the receiver of the Merchants and Mechanics’ Bank of Troy to pay to petitioners, out of the assets in his hands, the amount of a check drawn by the Troy and Boston Railroad Company upon said Merchants and Mechanics’ Bank.

(Reported below, 16 Hun, 143.) This action was brought to obtain a judicial construction of the will of Henry Shields, late of the city of New York, deceased. The following provisions of the will are those in question : “Second. I give my beloved wife, Catharine Shields, the dwelling-house now belonging to me known as No. 106 fone hundred and six) Second avenue, in the city of New York, that she now occupies.

Miller as executor of David Rea, deceased. The facts appear sufficiently in the opinion. Defendants have called the witness Pollock, and sworn him generally, they rendered him competent for plaintiff, although he might have been originally incompetent; and as to every matter embraced in the issue, they are estopped from saying he is interested.

The nature of the action and the facts appear sufficiently in the opinion. Whether evidence is admissible or not is a question for the decision of the court alone, but after the testimony is admitted, its weight and the credit to be given thereto are questions for the jury alone.

This action was brought to foreclose a mortgage executed by defendant Wolf upon certain premises in the city of Hew York. Defendant Beicr, who was the owner of the equity of the redemption and who alone defended, set up payment. The question was as to the payment of eighteen months interest due December 1, 1871, which was indorsed upon the bond as paid. The facts in reference thereto appear sufficiently in the opinion.

The nature of the action and the facts are set forth sufficiently in the opinion. The contract was not mutual and did not create any obligation or operate as a sale. (Bouvier’s Law Dictionary ; Story on Contracts, § 35; Story on Sales, §§ 124, 125; Tuttle v. Love, 7 J. R, 470; TucJcer v. Woods, 12- id., 190.) Should the second part of the agreement be treated as a mutual and obligatory contract, the notice was a rescission. (Skinner v. White, 17 J. R, 357; GlarTcY.

Seaman, deceased, which directed- said executors to pay to the respondent, their attorney, the sum of $1,000 for his services. The statute authorizes an allowance to an executor and not to his counsel as against him. (Burtis v. Dodge, 1 Bárb. Ch., 77; Austins. Monroe, 47 If.

The nature of the action and the facts are set forth sufficiently in the opinion. In a case where the circumstances admit of two inferences, either of which is equally probable, one in favor of plaintiff and the other in favor of defendant, plaintiff should be nonsuited. (Codell y. JY. Y. C. and H. R. R. R. Co, 75 IT.

The nature of the action and the facts are set forth sufficiently in the opinion. Plaintiff failed to make out a case for a breach of covenant to pay money. (Halsey v. Reed, 9 Paige, 446, 451; Garnsey v. Rogers, 47. N. Y., 241.) No case for breach of covenant of indemnity was made out. (Marsh v. Pike et at, 10 Paige, 595; Beers v. Shannon, 73 N. Y., 305; Halsey v. Reed, 9 Paige, 446; Garnsey V. Rogers, 47 N. Y., 241; Cumberland v. Codrington, 3 Johns.

The nature of the action and the facts material to the questions discussed appear sufficiently in the opinion.

<p>An order of a General Term of the Supreme Court affirming a judgment, of a Court of Sessions, upton conviction, is not reviewable in this court on writ of error.</p> <p>The act of 1879 (chap. 449, Laws of 1879), amending the provisions of the Revised Statutes in reference to writs of error, applies only to cases where after conviction sentence has been suspended or stayed, and such conviction has been affirmed by a General Term of the Supreme Court. It seems, that if the district attorney fails to enter judgment upon the order of affirmance, so that a writ of error may be brought, the defendant may require it to be done; and the court, on motion, will direct such entry.</p> <p>The fact that a plaintiff in error has received a pardon from the executive does not authorize the dismissal of his writ of error; injury may be presumed from the judgment until reversed, as the infamy and discredit to which he is subjected by it will remain.</p> <p>As to whether when, after a pardon, the judgment is affirmed by reason of proceedings upon the part of the defendant, he will be deemed to have waived the benefit of the pardon, qiuere.</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. (Reported below, 12 J. & S., 255.)</p> <p>This action was brought upon four promissory notes executed by Charles F. Weber, defendant’s testator, to the widow and executrix of Albert Weber.</p> <p>The facts appear sufficiently in the opinion.</p> <p>The law will not uphold a compromise of an unfounded claim extorted by suit. (Edwards v. Baugh, 11 Mees. & Weis., 641-645; Jones v. Ashburnham, 4 East, 463; S. B. Palfrey v. Portland S. and P. It. R. Go., 4 Allen, 56; North v. Forest, 15 Conn., 404; Lucy’s Gase, 4 De G., M. & G., 364; Kidder v. Blake, 45 N. H., 532; Wade v. Simsm, 3D. & L., 596; Goolc v. Wright, 1 B. & S., 539, 570; Tooley v. Windham, Cro. Eliz., 206; Longbridge v, Danville, 5 Barn. & Aid., 122.) The legal presumption is that a claim shown to be wholly unfounded is fabricated, or is known to be so. This presumption must be rebutted by evidence and the issue determined by the jury. (Jordan v. Volkenning, 72 N. Y., 306; Wood v. N T. G. and II. R. R. R. Go., 70 id., 199.)</p> <p>The notes in this action, having been given in settlement of former action are founded on good consideration and promise. (Stewart v. Ahrenfeldt, 4 Den., 189; Farmers' Bank of Amsterdam v. Blair, 44-Barb., 641; Bussell v. Book, 3 Hill, 504; Seaman v. Seaman, 12 Wend., 831.) The defendant is estopped from, avoiding said agreement, or the payment of said notes without having restored or having offered to restore to plaintiff’s assignor, or plaintiff, whatever the defendant or her testator-received for said notes. (Fly v. Kilburn, 5 Den., 514; 2-Abb. Dig., 270, § 1395; Mumford v. Am. Life Ins. Bo., 4 N. T. [4 Com.], 482-483; Hogan v. Weyer, 5 Hill, 389; 5 Barb., 319; 13 id., 641; 2 Story’s Eq., §§ 693-694; Willard’s Eq., 303 [Potter’s ed.].)</p>

This action was brought to recover damages sustained by reason of the death of the plaintiff’s intestate, caused, as alleged, by the negligence of the defendant’s servants. The injury occurred' April 18, 1876, at a station at Darien, Genesee county, on the Erie railway, then being run. by defendant as receiver, where the intestate was waiting to. take a passenger train for Buffalo.

Motiok to dismiss a writ of error. (Reported below, 16 Hun, 476.) The material facts are stated in the opinion. The decision of the court on the motion in arrest of judgment is not a part of the record or subject to review in this court.

<p>This action was brought by plaintiff, as assignor for the benefit of creditors of J., for the alleged conversion of goods levied on by defendant R., as sheriff, by virtue of an execution against H., in favor of the other defendants. Plaintiff gave in evidence a judgment-roll in an action brought by him against J., H. and another, to determine the title to the goods. The judgment therein determined that the title to the goods was originally in H.; that she transferred them to J. as security for money loaned by him, and that by the assignment to plaintiff he acquired J.’s interest. Held, that said judgment established conclusively that title to the property was in plaintiff good as against the defendants in that action, and every person claiming under them, subsequent to judgment therein; but that an execution creditor of H. could assail the transfer to J. as fraudulent and void as to him, this not having been adjudicated in the former action; that defendants therefore were not concluded from showing that the transfer to J. was fraudulent in fact, or was fraudulent and void, because there was no change of possession, and the written transfer was not filed as a mortgage.</p> <p>Defendants’ answers alleged substantially that the property belonged to H., and was seized by virtue of an execution against her. Upon the trial defendants offered to prove by competent legal evidence the allegations of the answer; this offer was rejected. Held, that under the answer defendants had a right to show that the transfer to J. was as to them fraudulent and void, leaving the title in H.; that the offer was in effect to prove this, and its exclusion therefore was error.</p>

<p>Appeal from, judgment of "the General Term of the Supreme Court, in the fourth judicial department, in favor of relator, entered upon an order reversing a judgment in favor of defendant, and directing judgment for relator. (Reported below, 18 Hun, 311.)</p> <p>This was an action in the nature of a quo warranto, to determine the title to the office of superintendent of the poor of the county of Oneida.</p> <p>On the 4th of October, 1878, a vacancy was created in the office of superintendent of the poor in said county, by the removal by the governor of Thomas J. Brown, who was elected to the office in the fall of 1876, for a full term of three years, which commenced January 1, 1877. On the 22d of October, 1878, the board of supervisors appointed the defendant to fill such vacancy. At the general election in November, 1878, the relator and another person wore voted for by the electors of said county for that office. The relator received a majority of the votes cast, and the board of canvassers gave him a certificate of election. He took the oath of office, filed a bond, and on the 1st day of January, 1879, demanded the office of the defendant, who refused to deliver the same.</p> <p>Further facts appear in the opinion.</p> <p>The appointment of the defendant as superintendent by the board of supervisors of Oneida county was valid, and vested the office in the defendant for the remainder of Brown’s term. (1 R. S. [6th. ed.], 420, § 40; Constitution, art. 10, § 2; Laws of 1847, chap. 498, §§ 1-4; 2 R. S. [6th ed.], 811, § 18; Laws of 1854, chap. 188, § 1.) The election of the relator to the office of superintendent of the poor in November, 1878, was void. {People ex rel. Furman v. Piute, 50 N. Y., 451-459; People v. Pinckney, 32 id., 377-394, 395; People v. Keeler, 25 Barb., 23-26; People v. Bull, 46 N. Y., 57-60; Laws 1854, chap. 188, § 1; 2 R. S. [6th ed.], 811, § 18.) The office of superintendent of the poor is not, by the constitution, an elective office, and is not among those named in section 1 of article 10 of the constitution. The Legislature has the entire direction and control over the maimer of filling it. (Constitution, art. 10, §§ 1, 5; People ex rel. Fur-mam v. Piute, 50 N. Y., 451; People v. Keeler, 25 Barb., 23; People v. Green, 2 Wend., 274; People v. Albertson, 55 N. Y., 50-54; 1 E. S. [6th ed.], 428, 429, § 8; People ex rel. Houey v. Ames, 19 How., 551-556; People v. Pinckney, 32 id., 377-393; People v. Draper, 15 id., 532.) The election of the relator at. the general election on the 5th of November, 1878, was void, for the reason that no notice of such election was given to the electors." (1 E. S. [6th ed.], 430-431, §§ 3, 14; People v. Allen, 6 Wend., 486; Fx parte Heath, 3 Hill, 42-47; People v. Holly, 12 Wend., 481; People v. Cook, 4 Selcl., 67; People ex rel. Barnes v. Gardner, 24 N. Y., 583; People v. Oowles, 13 id., 350.)</p> <p>The office of superintendent of the poor is elective, within section 5, article 10 of the constitution. (People v. Fisher, 24 Wend., 214, 219 ; Settle v. Van Fvrea, 49 N. Y., 281.) When a vacancy occurs in it the statute (Laws 1847, chap. 498), making the office elective, is modified, and an election may intervene in accordance with the spirit and meaning of the constitution and laws, and to carry out the purposes for which the office was created. (People v. Sup’rs Ulster Co., 34 N. Y., 272; Tollman v. S. and B. B. B. Co., 4 Keyes, 135; People v. Albertson, 55 N. Y., 55.) The election laws of the State are directory, and must be liberally construed. (People v. Cook, 8 N. Y., 67; People v. Cowles, 13 id., 350; People v. O’Bren., 38 id., 195.)</p>

<p>"Where power is delegated by the Legislature to a municipal corporation to take the property of the citizen in invitum, all the prescribed prerequisites to the exercise of that power must be strictly observed and conformed to.</p> <p>It cannot be presumed that these requirements have been met; the corporation must be able to show it.</p> <p>The charter of the city of Buffalo of 1870 (title 8, chapter 519, Laws of 1870), as prerequisites to the power given to the city to take lands for streets, etc., requires first, that the common council shall by resolution declare the intent to take the land for the purpose, describing the land, which resolution must be published by the city clerk in the official paper for two weeks. Second, within three months after expiration of publication the common council must declare by resolution “ to be adopted by a vote of two-thirds of all its members,” that the city has determined to take such lands. Upon motion to set aside an order appointing commissioners to assess damages for lands proposed to be taken for a street Improvement, a resolution of the common council entered upon its records as adopted was produced; but it did not appear by the records -or by proof aliunde, that two-thirds of the members voted for it; held, that it could not be presumed that the resolution received the requisite two-thirds vote ; that the defect was jurisdictional, not simply an irregularity, the city failing to show authority to act; and that, therefore, the motion was properly granted</p> <p>Also held, that the fact, that no objections to the regularity of the proceedings appeared upon the record to have been made upon the hearing on application to appoint commissioners did not prevent its being raised on behalf of the city on this application ; that, as it did. not appear that the parties there appearing were the only parties interested, and as those assessed or liable to be assessed for the improvement, and who were not parties to the proceedings were interested, and were not estopped or bound thereby, not having made waiver, could resist the collection of the assessment, the city had the right to seek to retrace the steps taken in mistake, and was bound to take advantage of the lack of authority.</p> <p>Also held, that the case was not within the provisions of the Code of Civil Procedure (§§ 1282, 1283, 1290) limiting the time within which judgments may be set aside for irregularity or for errors of fact not arising on the trial, as it was a special proceeding and the decision therein not a judgment.</p> <p>Also held, that the provision of said Code (§ 724), permitting the court to relieve a party from a judgment, order, or other proceeding within one year after notice, did not affect this case; as in the absence of an express prohibition courts have always control over their own proceedings.</p>

(Reported below, 14 Hun, 396.) This action was brought by plaintiff, as trustee of Charles H. Hook, against defendants, as executors of the will of James P. Haskin, deceased, upon a draft signed and indorsed by said testator, of which the following is a copy : “ $5,000.

The facts appear sufficiently in the opinion. The failure of Bartow after having deposited the money of the savings bank in the national bank, to make the proper entries in the books, cannot constitute embezzlement. (Stevens Digest of Eng. Cr. Law, 248; B. v. Hodgson, 3 C. & R., 422; B. v. Win-nail, 5 Cox C. C., 326.) A count charging that Bartow received the money as agent of an individual is bad.

These are appeals, the one from order of the General Term of the Supreme Court, in the second judicial department, refusing to vacate an order of said General Term, confirming the report of commissioners appointed in the proceedings above entitled; the other from the order last mentioned. The nature of the orders appealed from more fully appear, as do the material facts, in the opinion. The order denying the appellant’s motion is appealable.

The order of General Term set aside the sale absolutely. (Reported below, 17 Hun, 370.) The action was for partition, and the decree directed a sale of 'the premises. The facts appearing on the motion are sufficiently stated in the opinion. The evidence did not authorize a finding that Whittier was a “ puffer ” or “ sham-bidder.” (Doolubdass v. Bumloll, 3 Eng. L. & Eq., 47; Fat. F. Ins.

This action was upon an undertaking executed by defendants as sureties given in an action of replevin, brought by the Rochester Water Works Company against James Jones, Henry Jones and Charles Harrison, who were co-partners and of whom the plaintiff herein is survivor. ■ Upon a former trial of the action the complaint was dismissed ; plaintiff appealed to the General Term where judgment was reversed and new trial granted.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, affirming a judgment in favor of plaintiffs, entered upon a verdict.</p> <p>The nature of the action and the facts are set forth sufficiently in the opinion.</p> <p>The judge erred in charging the jury that interest should be added to the damages ascertained by them. (.McMahon v. JST. Y. and Erie It. Qo., 20 1ST. Y., 463; Van Rensselaer v. Jewett, 2 id., 135; Passenger v. Thorburn, 34 id., 634.)</p> <p>Plaintiffs were entitled to interest on the damages from the commencement of the action. {Van Rensselaer v. Jewett, 2 N. Y., 135; Van Burén v. Van Gaasbeck, 4 Cow., 496 ; Tucker v. Toes, 6 id., 193 ; McIInight v. Dunlop, 4 Barb., 36; Barnard v. Bartholomew, 22 Pick., 291; 22 Maine, 161; MygattY. Wilcox, 45 N. Y., 306; Eeeterv. Heath, 11 Wend., 477-484; McGollum y. Seward, 62 N. Y., 316; Mercer v. Vose, 67 id., 56.) The interest should have been allowed by way of full indemnity to the plaintiff. (Fislikitt v. Winans, 38 Barb., 230; Wells v. Selswood, 61 icl., 238.)</p>

(Reported below, 9 Hun, 383.) This was an action on a policy of marine insurance, underwritten by the three companies, defendants herein. The insurance was limited by a memorandum, in manuscript, written across the margin of the policy in the following words : “Against actual, total loss only.” The vessel insured became disabled and went ashore on a voyage from Harrisonville to Detroit.

This action was in the nature of a quo warranto, to determine the title to the 'office of comity judge of Niagara county. The relator claimed under an appointment by the governor made March 8, 1879. Defendant claimed under an election at the general election held in November, 1878. The facts appear sufficiently in the opinion.

<p>Q. having been appointed receiver of an insolvent savings bank executed his bond with O’D. as surety. Q. entered upon his duties, but subsequently by leave of the court resigned, and a new receiver was appointed. An order of Special Term was made settling the accounts of Q., as receiver, which contained a clause authorizing O’D. to appeal on stipulating to be bound by the decision thereon. O’D. appealed to the General Term; making the required stipulation, which was accepted by the opposite party. The appeal was heard without objection to the right of O’D. to appeal; the orderappealed from wasaffirmed, with a direction that O’D. pay to the new receiver the amount of the bond. Held, that O’D. was entitled to appeal to this court.</p> <p>About the time of Q.’s appointment as receiver he was appointed by one R. as one of three trustees, to dispose of certain property belonging to R. and apply the proceeds in payment of such creditors of the savings bank, as should assign to R. their claims, and subrogate him to their rights to the extent of such payments; this office Q. accepted. It appeared upon the reference to settle Q.’s accounts, as receiver, that he received as proceeds of R’s property and paid to certain creditors about §47,000; the referee in stating the accounts gave Q. credit for the sums so paid, but these credits were disallowed by the Special Term. Held, no error; that the receiver was not entitled to the benefit of these payments, as they were not made out of property of the bank, and so far as the receiver was concerned the debts upon which the money was paid were still outstanding.</p>

<p>Upon the trial of an action, a party holding the affirmative of an issue is bound to introduce all the evidence upon his side before I13 closes; having rested, and the opposite side having closed, it is entirely in the discretion of the court whether to allow said party to introduce new evidence to maintain the issue, or to re-examine a witness on his part as to transactions previously testified to.</p> <p>"Where a party, as a witness to sustain an issue as to which he has the affirmative, testifies to one conversation, which is denied on the other side, he is not entitled, as a matter of right, to prove another as to which he has not previously testified, even though it tends to support his Original statement.</p> <p>A mortagee out of possession holding a mortgage upon real estate given to secure the bond of the mortgagor, in the absence of notice of any change in the position of the lalter, and of any request to foreclose, may rely upon the personal liability of his debtor, and is not bound to look after Or protect the mortgaged premises.</p> <p>If the mortgagee forecloses the mortgage, the debtor is entitled to credit only for the net proceeds of sale realized by his creditor, after the deduction of all liens for taxes, etc., and remains liable for any deficiency.</p> <p>Accordingly held, where' D., who had executed a mortgage upon certain premises to secure his bond, conveyed the premises subject to the mortgage, which the grantee assumed to pay, and the premises, after the sale and after the- maturity of the mortgage, became incumbered by taxes and assessments, that in the absence of notice to the mortgagee, and a request to foreclose, D. was liable, in an action to foreclose the mortgage, for a deficiency, in ascertaining which the amount of said incumbrances was deducted from the proceeds of sale.</p> <p>As to whether, in such case, ¡l notice to the mortgagee, and request, after the mortgage is due, to foreclose, will avail to impose upon him, in case of his non-compliance with the request, the damages resulting from an impairment of the security, or whether the mortgagor has any remedy except to protect himself by paying his bond and becoming subrogated to the rights of the mortgagee, qucBre.</p>

<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. (Reported below, 17 Hun, 344.)</p> <p>This action was brought in 1853, by Mather Williams, the plaintiff’s decedent, praying for an injunction restraining the defendants from using certain portions of Washington street, in the city of Syracuse, described in the complaint, for the purpose of a railroad, and to recover damages for the past use, or for a judgment that if they be permitted to continue such use it shall be only on condition of their paying the damages sustained.</p> <p>Williams and others, being the owners of the lands through which Washington street runs, laid out and dedicated said street to the use of the public, and laid out their lands adjoining into village lots for the purpose of sale. The defendants laid their tracks in said street, and used the same, with the consent of the public authorities having charge of the street, but without obtaining the consent of Williams or making compensation to him. The action has been tried three times. The first trial was by the court, without a jury, and resulted in a judgment for the defendants, which was reversed by the Court of Appeals, and a new trial was ordered. (16 N. Y., 97.) In 1868, the cause was tried by a referee, who ordered judgment for the plaintiff for $19,605.83. He denied the prayer for an injunction, but ordered that upon payment of said sum, the fee of the portion of the street belonging to the plaintiff, vest in the defendants for the use of their railroad. That judgment was reversed by the General Term. About that time Williams, the plaintiff, died, and his. executors and residuary legatees and devisees were made plaintiffs, by order of the court. In 1876 the cause was tried by another referee who ordered judgment in favor of the plaintiffs for $19,508.79 damages, besides costs, and further ordered that if the plaintiffs tender to the defendants a conveyance of their interest in the land in question, in said street, and a release of their damages, except said sum of $19,508.79, the defendants shall pay to the plaintiffs the further sum of $4,339.43 and interest from the date of the report; and in default of such payment, the defendants shall be perpetually enjoined from using such portions of said street, and if the plaintiffs fail to make such tender, the injunction is denied. Upon the last trial the referee found that the construction and use of the railroad greatly impaired the value of the lands of the plaintiffs, fronting upon Washington street, and extending to its center, and also the value of the rents and profits thereof. He also found that previous to such trial all of said lands fronting said street had been sold by said Williams or the plaintiffs. Further facts appear in the opinion.</p> <p>Defendant’s acts in laying its rails and running its cars over the strip in question amounted simply to a series of trespasses upon plaintiff’s land, without any special damage thereto. (Wilhau v. Sharp, 15 Barb., 209, 221; 16 1ST. Y., 11.1; Waterloo Case, 3 Hill, 567; Wager v. Troy U. It It Co., 25 N. Y., 534; Corey and Wife v. Buffalo, etc., 23' Barb., 482; Carpenter v. Oswego R. R., 24 N. Y., 635; Albany Northern Case, 16 Barb., 71; Radcliffv. Broohlyn, 4 Comst., 194.) Defendant is bound to compensate for land actually taken, and not for land not taken, though perhaps impaired in value. {A. N. R. R. Co. v. Lansing, 16 Barb., 71; Corey v. Buffalo, 23 id., 482; Canandaigua v. Payne, 16 id., 273.) The plaintiffs are not entitled to recover any of the supposed damages proved and exhibited in the judgment, because defendant was in possession and has continued to be. {Carpenter v. Oswego R. R., 24 14. Y., 656; Wohel v. Buff, and St. L. Co., Ct. Appls., MS. Opin.; Monclcton v. Pashley, 2 Ld. Raym., 975; Cro. Eliz., 540; Roll Abridg’t, 553; 3 Bl’k Com., chap. 12, p. 210; Case v. Shepherd, Johns. Cas., 27; Holmes v. Seeley, 19 Wend., 507; Lelandv. Toucey, 6 Hill, 328; Holmes v. Davis, 19 14. Y., 488; Frost v. Duncan, 19 Barb., 560; Wohler v. B. and St. L. R. R., 46 N. Y., 686; Sedgwick on Dam., 46, and cases cited, p. 66; Mahon v. N. Y. C. R. It, 24 K Y., 658.)</p> <p>Plaintiffs were entitled to recover for defendant’s unauthorized occupation of Washington street. (Williams v. N. Y. C. R. R. Co., 16 14. Y., 97; Craig v. Rock. City and B. R. R. Co., 39 id., 404; RocJi. G. B. Co. v. Calkins, 62 id., 386; Carpenter v. Oswego and Syra. R. R. Co., 24 id., 685; Mahon v. JST. Y. C. R. R. Co., 24 id., 658; Milhau v. Sharp, 27 id., 611.) Plaintiffs were entitled to recover as damages the difference between the value of the land before and after the railroad was built. {Crawford v. Vil. of Delaware, 7 Ohio St., 459; Cumminsville v. Cin. R. TV. Co., 14 id., 524; Haynestv. Thomas, 7 Xnd., 88; Tate v. Ohio and Miss. R. R. Co., 7 id., 479 ; Bosnian v. I. and C. R. R. Co., 9 id., 467; Dockland v. Worth Mo. R. R. Co., 31 Mo., 180; Rowan, Bxr. v. Town of Portland, 8 B. Munroe, 282; Drake v. Hudson R. R. Co., 7 Barb., 508; Fletcher v. Auburn and S. R. R. Co., 25 "Wend., 462; Mahon v. U. and S. R. R. Co., Lalor, 150; S. C., 24 N. Y., 658.) The defendant being a trespasser, was therefore liable for all the damages which natural Ly or necessarily resulted from such trespass. (3 Duer, 406; 6 id., 315; Chase v. W. Y. C. R. R. Co., 24 Barb., 273.) The nlost defendant can claim is that the'rule applied in assessment of damages for taking lands for the use of a railroad should be applied, which would be the difference between the fair marketable value of the whole land and of that not taken. {Matter of R. and S. R. R. Co., 4 Paige, 553; Kogle v. A. and Roch. R. R. Co., 2 Barb. Chy., 489; Wand v. Same, 4 Seld., 160; T. and B. R. R. Co. v. Dee, 13 Barb., 169; Road v. W. W. and Brie R. R., 18 id., 80; Furniss v. H R. R. R., 5 Sand., 551.)</p>

This action was brought by plaintiffs as trustees under the will of Robert M. Blackwell, deceased, to restrain the receiver of taxes of Long Island City from selling, for non-payment of taxes, certain real estate in that city owned by them as trustees, and to compel said receiver to take the tax assessed and to release the lands from the incumbrance. The facts appear sufficiently in the opinion.

This action was originally brought against Ann Lohman for the alleged conversion of ten United States 11,000 bonds. Upon her death, the present defendant, as her executrix, was substituted as defendant. Plaintiff claimed that the bonds were given to him by the deceased, and that subsequently she took possession of and sold them. The evidence, on the part of plaintiff, as to the gift, is set forth substantially in the opinion.

(Reported below, 17 Hun, 573.) The nature of the action and the facts are set forth sufficiently in the opinion. The law of pledge must govern this case. (Markham v. Jandon, 41 K. Y., 242; Goggs v. Bernard, 2 Ld. Eaym., 915; Coke Litt., 89a/ 4 Cow., 836; Story on Bailments, 333-338; Jenkins v. Nat.

Arthur, for the reformation of a contract of insurance made between said Morris and the defendant on the 8th of December, 1875, and for the recovery thereon as reformed of a loss of §1,200, happening the 8th of March, 1876. The policy and the application for insurance were executed. and delivered on the same occasion, llie statements in the application were by the terms of the policy made warranties on the part of the assured.

(Reported below, 17 Hun, 270.) This action was brought by plaintiff, as receiver of the property of defendant Locke, to set aside an assignment made ,by liim for the benefit of creditors.

This action was brought against James H. Warner, the defendant’s intestate, to recover damages for injuries to a horse, wagon and harness, hired by him from the plaintiff, and which had been injured while in his custody, as is alleged, by the negligence of himself or of those for whose .acts .he was legally responsible.

) This was an action to recover damages for alleged illegal-acts of defendants. The complaint charged the” defendants with unlawfully, and with intent to injure the plaintiffs, seizing the barque “ Kedar,” in which the plaintiffs were half owners; and interrupting her voyage from Gibara, Cuba, to Valparaiso, for which she was then under charter, subjecting the plaintiffs to large losses.

, in the first judicial department, modifying and affirming as modified an order of Special Term.

(Reported below, 17 Hun, 573.) The nature of the Special Term order and the facts appear in the opinion. Costs having been •awarded to abide the event, without stating to which party, the one succeeding on the new trial is entitled to them. {Koon v. Thurman, 2 Hill, 357; Van Wyck v. Baker, 11 Hun, 309; Lottie v. Krakauer, Daily Register, Feb. 12, 1879; Mott v. Consumer’s Ice Co., 8 Weekly Digest, 145; Flynn v. Fq. L. Ass.

(Reported below, 18 Hun, 487.) The facts appear sufficiently in the opinion. The court erred in charging the jury in effect that they should bring in either a verdict of murder in the first degree, or else a verdict of acquittal.

The nature of the action and the facts are set forth sufficiently in the opinion. Under the allegations of the complaint, plaintiff could not give evidence of what was claimed to be a conspiracy.

<p>In an action to recover damages for the alleged negligent killing of M., plaintiff’s intestate, plaintiff’s evidence was to the effect that at the time of the accident M. was going south on the west side of an avenue running north and south in the city of New York. Defendant had a yard on the east side of the avenue, with a number of tracks running therefrom across the avenue, curving to the north as they leave the yard. Just north of the yard is a row of buildings, so that it was difficult, if not impossible, for a person approaching the tracks from the north to see into the yard along the north track, until on the track itself. M. halted near that track for a freight train to pass on one of the other tracks. She then moved on, when she was struck and killed by an engine which suddenly left the yard on the north track, moving at the rate of from ten to twelve miles an hour. The engine was moving backward with tender in front; on account of which neither the fireman, who was running the engine, nor employes upon the cars attached, could look west. No bell was rung, or whistle blown; no flagman was at or near the place, although one was usually stationed there. Held, that the questions of negligence and contributory negligence were for the jury, and a motion for nonsuit was properly denied; that it was a question of fact whether M. could have seen the train in time to have avoided the accident.</p> <p>Also, held, that testimony of a witness as to what occurred after the accident was competent as part of the res gesta.</p> <p>Also, that evidence was competent that it was the custom of defendant to keep a flagman at the place in question.</p> <p>Also, held, that a charge of the court that if the bell was not rung defendant was guilty of negligence, and a refusal to charge that it was not bound by statute to give notice of the approach of this engine by bell or whistle were not error.</p>

This action was brought by plaintiff to restrain defendant from interfering with the construction of its road in the defendant’s streets. The facts are set forth in the opinion.

The nature of the appeal and the facts áre set forth sufficiently in the opinion. (Reported below, 18 Hun, 358.) Executors acting as trustees are allowed the same compensation for their services by way of commissions as are allowed by law to executors.

S., 619, § 44) to compel George L. Marvin to pay the costs in this action. The costs were refused on the sole ground that the court had no power to grant them; it recognizing the justice of the applicant’s claim therefor. The respondent should pay the expense of the special proceedings. (2 E. S., 619, § 44; Laws 1854, chap. 270, § 3.) The order of General Term should be affirmed. (In re Spellman v. Terry, 74 hi. Y., 451.) The appellant was only entitled to costs of motion.

<p>Where a deed, absolute on its face, is claimed to have been intended simply as a mortgage, proof of an express promise to pay on the part of the alleged mortgagor is not absolutely essential to sustain the claim; the absence of such a promise tends strongly to disprove it, but is not conclusive against it.</p> <p>The farm of M. having been sold on execution, and proceedings having been instituted to foreclose a mortgage thereon, B., the brother of Mrs. M., agreed with her to bid oif the place on the foreclosure sale, purchase the other incumbrances thereon, and hold it for her benefit; and to secure him for the moneys paid, etc.; she agreeing to pay all expenses, and also for B.’s time and services, and to relieve him in a specified time. B. thereupon performed the agreement on his part, and immediately after the purchase took possession and received most of the avails until Mai'ch 31, 1866 Previous to that date the parties settled and adjusted the amount due B. for the liens and charges paid by him, other than the price paid at the foreclosure sale, and the amount paid to redeem from the sale on execution, and for his own time; on that day B. presented his claim for what he had paid out in addition to the sum found due on the former settlement. Mrs. M. paid the sum so claimed, received a deed, and gave a mortgage for the sum so found due. This action was commenced in 1874 to recover back an alleged over-payment. Held, that it was a question of fact for the referee, as to whether the arrangement amounted to a conditional sale, or whether it placed B. in the position of mortgagee; that the 2-ight of Mrs. M. as mo2'tgagor having been established by the findings of the i>efe2'ee, it could only be extinguished by legal proceedings or by her refusal to redeem when propeiiy called upon; and that, therefore, Mrs. M., at the time of the conveyance to her had a right to the conveyance upon reimbui-sing B. as ag2-eed, also to an accounting to ascertain that amount; but that it was competent for the parties to act upon the statement of B.</p> <p>The l-eferee, in stating an account between M2-s. M. and B., found that the items of expenditm-es, etc., exceeded the amount cha2'ged by B. He ci’edited Mi’s. M., among other things, for services 2‘endei’ed for boai'ding the help working on the farm while B. was in possession, and for use of teams and tools, etc. B. pleaded the statute of limitations. Held, that the credit was error; that such indebtedness had no connection with the agreement under which B. pui'chased; that while it might have been applied by the parties to reduce the advances, it was not, and no right of application existed without agreement; that the claim therefore was, at the time of the"' conveyance, a simple debt, upon which an action might have been brought; that the same wasdbarred by the statute; and that the bar was not removed by changing the form of the action.</p> <p>The l-eferee found that defendant kept no accurate account of the income of the farm while in possession, and that it was not worked at its full capacity; and charged B. with the rental value thereof, also for wood cut upon the farm by him. Held, error; that in the absence of a finding of willful default B. would have been chargeable only for the rents and profits actually received and for the wood ; but that as the omitted C2’edits related solely to the matter of 2'edemption, and as the 2'cdemption was perfected and the mortgage claim satisfied without allowing them, the relations of the parties changed fr'om that of mo2-tgagee and mortgagor to debtor and creditor; that for the amount ove2-paid an action at law lay in favor of Mrs. M., against which cause of action the statute of limitations run; and so was a bai\</p> <p>The referee found that Mrs. M. disco vei’ed the mistake in July or August, 1872. Held, that this did not pi-event the running of the statute prior to that time.</p> <p>Plaintiff asked to have the moi’tgage given by Mrs. M. canceled. The referee found there was no fraud or mistake in the final settlement, but after finding that the payment made to B. in March, 1866, exceeded the amount due, -applied the surplus on the debt represented by the mortgage and directed it to be canceled. Held, error; that as the money was paid upon a claim, growing out of a distinct contract, from, that under which the mortgage was given, and as the surplus was created in defendant’s hands by charging him with moneys received out of the estate under his equitable contract, it could not be applied upon, and could not invalidate the mortgage.</p> <p>Also held, that the fact that this equitable relief was sought did not remove the bar of the statute.</p>

(Reported below, 14 Hun, 343.) The facts appear sufficiently in the opinion. Chapter 695 of the Laws of 1871 authorizes the county court to order the supervisors to return the amount collected of any tax illegally assessed.. (In re N. Y. Catholic Protectory, 8 Hun, 91; 71 N. Y., 485, 486; 15 id., 316; 11 id., 563; 58 Barb., 434; 49 N. Y., 243, 352; People v. Suprs. of Chen. Co., 11 id., 563, 574, 575; People v. Reddy, 43 Barb., 540; Nat.

(Reported below, 15 Hun, 521.) This was an action upon a policy of life insurance issued by defendant upon the life of John II. Flynn, plaintiff's intestate. It is reported upon a former appeal in 67 II. Y., 500. By the policy the declarations and statements of the insured in his application were made warranties. The defense was a breach of warranty, in that some of the statements in the application were untrue. The application was filled out by Dr. R. II.

the Superior Court, of the city of New York, affirming a judgment in favor of plaintiffs, entered upon a verdict. This action was brought to recover rent alleged to be due under a lease of certain premises in the city of New York.

(Reported below, 17 Hun, 515.) The plaintiff’s attorney after service of the offer served on defendants’ attorney a notice declining to accept. Plaintiff recovered a less amount than the sum offered.

(See note of decision below, 17 Hun, 327.) This action was brought by plaintiff, as receiver of the Third Avenue Savings Bank, upon a bond executed by defendant and the other obligors named therein, of the body of which the following is a copy : “ Know all men by these presents, that we, William A. Darling, John H. Lyon, Daniel Bates, W. D. Burns,William B. Harrison, James Stephens, Andrew Stephens, James Owens, Richard Kelly, D. D. T. Marshall, David Morgan, George Hencken,…

(Reported below, 17 Hun, 555.) The provisions of section 870 of the Code of Civil Procedure authorized the examination of defendant’s directors before trial as parties. (Qlenny v. Stedwell, 64 1ST. Y., 122, 123, 125-127; Kingv. Leighton, 58 id., 385, 386; McCall v. McCall, 54 id., 551; Carr v. G. W.I. Ob., 3 Daly, 160; W. S. Ble. v. Pugsley, 47 NY, 368; 2 Story’s Eq. Jur., § 1501; 2 Story’s Eq.

<p>A proceeding under the act of 1858 (chap. 338, Laws of 1858) to vacate an assessment in the city of New York, at least when instituted at Special Term, is a special proceeding within the meaning of the act of 1854 (chap. 270, Laws of 1854), authorizing the allowance of costs in such proceedings.</p> <p>It seems, that the distinction between proceedings instituted at Special Term, and those commenced before a judge at chambers, is disregarded in the Code of Civil Procedure (§j 1356, 1357).</p> <p>The provision of the act of 1859 (§ 2, chap. 262, Laws of 1859), in reference to payment of costs by municipal corporations, which prescribes that no costs shall be recovered in any judgment against such a corporation, unless the claim upon which the judgment is founded was presented for payment to the chief fiscal officer thereof before suit brought, has no application to the costs of such proceedings.</p> <p>In proceedings instituted under said act of 1858, the Special Term vacated the assessment with costs to the applicant, from which order no appeal was taken; costs were taxed as in an action which were struck out by the General Term on appeal from an order of Special Term denying a motion to strike out. Held, error; that said applicant was entitled to costs,at the rate allowed for similar services in civil actions.</p>

<p>Decided on the facts in the case.</p>

This was an action upon a promissory note, alleged to have been indorsed by defendant Brown, who alone appeared and answered. (Mem. of decision below, 5 Him, 112.) The name of Brown was indorsed upon the note by one Lyon, and one of the principal questions litigated was as to Lyon’s authority. The referee found certain facts from which he in effect held that Brown was estopped from questioning the authority of Lyon.