Volume 79 — New York Reports

The nature of the action and the facts are set forth sufficiently in the opinion. The case upon a former appeal is reported 56 N. Y., 334.

Supreme Court, in the first judicial department, affirming a judgment in favor of plaintiff, entered upon the report of'a referee. This action was brought by plaintiff as receiver of the German Savings Bank, of the town of Morrisiana, to foreclose a mortgage executed by defendant Thiel and wife. The facts appear sufficiently in the opinion.

<p>Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, affirming a judgment in favor of defendant, entered upon an order dismissing plaintiff’s complaint on trial. .(Reported below, 14 Hun, 591.)</p> <p>This action was brought against defendant as .sheriff of the county of Queens, for an alleged false return to a warrant of attachment issued to him, against the property of one Peck, and also to the execution issued upon the judgment in the attachment suit,.</p> <p>The attachment was issued to defendant February 6th, 187 7. At that time he had in his possession a large amount of personal property of said Peck, which had been levied upon January 8,1877, underand by virtue of an execution against Peck. On February 3d, 1877, Peck made a general assignment of all his property for the benefit of creditors. Defendant sold under the execution February 14, 1877. After he had sold sufficient to satisfy the execution, the assignee demanded possession of the residue 'and upon refusal of the attaching creditors to indemnify defendant turned over the property to said assignee, and made return of nulla bona to the attachment and the execution.</p>

<p>Appeal from judgment of the General Term of tho Supreme Court, in the third judicial department, affirming so much of the judgment herein as held that defendant Gleason had acquired a title to fifty-five acres of the lands, to foreclose a mortgage whereon this action was brought, superior to said mortgage. (Reported below, 14 Ilun, 245.)</p> <p>The facts are.fully, set forth in the prevailing opinions.</p>

The plaintiff in error was indicted for perjury. Upon application of the district attorney, made without notice, an order was granted at Special Term directing the issuing of a writ of certiorari removing the indictment from the Court of Oyer and Terminer, in and for the county of Sara-toga, into the Supreme Court. A motion ivas thereupon made at Special Term, on behalf of the prisoner, to set aside said order and to quash the writ issued under it, which motion was denied.

Merritt, deceased. (Reported below, 14 Hun, 551.) Said Merritt died, leaving no widow, child,- father, mother, brother, sister, descendant of any brother or sister, uncle or aunt. He left a number of first cousins, and children of deceased first cousins. The surrogate adjudged that the only persons entitled to share in the distribution of the personal estate wer’e the first cousins.

(Reported below, 16 Hun, 86.) This action was brought to redeem certain premises described in the complaint from the lien of a mortgage, and for an accounting of the rents and profits.

<p>In proceedings under the provision of the railroad act (subd. 6, fj 28, chap. 140, Laws of 1850) by one railroad company to acquire the right to cross the railroad of another company, the petition was verified by one styling himself the consulting engineer of the petitioning company; it did not appear that he was an officer of said company; the other company answered the petition on the merits and, went to a hearing on the petition and answer; it did not appear that any objection was made as to the verification. Held, that it was too late to raise the objection on appeal to this court; that by omitting to raise it below, it was waived. (Danporth, J., dissenting.)</p> <p>A defect in the verification of the petition is not a jurisdictional defect. (Danforth, J., dissenting.)</p> <p>The petition alleged the inability of the two companies to agree upon the points and manner of crossing, and the compensation to be made therefor ; this was not denied in the answer, and there was no offer to disprove it. Held, that proof thereof was not required to be given by the petitioner.</p> <p>In such proceedings proof is not required on the part of the petitioner as to allegations of the petition not put in issue.</p> <p>Said act authorizes more than one crossing by a railroad company of the track of another road.</p> <p>The fact that the road of the petitioning company, at some points, is parallel with the road sought to be crossed, does not exclude said company from the provisions of the act.</p> <p>The points of crossing are not necessarily fixed by the notice of the location of the new road, and the failure of the company, whose road is sought to be crossed, to object within fifteen days. The general provisions of the statute in regard to such location, and the right of property owners to object, are not applicable.</p> <p>Objections to the proposed points of crossing, on the ground that they-interfere with lands of the old company, already appropriated for stations, etc , are not proper to be raised on application for the appointment of commissioners; they are matters to be considered by the commissioners.</p> <p>It seems, that said act does not authorize the invasion of lands or buildings already appropriated to railroad uses which, in their nature, require an exclusive occupation, or which would be materially impaired by subjecting the land to the new use.</p> <p>Ij seems, also, that if the commissioners, in. locating the crossings, violate the legal rights of the old company, in the respect last mentioned, their aclion is reviowable.</p> <p>So, also, it seems that the right to object to disturbance in the enjoyment of premises, devoted to public uses which require the enjoyment to be exclusive, is not waived or forfeited by an omission to apply within the statutory time for a change of location.</p>

The petition stated that the road sought to be crossed belonged to the Troy and Bennington Company, but was leased by it to the Troy and Boston Company, and was operated, by the latter company. The petition averred that the petitioner had applied to the Troy and Boston Company to agree on the points and manner of the crossings and the compensation therefor, hut that such an agreement had been refused by said company.

<p>It is not, as matter of law, negligence for a person approaching a railroad in a carriage, upon a highway, not to stop ; his omission to do so is a fact to be submitted to the jury.</p> <p>In an action to recover damages for alleged neg-ligence, causing the death of 0., plaintiff’s testator, who was killed at a railroad crossing, it appeared that the railroad track runs north and south, the highway east and west; at the crossing and on both sides thereof there was a cutting for' the railroad track; and one also for the highway east of the tracks seven or eight feet deep, for a considerable distance, with a board fence, and other obstructions to view on the top of the embankment to the south. 0. approached the crossing from the east, in a one-horse wagon. He was driving at a very slow trot with one hand, holding- a pail in the other; the train, by which he was killed, came from the south at a high rate of speed, and as plaintiff’s evidence tended to show, without ringing a bell. 0. was familiar with the crossing, and with the running of trains; he approached the crossing about the time trains were due both ways; the wind at the time was blowing from the north; C. was seen a moment before he was struck by the engine looking towards the north. Held, that the questions of negligence on the part of defendant and contributory negligence on the part of C. were of fact for the jury.</p> <p>In such an action evidence, on the part of the defendant, that the life of the deceased vas insured is incompetent.</p>

This action was brought by plaintiff, as executrix of the will of James W. Emery, deceased, upon the following instrument executed by defendant. “ New York, January 1, 1873. “I hereby agree to pay to Mr. James W. Emery four and three-eighths per cent of the net ascertained profits of the existing firm of John T. Wilson & Company, as the same may be during the year 1873. “ JOHN T. WILSON.” Said Emery, the defendant, and one Alexander Simpson, entered into co-partnership in…

This action was brought to recover as upon a quantum :meruit, for services alleged to have been rendered by plaintiff, at the request of George Hardin, defendant’s intestate, in taking charge of and caring for his property. The facts are sufficiently set forth in the opinion.

<p>A person, claiming land under a defective conveyance, having entered into actual possession of a xiart claiming the whole, may have constructive possession of the residue.</p> <p>This is so, however, only when the part not actually possessed is for use with, or subservient to, that so possessed; it must have some necessary connection therewith.</p> <p>In an action of ejectment plaintiff claimed under a void deed from the State comptroller, executed in 1836, purporting to convey, with other lands, the north-west quarter of a certain township containing 6,300 acres. Defendant unlawfully, entered into possession of 2,000 acres of the north part of the said quarter. Plaintiff gave evidence to the following effect. He had paid the taxes on the land claiming title thereto, and caused the same to be surveyed. About 1852 he caused some lots to 'be surveyed in the north-west corner of said quarter, lot one containing 950 acres. In 1856 one R., under an arrangement with plaintiff, cut from this lot a quantity of. logs, paying plaintiff therefor. In 1864 plaintiff hearing that defendants intended to enter upon the land, arranged with R. to go upon it, cut some logs, and build a shanty for the purpose of thus gaining possession. R. that winter went upon said lot one, cut logs and built a shanty without a roof, cutting over less than a quarter of an acre, and remaining thereon about three weeks; in the summer of 1865 R. put a roof on the shanty, and built a barn. In the winter of 1865-1866 after the commencement of the action R. went upon the said lot under plaintiff, cut roads and cut a large quantity of logs. Held, that plaintiff did not show such possession as entitied him to recover for anything more, at most, than the small piece of cleared land upon which was the shanty and barn.</p>

<p>Appeal from, judgment of the General Term of the Supreme Court, in the fourth judicial department, affirming a judgment in favor of plaintiff, entered upon the report of a referee.</p> <p>The nature of the action and the facts appear sufficiently in the opinion.</p>

This action was brought upon a promissory note made by the defendant, payable to the order of the plaintiff.

This action was brought upon a covenant on the part of Albert Clark, defendant’s testator, hereinafter stated. The referee found, substantially, the following facts : On or about the 1st day of May, 1855, one William C. Rhinelander and Mary, his wife, executed to James Hume and William H. Hume, a lease of certain premises in the city of Hew York for the term of twenty-one years from May 1, 1855, at and for the annual rent of $4,000.

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, in favor of defendant, entered upon an order setting aside a verdict in favor of plaintiff and directing judgment for defendant. (Reported below, 14 Hun, 428.)</p> <p>This action was brought for contribution as between co-sureties.</p> <p>On the 28th day of September, 1872, one Ann Burgess reovered a judgment in the Supreme Court against Joseph Eaton. Eaton appealed, giving a joint undertaking executed for that purpose, signed by the plaintiff and by the defendant’s testator, Charles M. Brockway. On the 5th day of July, 1873, the judgment against Eaton was affirmed. Said Brockway died on the 3d day of January, 1873. On the 28th day of August, 1873, said Ann Burgess commenced an action against the plaintiff as surviving obligor on said undertaking, which action was prosecuted to judgment; said judgment being perfected September 11, 1873, execution thereon was issued, and plaintiff paid the amount of the execution on the 11th day of November, 1873. On the 13th day of September, 1873, the defendant, as executor, procured from the surrogate of Monroe county, who had jurisdiction thereof, an order for the publication of claims against the estate of his testator, and the notice for claims was first published, in accordance with said order on that day. On the 15th day of April, 1874, plaintiff presented to the executor a claim for contribution claimed to have accrued to him by virtue of his having paid the Burgess judgment, -which claim the said executor rejected on the same day. This action was commenced the 28tli day of November, 1876.</p> <p>In the notice so published the deceased was called Charles Brockway ; there was a Charles Brockway at that time living in the same town. On May 27, 1874, defendant wrote the„ plaintiff’s attorney offering to submit the controversy under section 372 of the Code of Procedure. Said attorney wrote to defendant a letter March 6, 1876, accepting this proposition. - No notice of this letter was taken by defeud- . ant. The court on. trial directed a verdict for plaintiff for one-half the amount paid by plaintiff, subject to the opinion of the court at General Term. A verdict was rendered accordingly.</p>

<p>Appear from judgment of the Genera.! Term of the Supreme Court, in the second judicial department, affirming a judgment in favor of plaintiff, entered upon the decision of the court on trial without a jury.</p> <p>This action was originally brought against William S-. Brown, as executor of the will of Samuel Brown, deceased, to recover interest on a legacy given to plaintiff by said will. After the decision was filed, but before judgment was perfected, said defendant died ; by order of the court judgment was entered as of the date of the trial. The present defendants, the administrator' with the will annexed of the said testator, and the administrators of the original defendant, were subsequently substituted as defendants.</p> <p>The facts appearing on trial are sot forth sufficiently in the opinion.</p>

The referee to whom the matter was referred found, substantially, the following facts : That' prior to November 3,1874, the defendant, Seaman N. Snedelcer, the mortgagor, was the o wner of the mortgaged premises.

(Mem. of decision below, 16 Hun, 615.) This action was brought to- compel defendant, as lessee of certain premises in the city of New York, to accept a renewal of the lease for a further term. The question was simply as to the construction of the lease, of which the following is a copy: “ This indenture, made the 28th day of February, in the year 1856, between Dorothea A. L. Wolfe, wife of JohDavid Wolfe, and the said John David Wolfe of the first part and.

This action ivas brought upon a check dated March 8, 1871, drawn by defendant upon the Third National Bank of Buffalo, payable to the order of Edwin A. Holbrook. It is reported upon a former appeal in 71 N. Y., 435. The defense was that the check was given in contravention of the provision of the bankrupt act (§ 45) prohibiting officers of courts of bankruptcy from taking auythiug other than the fees allowed by the act.

This action was brought by plaintiffs, as tax-payers of the town of Sheldon, Wyoming county, to restrain defendant, the Attica and Arcade Railroad Company, from negotiating certain bonds of the town, issued to it by defendants, Parker and others, as commissioners, appointed for that purpose, by a judgment or decision of the court in proceedings under the act authorizing municipal corporations to aid in the construction of railroads (chap. 907, Laws of 1869) ; also to have…

These were cross-appeals from an order of General Term of the ■ Supreme Court, in the third judicial department, affirming in part, and reversing in part, a decision of a judge upon settlement of interrogatories, to he annexed to a commission herein; also appeal by defendant from order of said General Term, denying a motion to dismiss the appeal from the order settling the interrogatories.

This action was brought to recover moneys alleged to have been received by defendant belonging to plaintiff. The facts appear sufficiently in the opinion.

(Reported below, 17 Hun, 106.) This was an application for a peremptory writ of mandamus, requiring defendant, as auditor of the canal department, to issue his warrant on the treasurer of the State for the amount of, and to pay certain certificates issued by the canal commissioners. An alternative writ was issued, to which return was made. The relator traversed the issues tendered thereon, and the matter wits referred to a referee to hear and determine.

This action was brought to procure the cancellation and surrender of a policy of life insurance, issued by plaintiff upon the life of James H. Reals, for the benefit of his wife and children, the defendants herein.

This action was brought by the plaintiff, as assignee of one William Conley, upon a written contract executed by ■defendants, a copy of which was set forth in the complaint, and is as follows : “Agreement made this 31st day of May, 1873, between •John Washburn, N. B. Washburn and David A. Southerland, commissioners of the town of Gorham, and William Conley, •of the town of Potter, Yates county.

(Mem. of decision below, 14 Hun, 487.) This action was brought to recover damages for the alleged taking and conversion of a quantity of malt which was levied upon by defendant as sheriff under and by virtue of an execution against Smith & Girvan.

The notice of appeal to the Court of Common Pleas contained an assent, that if the order appealed from was affirmed, judgment absolute should be rendered against the appellants.

This action was brought to foreclose a mortgage of $2,500, executed by defendant Flanagan and wife to one Jacob Hollwegs, and by the latter assigned to plaintiff. The defense was usury.

(Reported below, 15 Hun, 248.) This action was brought by plaintiff, as executrix of the will of Dean Richmond, deceased, upon two certificates of insurance issued by the underwriters agency at Oshkosh, Wis., to Wm. M. Berry & Co. of that place, insuring them against loss by fire on wheat in the Northwestern Agency in that city.

<p>A railroad corporation owes a duty, to one employed upon one of its engines, to see that the engine is fit and proper for his use in the performance of the labor he has undertaken; this duty is not discharged simply by employing fit and competent agents to supervise the engine, and see that it is in fit condition; any negligence on the part of such agents, in the performance of their duties in this respect, is the negligence of the corporation.</p> <p>In an action to recover damages for alleged negligence causing the death of K., plaintiff’s intestate, it appeared that the death was caused by the explosion of the boiler of a locomotive upon which K. was employed as a fireman. Plaintiff’s evidence tended to show that the engine was infirm and weak, was frequently, and from necessity, taken to the repair shops for repairs; that it was unable to hold water, or sustain a full head of steam. Held, that the question of defendant’s negligence was-one of fact for the jury.</p> <p>Upon the cross-examination of S., a witness for plaintiff, who had given material testimony for him, and who had been in defendant’s employ, he was asked if he was discharged for inefficiency and drunkenness; if he was discharged at all; and if 0., his “ immediate boss,” did not assign these reasons for discharging him, to all of which he answered, “No.” O. was called by defendant’s counsel, who offered to prove by him, that he became aware that S. was in the habit of being intoxicated, -and neglected his duty, and that he was discharged for that reason. This was excluded. Held, no error; that the fact of his discharge was immaterial ; that if the discharge was for inefficiency or drunkenness, this could not be proved by way of impeachment, and was matter collateral to the issue, as to which the answers of S. were conclusive ; that if such grounds for the discharge were communicated to S., it might lay the foundation of an inquiry as to Ms feelings toward defendant; but "as defendant did not offer to show this, and as it was not disclosed on the trial that the offer was to show a hostile feeling, the question could not be presented here.</p>

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, affirming a judgment, entered upon the report of a referee. (Reported below, 14 Hun, 523.)</p> <p>The nature of the action and the facts are- sot forth sufficiently in the opinion.</p>

This action was brought originally by Paran Stevens, as plaintiff, against Matthew T. Brennan, as sheriff, to recover damages for the alleged unlawful taking and conversion of a quantity of furniture. Both of the original parties having died during the pendency of the action, the present parties were substituted. The furniture in question was sold by Herter Bros, toE.

an order of the General Term of the Superior Court of the city of New York, affirming an order of Special Term, denying a motion for a new trial under the statute (2 E. S., 309) in an action of ejectment. The facts appear sufficiently in the opinion.

■■ This action was brought to recover the purchase-price agreed to be paid in and by a contract between the parties. The contract recited that plaintiff was the inventor of an improved cotton gin and condenser attached thereto, and had applied for letters patent therefor ; this he contracted to sell to defendants, and to assign the letters patent when issued, for a sum specified.

<p>A receiver of an insolvent life insurance company may, at any time, apply . to the court for instructions in regard to any matter touching the fund placed in his custody. Especially is this so where the fund, through his error, is in danger of being unfairly distributed.</p> <p>The receiver owes a lite duty to all claimants upon the fund; and it is his duty, as far as possible, to see that each, has an equal opportunity to enforce his claim.</p> <p>A receiver of such a company obtained an order as prescribed by statute (2 R. S'., 46T, 5 56), for publication of notice to creditors, requiring them to exhibit their claims within a time specified. Before the expiration of the time the receiver addressed a circular to policy-holders, to the effect that policies in force on the books of the company would be allowed without subjecting their holders to further pi’oof; misled by such circular the holders of such, policies did not make proof of their claims'. These were objected to by other creditors, and were rejected by the referee to whom it was referred to take proof as to distribution of the assets. Whereupon, and before any dividend had been made, the receiver applied for and obtained an order giving two months further time within which such claims could he presented and established before the referee. Held, that the receiver was authorized in making the application ; that the court had power, in its discretion, to grant it; and that the exercise of' this discretion was not reviewable here.</p> <p>In re H. F. and M. i»s. Go. (45 N. Y., 310), limited and distinguished.</p> <p>The power and discretion of the court in reference to- publication of notice in such case, may be exercised to the same extent as in other proceedings or actions, save that the notice must be for “not less than six . months” (Í) 56); and the power of the court is not exhausted by making an order.</p>

(Reported below, 14 Hun, 581.) This action was brought to foreclose a mechanic’s lien upon certain premises in the county of Queens. The facts appear sufficiently in the opinion.

<p>People ex rel. Dailey v. Livingston, (18 Hun, 59), reversed.</p> <p>Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, affirming a judgment in favor of relator, entered upon a verdict. (Reported below, 18 Hun, 59.)</p> <p>The nature of the action and the facts are set forth sufficiently in the opinion.</p>

(Reported below, 13 Hun, 643.) This was an action of ejectment to recover possession of certain premises in the city of Buffalo, over which defendant, under a license or permit from the common council, had laid its track. The land in question had been taken by the city under and by virtue of proceedings under the act chapter 547, Laws of 1864.

(Reported below, 10 Hun, 288.) This was an action of ejectment to recover possession of the undivided third part of certain lands in the town of Frankfort, Herkimer county. The plaintiff claimed as a remainderman under a deed of trust, executed by her parents, Matthew Codd and Martha, his wife, in 1808.

These are appeals by the plaintiffs and various of the defendants from a judgment of the General Term of the Supreme Court, in the first judicial department, which modified and affirmed as modified a judgment, entered upon a decision of tho court on trial at Special Term. (Mem. of decision below, 17 Hun, 341.) This action was brought by plaintiffs as executors of the will of Henry A. Kerr, deceased, to obtain a construction of said will.

<p>It seems, that the commissioner of public works in the city of New York, being charged with the care of the public buildings (§ 71, chap. 335, Laws of 1873), has the power to appoint janitors to take charge of the buildings in which the pólice and district courts are located.</p> <p>Plaintiff was appointed by said commissioner janitor of the building occupied by the police court of the second district, and by the district or civil court of the third district; the justice of the latter court appointed C. janitor for that court. The board of estimate and apportionment made an appropriation for the salary of one janitor for said building’, conditioned however, substantially, that no portion thereof should be paid by the comptroller to either appointee until the question was judicially determined that he was and that the other was not entitled to be paid. Sell, that the appropriation could only be availed of in an action or submission, to which both claimants were parties, and then only on establishing that the power to appoint janitors was exclusive, either in the court or the commissioner, and that there could be but one janitor; and that, therefore, plaintiff was not entitled to judgment upon a submission of the controversy under the Code of Civil Procedure (§ 1279) as between him and the city, to which C. was not a party.</p>

<p>In an action for an accounting between a surviving partner and the representatives of a deceased partner, the former is entitled to credit for all sums paid by him to the latter, after their appointment, out of funds collected by him as surviving partner.</p> <p>In the case upon appeal, in such an action, it appeared that, plaintiff, the surviving partner, testified without objection to payments so made; in a subsequent part of the case it was stated that it was understood plaintiff should produce vouchers; it did not appear what vouchers were wanting, or that there was any application to strike out the testimony in default of such production, nor was there any objection, ruling or exception on the subject of the necessity of the vouchers. Held, that this question not having been raised on the trial could not be raised on appeal.</p> <p>Plaintiff, in making payments of the indebtedness of the firm, advanced moneys from time to time from his own funds, in excess of the amount in his hands as surviving partner. Held, that he was entitled to interest on such advances.</p> <p>The findings of the referee did not' show upon what particular payments interest was allowed. Held, that it could not be claimed that too much interest was allowed, as there was no specific finding disclosing any such error.-</p> <p>To reverse the conclusions of law of a referee it must appear from the facts found that they are erroneous.</p> <p>At the time of the death of P.-, the deceased partner, the firm had contracts for the manufacture and sale of articles under patents belonging to the firm or the partners jointly, which contracts were for a period extending beyond the time of such d.eath. It appeared that large profits would have been realized by the firm, had it continued and the other parties bad remained solvent, in carrying out said contracts ; it did not appear, however, that they had any value aside from the value of the use of the patents. Defendants sold and assigned to plaintiff the interest of their testator at the time of his death in the stock, fixtures, etc., of the firm, and also in said letters patent, and in the lease of the ware- , house occupied by the firm, plaintiff agreeing to assume and pay all salaries due employes, etc., accruing subsequent to the death of P. In none of the writings was any reference made to the outstanding contracts, held, that the transfers, étc., afforded a strong inference that the intent of the parties was that plaintiff should continue the former business on his own sole account, and that no benefit was intended to be reserved to defendants from manufactures under said contracts; and that a finding that defendants were not entitled to any credit or allowance on account of the contracts was justified.</p>

a referee. This was an action to foreclose a mortgage securing tho sum of $4,500, executed by* defendant, Hannah A. Avery, to Burr Burton, plaiutifis’ testator, dated October 12, 1863. After the said mortgage was executed and recorded, defendant Dada and one Morrill purchased from Miss Avery, the mortgagor, a part of the mortgaged premises.

The complaint in this action alleged a sale and delivery by plaintiff to defendant of certain tinners’ machines and tools specified at, and for the price of, $300.

<p>The only power conferred upon the hoard of health by the provisions of the act of 1871, “to provide for the proper drainage of lands,” in the •city of New York (chap. 566), is to direct the drainage of land by means other than sewers, where surface water, injurious to public health, could not be carried off by the sewers; and to assess the expense upon lands benefited by the drain, the area of assessment being restricted to the . lands between the drain and the adjacent streets and avenues. -</p> <p>The commissioner of public works, in pursuance of a requisition of the board of health, directing him to cause the lands within certain bounds, which included many blocks and about seventy acres of sunken land, to lie drained by other means than sewers, caused drains to be dug and the lands to be filled in, the whole cost of the improvement being about §308,0C0, of which only §5,491.20 was for drains; §248,534.27 of the cost was assessed in one assessment upon the property owners, blocks of land being assessed through which the drains did not run. Sold, that said act did not authorize such improvement; also that, even if the filling in could be claimed as merely an incident to the construction of the drains, the assessment was illegal, as there was no authority for mingling in one assessment the costs of drains running between different streets.</p>

(Reported below, 9 Hun, 461.) This was an action of ejectment to recover possession of certain premises situate in Monroe comity. Defendant set up as a defense a former suit pending. The facts are sufficiently stated in the opinion.

Appear from j udgment of the General Term of the Supreme Court, in the second judicial department, affirming a judgment of the City Court of Brooklyn.* This case was removed into the Supreme Court by reason of the incompetency to sit of a majority of the judges of the General Term of the city court. This was an action of ejectment. At and prior to July 12, 1853, the premises in question were owned in fee by Tunis T. Cowenhoven.

This action was brought against defendants as trustees of the Saratoga Paper Company, to recover the amount of a judgment obtained by Henry Loseo, plaintiffs testator, against said company, on the ground of alleged failure on the part of defendants, as trustees, to make and file the annual statements required by the general manufacturing act (§ 12, chap. 40, Laws of 1848).

As to whether, under said act, any personal judgment can be rendered except for a deficiency, quaere. Appeal from order of the General Term of the Supreme Court, in the third judicial department, reversing a judgment in favor of plaintiffs against defendant Beach, and granting a new trial as to him. (Reported below, 14 Hun, 231.) These were proceedings under the general lien law to foreclose an alleged mechanic’s lien upon certain premises owned by Beach.

<p>Church v. Howard (17 Hun, 5), reversed.</p> <p>Appeal from judgment of tko General Term of the Supreme Court, in the.third judicial department, affirming a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 17 Hun, 5.)</p> <p>This action was brought by plaintiff as administrator of the estate of Mary M. Church, deceased, upon a promissory note, executed by defendants, which, in its original form, was as follows:</p> <p>“ $2,000. Two yeai's from date I promise to pay Mary M. Church, or bearer, two thousand dollars, with interest semi-annually, at seven per cent, in gold or its equivalent. Value received.</p> <p>“ Eaton, January 18, 1870.</p> <p>“ A. G. FARGO,</p> <p>“ SETH HOWARD, Surety”</p> <p>Defendant Howard alone answered, alleging the alteration of the note, without his knowledge or consent, by the erasure of the words, “ in gold or its equivalent.” He also pleaded the statute of limitatio2is.</p> <p>The facts, so far as pertinent to the questions discussed, appear sufficiently in the opinion.</p>

<p>Error to the General Term of the Supreme Court, in the fourth judicial department, to review judgment affirming a judgment of the Court of Oyer and Terminer, in and for the county of Livingston, entered upon a verdict convicting the plaintiff in error of the crime of murder in the first degree. (Reported below, 18 Hun, 239.)</p> <p>The facts appear sufficiently in the opinion.</p>

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, in favor of defendants, entered upon an order reversing a ‘judgment in favor of plaintiffs, entered upon the report of a referee, and directing final judgment for defendants.</p> <p>The nature of the action and the facts are set forth sufficiently in the opinion.</p>

(Reported below, 18 Hun, 293.) This was an action to foreclose a mortgage. The plaintiffs are the assignees in bankruptcy of the “ People’s Safe Deposit and Savings Institution of the State of New York, a corporation organized under the provisions of chapter 816, of the Laws of 1868.

(Reported below, 15 Hun, 371.) This action was brought upon a subscription by defendant to plaintiff’s capital stock, to recover certain calls or assessments upon said subscription. The facts appear sufficiently in the opinion.

■ Appeal from judgment of the General Term of the Supreme Court, in the fourth Judicial department, affirming a judgment in favor of defendant, entered upon an order nonsuiting plaintiff on trial, and affirming an order denying a motion for a new trial. This action was brought to recover damages for injuries alleged to have been sustained by plaintiff through the negligence of the employees of defendant. The facts are sufficiently stated in the opinion.

This action was brought to recover damages to plaintiff’s premises, situate in the city of Albany, alleged to have been caused by water, dirt and filth thrown and deposited thereon by the unlawful acts of defendant. Theffacts appear sufficiently in the opinion.

• Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, affirming a judgment, entered on the report of a referee. (Reported below, 14 Hun,-548.) The nature of the action and the facts arc set forth sufficiently in the opinion.

<p>Plaintiff and defendant were formerly partners in business, as. dentists, under the firm name of “ Morgan & Schuyler.” Upon the dissolution of the firm defendant bought plaintiff’s interest in certain firm property, and became equitable assignee of the unexpired term of the lease of the room occupied by the firm, in which he continued the business, using signs bearing his name, followed by the words “successor to Morgan & Schuyler.” There was nothing in the agreement of dissolution prohibiting plaintiff from engaging in the business, and it was understood at the time between the parties that he was to open an office for that purpose in another part of the city, which he did. In an action to restrain defendant from using plaintiff’s name, held, that defendant did not acquire, by the agreement of dissolution, any good will in the business,. except such as was incident to his sole ownership of partnership property, and his exclusive light to occupy the rooms of the late firm; that he was not authorized to use the firm name, or to declare himself “ successor to ” the late firm 5 and that, therefore, the action was maintainable.</p> <p>It seems, that defendant would have the right to describe his rooms as those formerly occupied by “.Morgan & Schuyler,” and himself as formerly, or late of that firm.</p>

<p>An order punishing for contempt, in violating an injunction, can only be reviewed, upon the merits or for alleged legal error, on appeal from the order.</p> <p>It is within the discretion of the court whether to open or vacate the order on motion, and the exercise of this discretion cannot be reviewed here. Where a party has been brought into court on attachment, in proceedings to punish for contempt, he may be represented by attorney in the subsequent proceedings.</p> <p>An order punishing defendants for contempt was granted by default. On motion to vacate the order, it was alleged, in the moving papers, that the attorneys who appeared for the defendants in the proceedings had no authority. The attorney, who appeared on return of the attachment, made affidavit that he was authorized; the defendants were also personally present; the same attorney appeared before the referee, to whom it was referred, to take proofs. Notice of motion for final order was served on, and service admitted by, attorneys who had appeared for defendants in the action, and who had also admitted service of the referee’s report. Held, that as the attorneys thus undertook to represent defendants, the mere allegation of want' of authority so to do did not invalidate the order.</p>

(Eeportcd below, 15 Hun, 51.) This action was brought upon a promissory note of $2,400, dated August 9, 1875, made by W. E. & E. D. Burr, payable two mouths from date to the order of defendant Wells, and indorsed by him for the accommodation of the makers.

(Reported below, 14 Hun, 619.) This was an action upon a policy of fire insurance. It appeared on the trial that the policy was issued by defendant’s agent in Hew York, who reported it to the home office in Ohio. By the policy defendant had the option to cancel it; it telegraphed to its agent to cancel it, unless the “ average clause ” was inserted; this telegram was not received by the agent until after the fire. The further facts appear in the opinion.

This action was brought to compel the defendant to release and discharge a lot owned by plaintiff in tho city of Ucw York from the lien of two assessments, imposed for local improvements, and to cancel of record the said assessments. The facts appear sufficiently in the opinion.

(Reported below, 12 J. & S., 190.) This action was brought to compel a specific performance of an alleged contract. The facts appear sufficiently in the opinion.

(Reported below, 9 Hun, 493.) This was an action of ejectment to recover possession of certain promises situate in the city of Ogdensburgh. Joseph Cole, father of the plaintiffs, died in 1836, seized of the premises, and leaving a widow and four children, all minors, him surviving. He left a will, by which he devised the same to his wife for life, remainder to plaintiffs; the wife was appointed sole executrix.

<p>Appeal from- judgment of the General Term of tho Supreme Court, in the first judicial department, affirming a judgment in favor of plaintiff, entered upon the report of a referee.</p> <p>This action was upon a promissory note made by defendants,-</p> <p>The facts appear sufficiently in the opinion.</p>

<p>It seems, that an obligation entered into by an insane person to repay money loaned, of which he had the benefit, is valid where the lender acted in good faith, without fraud or unfairness, and without knowledge of the insanity or notice or information calling for inquiry; and an action is maintainable thereon. ./</p> <p>The tact that the borrower was subsequently, upon inquisition taken, declared to be insane, does not afiectrlhe right to recover.</p>

The indictment charged : “ That heretofore, to-wit., on the first day of May, in the year of our Lord one thousand eight hundred and seventy-eight, at the town of Milton, in the county of Saratoga and State of Low York, before James W. Vorbeck, Esq., then and there being a referee duly and legally appointed in an action commenced and then pending in the Supreme Court of the State of Lew York, in which one John W. Eighmy was plaintiff, and Albert Eighmy and Alfred Eighmy,…

(Reported below, 8 Hun, 58. }■ This action was brought to recovera penalty for an alleged violation of an ordinance passed by plaintiff’s common council. The facts appear sufficiently in the opinion.

This was an action for an accounting brought by plaintiffs as executors of Isaac Geery, late of the firm of I. & W. Geery, against the surviving member of that firm.

This was an appeal from an order of the General Term of the Supreme Court, in the second judicial department, affirming an order of Special Term, granted on the petition of* defendant, the National Bank of Newburgh, purchaser on foreclosure sale herein, to the effect that certain articles of machinery specified are part and parcel of the real estate sold; and restraining the defendant James Bigler, the mortgagor, from removing the same or any part thereof from, the premises,…

Appeals from orders of the General Term of the Supreme .Court, in the second judicial department, affirming orders of the County Court of Kings county, which in each case dismissed an appeal to that court from a judgment of a justice of the peace. (Reported below, 19 Hun, 303.)

This action was brought for the dissolution of a copartnership, between the parties, and for an accounting as to partnership matters. The substance of the answer is set forth in the opinion.

<p>A supplemental complaint should not he allowed upon sea. ex parte application.</p> <p>notwithstanding the mandatory language of the Code of Civil Procedure (§ fi44), it is the duty of the court, upon the application, to consider ail the circumstances, and to grant or refuse it, as may he just and proper in the particular case; such application therefore should he upon notice, so that both parties may he heard.</p> <p>Where, upon the facts presented, the allowance of a supplemental pleading is in the discretion of the Supreme Court, the exercise of this discretion by the Special Tenp may be reviewed by the General Term, but not by this court.</p>

<p>The nature of the appeal «and the facts appear in the opinion. (Exported below, 18 Hun, 530.)</p>

<p>Error to the General Term of the Supreme Court, in the third judicial department, to review judgment affirming a judgment of the Court of Sessions, in and for the county of Ulster, entered upon a verdict, convicting the plaintiff in error, of the crime of assault and battery.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>The will of P. gave all of his estate, real and personal, to his executors in trust, with power to sell, and out of the proceeds of sale, or of the income, to pay to the wife of the testator a specified annuity during life, the same to he “in lien of all dower or thirds ” in his estate ; his residuary estate he gave, one-third to his wife, one-third to R., the balance he gave to his executors, “to be divided by them among such Roman Catholic charities, institutions, schools or churches in the city of New York ” as the majority of his executors should decide, and in such proportions as they should think proper. At the time of the testator’s death there were, in said city, many incorporated Roman Catholic charities, institutions, schools and churches capable of taking by • devise or bequest; and a majority of the executors designated certain of said organizations as the beneficiaries. In an action to obtain a construction of the will, held, that as there were organizations of the class specified capable of taking, and which could be ascertained, the provision as to them was not void for uncertainty; that the fact that power was conferred upon the executors to designate the beneficiaries, and the share of each, did not impair or affect the legality of the provision; that the executors were limited to such organizations as were capable of taldng; also that by the terms of the will there was an equitable conversion of the testator’s real estate into personalty.</p> <p>Norris v. Thompson’s Nx’rs (19 N. J., 307); Stubbs v. Sargon (3 M. &. C., 507; 2 Keen, 255); Morice v. Bishopof2). (10 Ves., 522); Ommmmyv. Butcher (1T. & R., 260), distinguished.</p> <p>It seems, that, had there been a failure to make the selection, the court would have power to decree the execution of the trust.</p> <p>Also, held, that the widow of the testator was entitled to one-third of the whole residuary estate, including one-third of the sum set apart and invested to produce the annuity; that the provision, giving to her a third, was not inconsistent with the provision providing for an annuity, but was a gift in addition to it.</p> <p>Where a testator authorizes his executors to sell real estate, and it is apparent from the general provisions of the will that he intended a sale, the doctrine of equitable conversion applies, although the power of sale is not in terms imperative.</p> <p>Orders were made directing the various corporations designated by the executors as the beneficiaries under the will to be brought in as parties defendants. Held, no error, that they were interested in the controversy, and were properly made parties under section 122* of the Code of Procedure.</p>

<p>Reported below, 15 Hun, 23.</p>

This was a motion to vacate an order of this court, directing the attorneys for defendant to return the remittitur for correction as to costs, if erroneous. It appeared that the remittitur had, at the time this order was made, been filed with the clerk bcloxv ; but it did not appear that any action had been taken thereon by the court bcloxv, an order was then made ex parte, correcting the remittitur as to costs.