Volume 8 — Bosworth's New York Superior Court Reports

Exceptions ordered at the trial to be heard in the first instance at the General Term: This suit is brought by the plaintiffs as assignees of one William Pearson, to recover moneys alleged to be due from the defendant, for grading and paving done for him by Pearson. The paving contract, so called, is in writing and* not dated, but was made in the winter of 1854.

Appeal by the defendant from a judgment against him, and from an order denying a motion for a new trial.

*Thb action was brought upon a policy of insurance, dated Hay 5, 1854, executed and delivered by. the defendants to the plaintiff, whereby they insured the brig Brenda, at and from the 22d day of March, 1854, until the 22d day of March, 1855, at noon, loss payable to the plaintiff. The vessel was valued at $20,000, and the policy subscribed for $10,000. The policy was to indemnify against the usual perils of the sea, &c, Each passage was subject to a separate average.

<p>1. A conveyance by one indebted at the time, made with intent to continue his business and to avoid the payment of debts to be subsequently contracted, is fraudulent and void as to such subsequent debts, the debts existing when it was made not having been wholly paid long before the failure of such grantor. ,</p> <p>2. Where, on the trial, by the Court without a jury, of an action brought to set aside a grant as fraudulent, declarations of- the grantor subsequent to the grant are offered to impeach testimony of the grantor and are admitted against objection and exception, and it appears by the opinion of the Court accompanying its decision, and only by such opinion, that the Court, on determining the facts, held and treated such declarations competent testimony to establish a fraudulent intent in making the grant, and was influenced thereby; the Court, on appeal from the judgment, will not hold the opinion such evidence of the existence of the error thereby declared, as to interfere with the judgment on that ground. {Per Robertson, J., Bosworth, Oh. J., contra.)</p> <p>3. Such declarations of the grantor, under the facts and circumstances proved in this case, are competent evidence in chief, to impeach the grant. (Hoffman, J.)</p> <p>4. When a deed is made with intent to defraud creditors by one at the time in debt, and who subsequently continues to be indebted, it is fraudulent and void as to all such subsequent, as well as existing creditors. (Hoffman, J.)</p>

<p>1. Where in proceedings to open a public place between designated streets in the city of Hew York, by widening one of said streets and closing a part thereof, pursuant to the statutes in that behalf, the commissioners report that a part of one of said streets (describing it) “ is required for the purpose of being'closed, and vesting the same to the use of the Mayor, Aldermen and Commonalty of the city of Hew York,” and award a specified sum for damages to be paid to the owner therefor, and such owner, with knowledge of the proceedings and of the fact that such sum is awarded to be paid as damages for divesting his title and vesting it in the corporation, accepts the sum so awarded, he is thereby estopped from alleging that he did not consent to such proceedings, and that the title to such premises did not become vested in the corporation.</p>

Appear by the defendants (who are Isaac Ames, John 0. Barnes, Thomas Rhoads and John Gr. Rhoads,) from a judgment in favor of the plaintiffs, (who are Jonathan K. Herrick and William Herrick,) entered' on the report of Hon. William Mitchell, as referee. The complaint states: 1.

Exceptions taken at the trial, and there ordered to he first heard at General Term. The plaintiffs, Mary Creed and George A. Creed, husband and wife, bring this action to recover damages for injuries to the wife, caused by her falling into an excavation, on the first of August, 1859, on the sidewalk in Third avenue, between Eorty-seventh and Forty-eighth streets, in the city of Hew York.

Appeal by the defendant Isaac L. Pinckney, from a judgment in favor of Alexander Morton, the plaintiff. The action was tried in January, 1860, before Mr. Justice Pierrepoht, and a jury. It is brought by the plaintiff as assignee of the lessor’s interest in a lease, against the defendant as assignee of the lessee’s interest in it, to recover a part of the quarter’s rent falling due November 1st, 1857.

This was a case submitted to the Court at General Term for its judgment, upon an agreed statement of facts made pursuant to section 372 of the Code of Procedure. The plaintiff, as assignee of one Ossian L. Hatch, claimed to recover a quarter’s rent of premises demised by Hatch to one James Sharp. Sharp, on the 28th of January, 1860, being insolvent, assigned all his property to the defendant, in trust for the benefit of the creditors of Sharp.

<p>1. Money exacted by and paid to public officers, under a claim of right for their services as such, if they be not entitled thereto, is illegally exacted and may be recovered back.</p> <p>2. It may be recovered back, though paid after the services are rendered ; and under a threat, if not paid, of doing an injury to those of -whom it is exacted, which they had not necessarily the power to effect.</p> <p>3. Persons appointed by the comptroller of the state to perform the duties required by section 10 of the act of 1853, (chap. 466, p. 908,) are public officers, within this rule.</p> <p>4. If such persons are entitled to more compensation than can be paid by the sums which section 27 of that statute requires every association or company therein mentioned to pay towards defraying the expenses of executing said act, their claim is against the state, and not against the association or company.</p>

<p>1. In an action to recover damages for inducing the plaintiffs, by false and fraudulent representations, to sell and deliver goods to a third person, it is not essential to a right of action that the misrepresentations were the sole inducement to the sale.</p> <p>2. It is enough that the plaintiffs would not have parted with their goods, if the false representations had not been made.</p> <p>3. Where the defendants, in addition to making the alleged misrepresentations, offered and agreed to indorse the purchaser’s note to be given for the goods, it is error to refuse to charge that, if the misrepresentations in any degree contributed to induce the plaintiffs to sell the goods, they are entitled to recover, when the evidence warrants-a finding that the plaintiffs were so induced.</p> <p>4. Whether, in such a case, it is competent for a plaintiff to testify, as evidence in chief, that he sold and delivered the goods, relying on the truth of the alleged misrepresentations, quaere.</p>

Appeal by the plaintiffs from an order denying a motion for a new trial. This action was brought by the Parker Mills, a Massachusetts corporation, against Edward H. Jacot, a judgment and execution creditor of one Edgar Sprague, and also against James 0. Willett, Sheriff of the city and county of Few York, to recover the possession of a certain schooner called the Ann S. Salter, and damages for the detention. .

Appeal by the plaintiff from a judgment against him, entered July 14th, 1860, on the report of Philo T. Buggies, Esq., as referee. Held: as conclusions of law, that the deed from the sheriff to Mr. Lord vested in the latter an estate in fee simple, and that the deeds to John Ward, Jr., and to Bobert H. Bleakie, successively, a like estate; that no cause was proved against either defendant, and that the complaint should be dismissed.

Appeal by the defendant, John Kerr, from a judgment in favor of James H. Heroy, Joseph Struthers and David J. Marriner, the plaintiffs, composing the firm of Heroy, Struthers & Co. This an action for damages for the unlawful conversion, by the defendant, of certain personal property claimed by the plaintiffs.

<p>1. Where a referee’s report does not, in terms, specify a finding upon each of the material allegations in the complaint, but finds that there is “due to the plaintiff by the defendants,” a specified sum. for which judgment is ordered, the report, on an appeal from the judgment, will not be disturbed, where there is nothing in the evidence or case repugnant to the inference that the referee did find all the allegations of fact essential to a recovery by the plaintiff, in his favor.</p> <p>2. Where, on an allegation that the defendants owned a vessel, and employed and hired the plaintiff to go on board of her as master on a designated voyage, and that under such employment, he served as master on such voyage, the report states that the defendants held the legal title, but as security only, and had control of the voyage, and that the plaintiff went as master with their assent, and obeyed their orders, and was paid by them for his services, in part, as such master, and that there is “ due to the said plaintiff by the defendants” the sum of $1,262.75, for which he “is entitled to recover judgment herein against said defendants,” it will be intended on an appeal from the judgment, that the Referee found that the plaintiff was hired by the defendants, although the report does mot in terms so state, if upon the evidence contained in the case, a finding to that effect would not be disturbed as unwarranted.</p>

<p>1. Where gold dust is received at San Francisco, by a common carrier from, that place to the City of New York, to be carried and delivered by Mm at the latter place, and on receiving it he delivers to the shipper a bill of lading which states that it is received on the Antelope at San Francisco, and that “ on arrival at Panama, the same is to be forwarded across the Isthmus and to be reshipped by one of the United States Mail Steamship Company’s ships to New York, * * and to be delivered in like good order and condition at the port of New York, dangers of the seas, (land carriage and river navigation, thieves and robbers,) excepted,” and the gold dust is not delivered; the carrier is liable unless he shows that he was prevented from delivering it by some of these causes.</p> <p>2. Under such a bill of lading, the common carrier does not cease to be such as to the transportation across the Isthmus, and become a bailee for hire, chargeable only on proof, by the shipper, that the loss arose from Ms negligence or that of his servants.</p> <p>3. In such a case (no such defense being stated in the pleadings,) the defendant cannot prove that “it was the custom of shippers of treasure to insure it against risks upon the Isthmus; nor:</p> <p>4. That there was a custom, by which the carrier of gold refused to assume any risk of transportation on the Isthmus, or that the bills of lading then in use, excepted all risks of land and river carriage on the Isthmus, or that the plaintiff had previously shipped treasure by this line, and knew of this custom when he made the shipment in question.</p> <p>5. Such evidence is inadmissible for the purpose of giving thereby a construction to the bill of lading in conflict with the natural and obvious meaning of its language, or its clear legal import.</p>

Exception by the plaintiffs, August Rolker, August Mollman, Alphonse Eerier and Felix Cheteaux (comprising the firm of “ Utilizer, MtiTlman & Co.,”) to a decision in favor of the defendant, The Great Western Insurance Company, dismissing the complaint.

Appeal by the defendants, from a judgment entered on the report of Dan Marvin, Esq., as Beferee.

Appeal by the defendants, Peter I. Kevins, Jacob A. Kevins and Peter I. Kevins, Jr., from a judgment in favor of the plaintiffs, Aaron Hayden, Bion Bradbury and Seward B. Hume, as assignees of Wheeler & Co. The action is brought to recover the amount insured on the“Metoka,” defendants having received it; and was tried in April, 1860, before Judge Bobebtsob, without a Jury.

Appeal by the plaintiffs, Alexander Duncan, Watts Sherman, William Butler Duncan, Charles H. Dabney and David Duncan, (comprising the firm of Duncan, Sherman, &. Go.,) from a judgment &c., in favor of the defendants, Jacob Gosche and Henry D. Palmer. The suit is upon two notes for $1,000 each, at four and six months respectively, dated 7th June, 1859, made by Gosche and indorsed by Palmer.

Exceptions taken by defendants at the trial, and there ordered to be first heard at General Term. The action is on a policy of insurance issued by the defendants to the plaintiff. 1.

<p>1. The rules as to variances between the complaint and the facts proved which may be disregarded under the Code—stated.</p> <p>2. In an action on contract for the recovery of money, in which the complaint charged the defendant as agent and supercargo for the plaintiff, and with not accounting and paying over; the answer alleged, that the transaction was a joint adventure, and the referee so found; Held, that it thus appearing, the defendant was indebted substantially as alleged in the complaint, the action should not be dismissed for this variance.</p> <p>3. It makes no difference in such a case that the defendant had been arrested in the action, on the ground of the alleged agency.</p>

The action was brought upon a policy of insurance on freight, and was tried before Mr. Justice White and a Jury on the 11th of January, 1861. The defendants, by their policy dated the 17th of December, 1857, insured the plaintiff against loss or damage to the amount of $15,000, on the freight of the ship Flying Dutchman, (the whole freight being valued at $25,000,) at a,nd from San Francisco to Hew York.

This was an action to recover the price which twenty-seven cases of damaged hardware, which had been insured by the defendants, on a voyage from Bremen to Hew York, were sold for, at auction in the Oity of Hew York. This cause had been twice before tried in this Court.

Appeal by defendant Schuberth, from a judgment, and from an order denying a motion for a new trial. The action was brought in October, 1856, by Marx Bothsohild, Abraham Bernheimer and Benjamin F. Saloman, plaintiffs, against Julius Schuberth & A. Yan Berkie, as defendants. It is on a note for $200, dated September 1st, made by Yan Berkie, payable two months after its date to the order of Messrs. J. Schuberth & Oo.

Justice Hoeemas, and a Jury on the 8th day of May, 1860. The defendants, having become very largely indebted to the plaintiffs for goods sold, the debt falling due in the fall of 1857, procured from the plaintiffs, as the plaintiffs alleged, an extension of the time of payment, upon representations that their embarrassments were only temporary, and that by receiving an extension of credit, they would be able to make payment in full, or if not, that the plaintiffs should…

TMs was an action brought by the plaintiff, a lad under fourteen .years of age suing by Ms guardian, to recover from the defendant damages for injuries to his person. It appeared from the testimony, that he was riding upon the front platform of a city railroad car, belonging to- the defendant, and that he fell or was pushed by the driver from the platform, and the car ran over Ms feet.

<p>Appeal from a judgment entered on- the report of Livingston K. Miller, Esq., Referee, in favor of the plaintiff.</p> <p>This was an action brought to recover a balance alleged to be due, as part of the last installment, on a contract for filling in land under water, on the shore of Staten Island to a level of four feet above ordinary high water-mark.</p> <p>The contract, under which the work was done, contained a provision, “that it should be submitted to one, Minthorne Tompkins, to decide when said several portions of said work were respectively done, so as to entitle said contractor to receive, and to oblige said defendant to pay the respective installments; and that the decision of said Tompkins, when made on the said matter, should be binding on both parties.”</p> <p>It was proved, on the trial, and the Referee found accordingly, that on or about the 15th of June, 1859, Tompkins, at the request of defendant, met one Amos on the premises, to inspect the work and determine whether the same was completed; that Amos, on behalf of defendant, pointed out what he considered to be the deficiencies in said filling, which plaintiff was then and there directed by Tompkins to supply. That thereafter plaintiff did additional work and filling in, and on the 25th day of June, 1859, Tompkins again examined said premises, alone, and thereupon gave a certificate, addressed to the defendant, and in the following terms:</p> <p>“I have examined the filling in done by Mr. Collins and am satisfied that he has fully performed the contract, that is, he has filled up within the bulkhead to the height of four feet above ordinary high water; I went down last Saturday with Amos, and having then measured it with him, we informed Mr. Collins as to what was necessary to be done; I have this morning inspected it, and find that he has performed satisfactorily the work which we required him to do. I believe there is still remaining due to him the sum of eight hundred and thirty-three 33-100 dollars, to be paid by you.”</p> <p>The Referee’s report also stated that evidence was offered and received under objection, to show that the dock was not sufficiently filled in, and the nature and extent of the deficiencies; also, to show that the defendant had not notice from Tompkins of his final examination of said work. The defendant insisted on the trial that the evidence was admissible, and that the want of notice rendered the award void. He found, as a conclusion of fact, that the defendant had notice of Tompkins’ first inspection in company with Amos, but no notice of any subsequent inspection; and also, that on the 6th day of July, 1859, there was a deficiency, in the filling, of 3,040 feet from the point required; and that the last installment of said contract price had never been paid, viz., $833.33.</p> <p>From the foregoing facts, he found, as a conclusion of law, that the matters submitted to said Tompkins, were passed upon by him, after examination and inspection, and that his finding and decision thereon was conclusive and binding upon the defendant, and that the plaintiff was, therefore, entitled to judgment against the defendant, for the amount therein specified, with interest and costs.</p> <p>I. The provision in the contract for the submission to Mr. Tompkins, and his decision upon the question of fulfillment, so as to entitle the plaintiff to his pay, is a submission to arbitration. (McMahon v. N. Y. & Erie R. R. Co., 20 N. Y. R., 464 ; The Mayor, &c., v. Butler, 1 Barb., 325 ; Van Cortlandt v. Underhill, 17 Johns., 405 ; Peters v. Newkirk, 6 Cowen, 103 ; Caldwell on Arbitrations, 119.)</p> <p>II. It follows, from embodying this clause in the agreement, that without a submission and decision thereon, the plaintiff cannot recover. He must recover on the award or not at all.</p> <p>IH. These points conceded, the only questions are, first, have the parties legally submitted it to Mr. Tompkins to decide; and second, has Mr. Tompkins made a legal decision or award.</p> <p>First. It is manifest from the whole evidence, that the parties have never had a legal or formal hearing before Mr. Tompkins. There has been no time or place fixed by the arbitrator for a heáring. Ho notice of the time, place or hearing was given the parties. Ho judicial investigation—no formal hearing—no taking of testimony has been had in the case. This requirement is not satisfied by an informal letter or certificate, obtained by one party without notice to the other, upon a casual looking at the work, without taking any testimony or making any formal survey or examination. The contract does not say that the “ certificate ” of Tompkins shall be binding, but his “ decision ” upon a “ submission.” The arbitrator was not sworn.</p> <p>These requirements belonged to common law as well as statutory submissions. But this submission, being in writing, sections 3-7 of 3 Rev. Stat., 5th ed., p. 356, apply. (Cope v. Gilbert, 4 Den., 348 ; Peters v. Newkirk, 6 Cow., 106 ; Bloomer v. Sherman, 5 Paige, 575.)</p> <p>Second. Has there been a legal award ? The paper purporting to be a decision has none of the ordinary formalities of an award. The arbitrator, clearly was ignorant of the necessity of notice, &c. He supposed it was only necessary that he should be satisfied, and express that satisfaction. But if his letter was intended to be a formal award, yet if he omitted to give notice of the time and place of hearing, and to afford an opportunity to be heard, it is a nullity. (Elmendorf v. Harris, 23 Wend., 628 ; Peters v. Newkirk, 6 Cow., 106 ; Jordan v. Hyatt, 3 Barb., 283.)</p> <p>IV. The plaintiff endeavors to get rid of the force of these points, by urging that Mr. Amos met Mr. Tompkins to look at the dock on the Saturday previous to the date of the certificate, and that he represented the defendant.</p> <p>How, the only evidence as to the authority of Mr. Amos • there is Mr. Tompkins’ testimony that he “ understood Mr. Vanderbilt wished Mr. Amos to look at the work with him.” This was when Tompkins and Collins both said the work was done. It turned out on inspection that it was not done. Therefore Amos had performed all that was required of Mm at that time, by pronouncing the work incomplete. Collins then worked five days longer. At the end of that time TompMns went alone, and gave neither Vanderbilt nor Amos any notice. They clearly had a right to be heard on the question, whether Collins had then completed the dock.</p> <p>But there is no evidence in this case that Mr. Vanderbilt ever authorized Amos to decide with TompMns for him. The fair construction of Ms request that Amos might look at it, is that he wished to have him report afterwards. (McKinney v. Page, 32 Maine, 513, [2 Red. ;] Hook v. Philbrick, 3 Foster, [N. H.,] 288 ; Lincoln v. Taunton Manuf. Co., 8 Cush., 415.)</p> <p>V. It being manifest that there has been no legal sub- . mission or award, the plaintiff must be nonsmted. He should have offered to submit the question as to the completion of the contract to the arbitrator, if he wished to conclude the defendant. If the defendant complied, the award would have concluded him. If he refused, the plaintiff might have proceeded ex parte, after notice, or might sue on the agreement to submit. TMs is now Ms only remedy. (McMahon v. N. Y. and Erie R. R. Co., 20 N. Y. R., 464.) An arbitrator cannot proceed a single step without notice to the parties.</p> <p>I. If there were not a sufficient passing upon the matters submitted to TompMns, such insufficiency must arise from the omission of some necessary requisites; and it was urged on the trial that this was a case of common law arbitration, and that some of the requirements had not been complied with so as to make Tompkins’ certificate a valid award. The answer to this is twofold.</p> <p>1. This is not a case of arbitration, and the rules applicable thereto do not apply.</p> <p>2. If it be subject to the rules of proceedings on common law arbitrations, the evidence shows that such rules were sufficiently complied with.</p> <p>II. This is not a case of common law arbitration.</p> <p>Submission to arbitration is defined as “That act by which parties refer any matter in dispute between them to the decision of a third person.” (See Kyd on Awards, p. 6.)</p> <p>There was no “matter in dispute” in this case. The only matter on which any question could arise was the place of “ordinary high water-mark,” which was necessarily a matter of opinion; and the parties to the contract, to prevent dispute from a clashing of opinions, agreed to substitute the opinion of Tompkins for their own, and be bound by it. Tompkins has expressed that opinion, and they are so bound, Ho notice to, or hearing of, the parties was needed, although both were in fact given.</p> <p>The existence and legality of such provisions in contracts is recognized by the Courts as something different and distinct from arbitrations. (See United States v. Robertson, 9 Peters U. S. R., 319. McMahon v. N. Y. and E. R. R. Co., 20 N. Y. R., 463.)</p> <p>III. Ho notice to the defendant of the examination by Tompkins was necessary in this case. (M. McMahon v. N. Y. and E. R. R. Co., 466.)</p> <p>The Court says that the question whether in cases like that then before the Court, “ the contractor or party doing the work has a right to be present when the measurements are made,” is a new one, and “open to the application of such principles as are best calculated to secure the rights of the parties.”</p> <p>The reasoning of that case does not make notice to the defendant here necessary.</p> <p>IV. If this case, however, be considered as so similar to a common law arbitration; nevertheless sufficient notice was given to the defendant, of the examination made June 15th, 1859, and Amos then attended as the defendant’s representative before Tompkins on the premises, and made certain suggestions on behalf of the defendant which were complied with.</p> <p>1. All the matters on which a hearing could have been necessary, were then passed upon in presence of Amos, defendant’s agent, and Avith his sanction the ordinary high water-mark, and the level to which the filling should be raised was fixed — and nothing remained to be done; and it was agreed to by Amos, the defendant’s agent, that Tompkins should come alone and pass upon the work.</p> <p>2. If any notice of the subsequent examination of the work by Tompkins would otherAvise have been necessary, it Avas expressly waived by Amos, the defendant’s agent, by the agreement that Tompkins should make his subsequent examination alone.</p> <p>3. At any rate, it was for Tompkins to decide what was reasonable notice. (See Elmendorf v. Harris, 23 Wendell, 628.)</p> <p>V. Even if this be regarded as a common law arbitration, failure by the arbitrator to be sworn does not affect his jurisdiction, and is waived if not. insisted on at the time. (Howard v. Sexton, 4 Comst., 158 ; Bergh v. Pfeiffer, Lalor’s Supp., 110.)</p> <p>No witnesses having been called by either party, of course none could be sworn.</p> <p>VI. The finding and decision of Tompkins is conclusive and binding upon defendant.</p> <p>VII. All the evidence introduced to contradict that finding was inadmissible, and is not to be considered in this case.</p> <p>Further, it does not contradict Tompkins’ finding, for it is evidence of the condition of the filling at another time, July 6th and not July 25th, and it does not appear that the testimony of Boot, (the surveyor,) is based on the same high water-line agreed upon between Tompkins and Amos.</p>

The questions of law arising on the trial of this case were ordered to be heard in the first instance at General Term. This action was by Martin Brown and Caleb K. Colby against George W. Platt and Hathan 0. Platt. It was tried on the 12th of March, 1860, before Chief Justice Boswoeth and a Jury. The plaintiffs sued the defendants for converting certain chattels of the plaintiffs, valued at $1,934.31.

Oase, heard upon exceptions, directed by the Judge at the Trial Term, to be heard in the first instance at the General Term, and the judgment in the meantime suspended. In 1857, Messrs. Stanton & Thompson were agents of the vessel Knickerbocker, and authorized by several part owners to keep their interests in the vessel insured at a valuation of $50,000. Mr. Stanton, of the firm of Stanton & Thompson, was a part owner in the vessel to the amount of J-6.

<p>1. Whether the firemen of the city of New York, being incorporated, and charged with the duty, and furnished with, and with the control of, the necessary means to extinguish fires, are liable to the owner of property burned, for loss arising from their negligence in the use of means to put f out the fire, quaere?</p> <p>2. In an action against a Railroad Company, to recover damages for so neglii gently running a train of its cars, that the train ran over and cut hose lying across the track of the road and attached to fire engines in use at the time by firemen, who were endeavoring to extinguish the fire of buildings burning near the track of the road, whereby, as was alleged, the firemen were unable to subdue the fire they otherwise would have extinguished, and whereby the fire was communicated to other buildings which were burned; it is error to instruct the Jury that, if there was negligence of the firemen in not using proper means to warn the approaching train of the fact of the fire and its locality, and that the hose was across the track, and that if such negligence concurred with that of the Railroad Company in producing the injury, the negligence of the firemen is to be deemed the plaintiffs negligence, and that such fact is a bar to bis recovery.</p> <p>3. Whether a railroad company, who have, in fact, provided approved brakes which had been found adequate to stop the train sufficiently quick to avoid such casualties as experience had shown might be anticipated, and which were faithfully used by the servants of the Company, but without avail, should be held liable, merely because, with the very best brakes in use, the train might have been slopped in time, quaere ?</p> <p>4. In such a case, it is relevant to ask of a competent witness, within what distance could such a train, as that in question, be stopped with ordinary brakes, on an ascending grade, running at such a rate that a man could run faster than the train was going.</p> <p>5. A witness who testifies that he is somewhat familiar with railroad brakes and with the operation of them, and has used them on a railroad and knows which are the best brakes, is a competent witness to testify as to the distance within which any given train can be stopped, with a designated class of brakes and a given number of brakemen.</p>

<p>1. A conveyance by metes and bounds, which in terms goes “ to the side ” of a road, thence “ along the side of the road,” not only conveys no interest in the bed of the road, but on the contrary excludes the road.</p> <p>2. T. died seised of a tract of fourteen acres of land in the city of New York, which was described in the deed to him and in previous conveyances as bounded ***** “northwesterly by the King’s Bridge Road.” After his death, a suit for partition was brought between his heirs, the bill in which described the premises in the same manner as in these deeds, and a decree was made for a sale. The sale was made in parcels, and on the map of lots or parcels, in reference to which the parcels were sold, as well as in the report of sale, and in the deed executed pursuant to it, one parcel upon the northwesterly side of the tract in question, and contiguous to the King’s Bridge Road, was'described by a boundary which was stated as running “to the southeasterly side” of that road, and “ thence along the said southeasterly sidewhile upon another side of this parcel, the'"boundary was described as running “ along the centre line of 54th street,” which was a new street not then opened. The description in the report of sale and the deed, also declared, that said parcel contained “ so much of 54th street as lies within the said boundaries.” Held, that such deed in partition granted no interest in the bed of the King’s Bridge Road, but the title to the same remained in the heirs of Y.</p> <p>3. As between the grantor and grantee, the presumption as to ownership of land within the limits of a highway, is the same in the city and county of New York as in other parts of the State, at least in respect to a highway lying in a rural or farming section of the county. One who owns both sides of the highway, is to be presumed entitled to the fee of the road.</p> <p>4. Upon the discontinuance of an old road, in the city and county of New York, the fee is not in the corporation, but presumptively in the owners of the adjoining land.</p> <p>5. A party excepting must, at his peril, place enough in his exceptions to show that the Court erred to his prejudice. The legal presumption is in' favor of the rectitude of the proceeding; and all decisions made, will be presumed correct, until the contrary appears. When the error relied on consists in the exclusion of evidence offered, the exceptions must show affirmatively, that it was relevant at the time when offered and excluded. The Court will not interfere on account of its rejection, unless, in connection with the evidence previously given, or that and evidence offered to be given, it can be seen to be material.</p> <p>6. In an action brought by husband and wife to recover possession of land, the plaintiffs claimed as owners in right of the wife. On the trial, the defendants offered in evidence an appointment made by the husband and wife, which recited an ante-nuptial agreement between them and S., to the effect, that notwithstanding the intended marriage, the real and personal property of the wife should remain her separate estate; reserving power to the husband and wife to discharge the said S., or substitute other persons in his place, which appointment thereupon declared said S. discharged, and substituted A. in his place. The defendants also offered, with this appointment, a written acceptance signed by A., in which he described himself as trustee for the property and effects of the wife; but these instruments did not otherwise describe either of these persons as trustees, nor recite any conveyance to or title in them; and the defendants offered no other evidence on these points. líéld, that this evidence was properly excluded. In order to raise the objection that the plaintiffs had not capacity to sue, it must be taken in the answer, and could not be raised for the first time on the trial. This evidence, moreover, did not show that the legal • title was not in the plaintiffs.</p> <p>7. Whether the action is brought in the name of the trustee, or the cestui que trust, is a matter not affecting the substantial rights of the defendant.</p>

Appeal by both parties, from a judgment entered upon findings of fact and conclusions of law of Mr. Justice Hoefman, on a trial without a Jury, in May, 1860.

<p>1. Under the provision of the Laws of 1833, ch. 279, (2 Rev. Stat., 3d ed., 196,) which requires chattel mortgages to be refiled annually, “ together with a statement exhibiting the interest of the mortgagee in the property thereby claimed by him by virtue thereof,” a statement is sufficient which annexes and refers to another document filed with it, if the two papers( read together in connection with the original mortgage, disclose the interest of the mortgagee intelligibly.</p> <p>2. On refiling a chattel mortgage, which, by its terms, was given to secure the payment of notes, and also to secure the mortgagee against outstanding liabilities, the statement annexed was that the amount of the unpaid notes constituted the amount of the mortgagee's interest, and made no reference to any claim that the mortgage was held as a security against the outstanding liabilities. Such outstanding liabilities then, in fact, existed, and a copy of an agreement between the parties, which was annexed and filed with the statement, and referred to in it, stated that the mortgage was given to secure such outstanding liabilities. But this agreement was made some months before the making and filing of the statement; Held, that as against subsequent purchasers, the renewal of the mortgage was good as to the amount claimed as due upon the notes; but it was not good as to any of such outstanding liabilities.</p> <p>3. An understatement of the amount due does not affect the validity of the mortgage as to the amount which is stated; but the mortgagee cannot, as against the parties designed to be protected by the statute, afterwards claim that any greater sum is secured by the mortgage than is mentioned, in terms or by intelligible reference, in his statement.</p> <p>4. Notice of the facts, to render such a defective statement sufficient as against subsequent purchasers, must be actual notice, not merely of the mortgage, but of the actual amount for which the mortgage was held as security when they purchased.</p> <p>5. A chattel mortgage was given to secure, among other things, liabilities of the mortgagor assumed by the mortgagee, and the schedule annexed specified money paid for taxes to the amount of $300, and the complaint in an action to foreclose the mortgage claimed only the payment so specified; but on the trial proof was received, without objection, of the payment of another tax, and its recovery was allowed; Held, that this was error, for as against subsequent purchasers not having any notice of the mistake by which this other tax was omitted, only the amount specified in the schedule could be recovered.</p> <p>6. An exception to the decision of a Judge, before whom a cause is tried without a Jury, fails, if the conclusions of law stated and the judgment settled upon the decision do not pursue the decision in respect to the point excepted to, but are in conformity with the exceptant’s view.</p> <p>7. The purchasers of personal property upon which there is a valid chattel mortgage, who consume or sell a part of the property, so that what remains does not produce sufficient to satisfy the mortgage debt, may be held personally liable for the deficiency.</p> <p>8. This is so even though they took the property in hostility to the mortgage, and denying that it was an existing lien.</p> <p>9. A stockholder of a corporation holding a claim against it for which the stockholders are individually liable, cannot recover upon it in an action against one of the stockholders individually. He can only set up the claim in a proper action against the stockholders generally for a contribution.</p> <p>10. A demand not set up as a counter-claim in the answer, cannot be recovered as such.</p> <p>11. In an action by a mortgagee of chattels to foreclose the mortgage and to obtain a personal .judgment for the debt, subsequent purchasers of the mortgaged property cannot avail themselves of a demand in favor of the mortgagor, against the mortgagee, as a counterclaim.</p>

<p>Appeal from a judgment entered on a verdict for the plaintiff, and also from an order denying the defendants’ motion for a new trial.</p> <p>The action was brought by Charles F. Weber against Daniel 0. Kingsland, Ambrose C. Kingsland, Cornelius K. Sutton, James C-. Gregory, Charles H. Salter, Daniel McIntyre, Peter McMartin, John B. James and Luke Harmony.</p> <p>The defendants were owners of the American ship Typhoon, and Graseman & Co., ship-brokers, of London, effected a charter for her to Burchard & Barclay, merchants, of London,, for a voyage from London to Calcutta and back to London, for the gross sum of £12,000 charter money for the round voyage. The plaintiff and Graseman composed the firm of Graseman & Co.</p> <p>The defendants agreed with Graseman & Co., in consideration of their effecting the charter, to pay them a commission of five per cent on the gross amount of freight named in the charter party, and further, upon the same consideration, that the ship, on her return to Europe, should be “ consigned to and reported inwards at the Custom House by them.” The defendants paid the five per cent commission upon the effecting of the charter, but on the return of the ship to London they refused to consig’n the ship to Gras email & Co., and took her management into their own hands. The action was brought for the breach of the agreement to consign.</p> <p>The cause was tried before Mr. Justice Slossoít and a Jury, in April, 1859.</p> <p>The contents of the pleadings, and some other facts, appear in the opinion of the Court.</p> <p>A. C. Wilkins,- a clerk of Graseman & Co., examined under a commission issued for the purpose, stated, in answer to an -interrogatory as to why the vessel was not consigned to Graseman & Co., and whether any demand was made that she should be consigned, ***** that a few hours after the arrival of the ship, he saw Samuel Goodhue, her then master, at the counting house of Graseman & Co.; [that the said Samuel Goodhue then told witness that he had received a telegraphic message that nothing was to be done as to reporting the ship, or doing her business, until the arrival of the defendant, Charles H. Salter, from Liverpool; that he requested said Samuel Goodhue to communicate the message to the plaintiff; that he heard the plaintiff inform the said Samuel Good-hue that the firm was quite ready to do the ship’s business, and requested the said Samuel Goodhue to allow the ship to be reported at the Custom House, and leave other matters. to be settled on the arrival of the defendant, Charles H. Salter; that the said Samuel Goodhue said he could not allow the ship to be reported, nor anything to be done respecting her, until the arrival of the defendant, Charles H. Salter.]</p> <p>To that part of the foregoing answer which is in brackets, the defendants’ Counsel objected. The Court overruled the objection, and the defendants’ Counsel excepted.</p> <p>The Counsel for the plaintiffs put in evidence a letter from Mr. Salter to the defendants, Kingsland & Co., dated November 13, 1852, in which, after advising them that the vessel was then ready to sail, &e., and referring to some unsettled business, he said—“Graseman has full power to act for me and remit the balance, which will be about £150, to Messrs. Grimshaw. We have been offered £310s. per ton, and given to understand that we could get £3 12s. 6d. if signed immediately for a return voyage from Shanghae to London, after going to New York and San Francisco. I have not felt at liberty to take it. Graseman has sent me a signed charter-party. Should you accept it, 2£ per cent is the customary commission on such charters ; instead of 50 tons please insert 3,000 tons demurrage, payable by freighters’ agents in Shanghae or Canton; commissions to be paid when freight is earned. Freight payable in cash on delivery, deducting interest.”</p> <p>The Counsel for the defendants objected to the reading any portion of this letter which did not refer to usage. The Court admitted the whole letter; whereupon the counsel for the defendants excepted.</p> <p>The defendant, D. A. Kingsland, on his examination testified that Graseman & Co. were the consignees under the two previous charters ; they received 2¿ per cent commissions ; no special instructions were given to Captain Salter; the general instructions were, that he should do with the ship as he would do if she was his own.</p> <p>Among the interrogatories administered to Captain Salter, in a commission to take his testimony, was the following : “At the time of negotiating the last charter party, did you suppose that you were incurring an obligation to pay any consignment commission whatever ? ”</p> <p>On the trial, this question, and the witness’s answer, were excluded on the objection of the plaintiff’s Counsel.</p> <p>In answer to another interrogatory, which called on him to state what, if anything, occurred between him and Graseman & Co., in reference to the terms of the charter party, before the same was made, the witness stated the negotiations between himself and Graseman & Co., hi the course of wMch he said, .that after the latter had obtained a charter party, to be signed by the charterer at £12,000, they kept it in their desk, without informing him of it, and offered him various lower sums, only producing the charter party after he had declined to accept less.</p> <p>The plaintiff’s Counsel objected to the reading of this statement, and the Court excluded it, to which the defendants’ Counsel excepted.</p> <p>Eobert G. Barclay, one of the charterers, whose deposition was also taken, stated in one of his answers that he did not recollect the sum that he first offered for the vessel, but it was less than £12,000, and he finally agreed to give £12,000; [that he was induced to give more than he at first offered, on account of Graseman & Co. agreeing to guarantee witness’s firm against loss, to the extent of their commission of 5 per cent; and] that without such agreement he would not have paid so much for the vessel.</p> <p>The Counsel for the defendants objected to the reading of the statement contained in brackets. The objection was overruled, and the defendants’ Counsel excepted.</p> <p>I. The contract having been reduced to writing, no parol evidence, and no evidence of conversations or agreements prior to the signing of the charter party, should have been admitted.</p> <p>II. There is no allegation in the complaint, nor was there a pretense on the trial, that any part of the agreement was omitted from the charter party by mistake, fraud •or otherwise, which alone would entitle the plaintiff to :give.the evidence.</p> <p>III. The plaintiff having declared upon and proved a •contract to pay 2-J per cent consignment commission, it was error to admit evidence as to the custom of ship-brokers in London to charge such commission.</p> <p>The plaintiff did not, by his complaint, seek to recover on the strength of a custom; nor did he ask on the trial to amend his complaint so as to make such evidence admissible.</p> <p>The Court should have charged as requested, that inasmuch as the plaintiff claimed to recover upon an express agreement to pay the consignment commission, the Jury should be instructed to disregard the evidence as to custom.</p> <p>The Court had already submitted the question, whether there was a contract to pay the 2J per cent consignment commission.</p> <p>The Jury were left, therefore, to find for the plaintiff, upon the contract, if they, believed one was made, or upon the strength of custom, if they believed that no agreement had been entered into.</p> <p>IV. The belief of the witness Graseman, as to the reason why the ship was not consigned to them, should not have been given as evidence in the cause. It was calculated to prejudice the minds of the Jury.</p> <p>V. There was no evidence of usage to charge the commissions claimed in this case at a higher rate than per cent commissions on the inward freight.</p> <p>The plaintiff sought to recover 2£ per cent commissions on the gross amount of chartered freight, which included both the outward and inward voyage.</p> <p>There was a total failure of proof of a custom to charge the commission on the chartered freight, and the Jury should have been so instructed.</p> <p>VI. Even if the plaintiff were entitled to recover, he could recover no more than a commission on the balance due of the chartered money, on the return of the vessel from the voyage, which was £6,500, and the Court erred in refusing so to charge.</p> <p>VII. The Court should have instructed the Jury that the plaintiff could not recover, on the ground that they lost a good will, or lost credit in the market, by reason of the consignment not being made to them.</p> <p>VIII. It was error to admit evidence of the prior charter-parties effected by Graseman & Co. for the defendants.</p> <p>IX. The plaintiff should not have been permitted to give evidence as to the sum upon which Graseman & Co. would have been entitled to charge a consignment commission.</p> <p>That was a matter of law, to be determined by the facts proved.</p> <p>I. The plaintiff was entitled to prove the contract between the defendants and Graseman & Co., by either written or parol evidence.</p> <p>Ho rule of law requires such a contract to be in writing; and the objections to parol evidence can only rest upon the claim that such contract was, and was proved to be in writing.</p> <p>The charter party is clearly not a contract between Graseman & Co. and the defendants; and its existence in writing is no bar to the proof of the contract between Graseman & Co. and the defendants.</p> <p>The insertion in the charter party of such terms of the latter contract as it behooved the charterers to know and assent to, as a part of their contract, does not limit the freedom of proof open to Graseman & Co., to show their contract.</p> <p>II. There was no controversy in regard to the agreement to consign the Typhoon to Graseman & Co. on her return voyage; whether there was an express contract to pay a commission upon such consignment, and if so, at what rate per cent, and upon what sum it was to be computed, were matters disputed upon conflicting testimony. The evidence as to what rights, in respect of commissions, followed from the mere agreement to consign, was competent and legitimate.</p> <p>III. The motion for a nonsuit when plaintiff rested, was properly denied.</p> <p>There was sufficient evidence in respect to express agreement between the parties, and in respect to implied agreement from general usage, from usage in the special trade, and from previous dealings between these parties, to have not only justified but required a verdict for the plaintiff on his evidence.</p> <p>IV. The exceptions arising upon the Judge’s charge, and to his refusal to charge, are not well taken.</p>

Justice Moncrief, before whom the cause was tried without a Jury. The main facts from which the controversy arises are as follows: The defendants, a Marine Insurance Company in New York, employed McLimont as their agent in Quebec, under a letter of authority dated December 14th, 1854. The agent, McLimont, did not issue policies to parties; they were always issued by the Company in New York upon his returns of risks agreed to by him.

Appear from a judgment entered on a decision of Judge Woodrtjee, before whom the action was tried at a Special Term of the Oourt, in June, 1858. This was an action brought by George Deshon against The Merchants’ Bank in the City of Hew York, and Mary A. C. Packwood, individually, and as executrix of Samuel Packwood, deceased, to recover from them a fund which the plaintiff claimed under an alleged assignment of the fund, made by the testator the day before his death.

This was a case submitted to the Court at General Term, for its judgment-, upon an agreed statement of facts made pursuant to section 372 of. the Code of Procedure. The question was, whether the executors of John Eandell, by virtue of the power contained in his will, can convey and give a good and valid conveyance to James Lynch, as purchaser, at a sale by auction, made by said executors, of five lots of land on 113th street in the Oity of Hew York.

This action was brought- to recover damages laid at fifteen hundred dollars, for non-performance of a contract by the defendant to make and put up the stone steps of four houses built by the plaintiff, on Thirtieth street, in the City of Yew York.

Appeal by defendant to General Term, from judgment entered upon verdict for plaintiff, and from order of Special Term denying defendant’s motion for a new trial. The action was to recover possession of personal property. The complaint alleged that the plaintiff was lawfully possessed of the goods enumerated, at the time thereafter mentioned, being a stock of goods in the store of the plaintiff, Ko. 235 Eighth avenue, Kew York.

Justice Monoriee, on November 17, 1859. This action was brought by Asa F. Kimball and Andrew P, Van Tnyl against the Hamilton Fire Insurance Company, to recover the amount of a loss sustained by the plaintiffs, by fire, November 5, 1857, and alleged to be covered by a policy of insurance, issued by the defendants, dated May 13,1857.

The plaintiff in this case was the assignee of a term in certain premises in the Oity of Hew York, which were injured by the flow of water upon them from a neighboring lot, which had on it a building with pipes for furnishing Croton water, which leaked.

, as Referee. The relief demanded by the complaint in this action was that the defendant should deliver to the plaintiff two bonds and mortgages described therein, which had been assigned by the mortgagee to the defendant, and also should reassign the same if necessary.

<p>1. In an action to recover a strip of land lying along a boundary line, it is not enough for the plaintiff to show, that the defendant’s lot as possessed by him, is wider than the deeds under which he claims describe it to be, by the width of the disputed strip.</p> <p>2. In such an action,'it appeared that the defendant and those under whom he claimed had been in possession of the strip in question for at least twenty-one years, claiming title, and that after the wall of his building which stood thereon, had leaned over towards his own land, the plaintiff had recently put up a shed, the roof of which extended over to the leaning wall; and that the defendant in rebuilding upon the same foundation occupied by his old building, cut away the shed so as to raise his new wall perpendicularly.</p> <p>¿eld, That upon these facts, the plaintiff could not recover, although the defendant’s lot, without the strip in question, would have remained as wide as his deeds called for.</p> <p>3. In an action to recover possession of lands, the plaintiff must recover, if at all, on the strength of his own title, not merely on the weakness of the defendant’s.</p> <p>4, The words “more or less” in the boundary in a deed of land, are merely words of description to prevent the parties from being prejudiced by inaccuracies. They do not have the effect to extend the grantee’s boundary beyond the line fixed by a visible monument, or a map referred to in the deed.</p>

The questions of law arising on the trial of this cause were ordered to be heard in the first instance at the General Term. The action was brought by Frederick Huth, Daniel Meinertzhagen, John E. Griming, Charles F. Huth, Henry Hath and Louis Huth against the New York Mutual Insurance Company, upon a policy of marine insurance, issued by the defendants to Nye Brothers & Co., merchants, of Canton, in China, and by them indorsed or assigned to the plaintiffs.

This action was by Charles H. Piatt against Alfred F. Thorn and Isaac Uewton; and the complaint stated as a cause of action, that the defendants were indebted to the plaintiffs on an account for goods sold and delivered.

The action was brought by Henry Solms against the Butgers Eire Insurance Company of the City of Hew York, to recover upon a policy of fire insurance, issued by the defendants, and by their indorsement made payable in case of loss to Mary Entwistle, a mortgagee of the property described in the policy, who had, before this action, assigned the policy to the plaintiff.

This action was by Thomas Walker against Jacob Wilson. The complaint alleged that the defendant, on March 31, 1859, “with force and arms, unlawfully entered and broke into the office and premises of the plaintiff, # * * and then and there made a great noise and disturbance therein, and continued therein making such noise and disturbance for fifteen minutes or thereabouts, and then and there forcibly and violently assaulted, beat and wounded one Gavin Brown, a clerk for the…

The questions of law arising at the trial of this cause were directed to be heard in the first instance at General Term. The action was by Garrett S. Mott against The Union Bank in the city of New York, for alleged false imprisonment. The cause was tried before Mr. Justice Robertson and a Jury, on the 14th day of January, 1861. The facts are stated in the opinion of the Court. I. An order of arrest can only be issued before judgment.

This action was brought by Charles Wall, Samuel W. Truslow and William Wall, Jr., against the Home Insurance Company, upon a policy of insurance (for the sum of $4,000) for the term of one year commencing May 17,1858, issued by the defendants, upon the schooner Zenobia, on account of Charles T. Bruce, loss, if any, payable to the plaintiffs.

order made at Special Term denying a new trial. This action was brought by Charles King and George King against Edwin W. Phillips and Lewis S. Phillips, to recover the possession of a quantity of furs sold by the plaintiffs to Julius Sheldon, on the 8th day of July, 1859, and on the. 26th July, 1859, and which were transferred to the defendants by a general assignment made by Sheldon on the 16th day of August, 1859.

This action was originally brought by Smith Davis and Brian Eeily, for the purpose of redeeming real property from, a mortgage and decree of foreclosure, which property the complaint alleged belonged to the plaintiff, Smith Davis, aud an interest in which he had conveyed to Eeily. Pending the action, on petition of Oliver Davis, and proof of a conveyance from Eeily to him, Oliver Davis was substituted for Eeily as a co-plaintiff with Smith Davis.

This action was brought in 1850 for a divorce, which the plaintiff sought on the ground of defendant’s adultery. Held: that having regard to the expenses of the plaintiff, for counsel fees and otherwise, in prosecuting the action, not taxable as costs merely, (which amounted to about $7,000,) no part of any moneys paid or allowed by the defendant to the plaintiff since the commencement of the suit, and before the 24th day of July, 1856, should be…

The plaintiff sued as the receiver of the Island City Bank, to recover on a note made by B. Cohn and indorsed by Jacob Pecare to the bank. The contents of the pleadings are sufficiently stated in the opinion of the Court. The defendant Pecare, claimed a small sum as due from the bank to him as a depositor; but this counterclaim it is unnecessary to notice.

Coles, Esq., Referee, before whom the cause was tried. The plaintiff sued to recover for services rendered to defendants, and money paid for them in the construction of then road. The defense was payment. It appeared upon the trial, that the plaintiff, who had done work for the defendants under a special contract, had also done extra work prior to September, 1853, and it was for compensation for such work that he now sued.

This was an action brought by the plaintiffs against the Supervisors of the City and County of New York, and the Mayor, Aldermen and Commonalty of the City of New York, and James Nesbit, a constable of the city. The complaint alleged that the plaintiffs were an insurance Company incorporated by the Laws of New Jersey, and having their office and all their property and evidences of debt there.

Ah appeal from an order made by Mr. Justice Hottmau, upon a motion that the claim of the plaintiffs be paid out of the funds in the hands of L. E. Marsh, Beceiver. The facts, so far as material, are stated in the opinion of the Court, and in the head note above.

<p>It was decided in this case that in an action against brokers having purchased stock for plaintiff to be delivered at his option, to recover damages for sell- ■ ing it against his instructions, the complaint need not allege that the plaintiff made a demand, and tender of the price.</p> <p>It is the broker’s duty to keep the stock on hand.</p> <p>Alleging that defendants sold the stock imports that they delivered it</p>

<p>1. In an action against the acceptor of a draft, a variance in stating the initial of the first name of the drawer is immaterial, and will not sustain a general denial of the complaint.</p> <p>2. The acceptor cannot defend on the ground that the drawer’s signature was not his true name.</p> <p>3. Where this is the only defense, the answer, though verified and confined to a denial of the allegations of the complaint, may be struck out as sham.</p>

Motioh to quash an appeal, and for leave to pay into Court, money, which a judgment allowing the redemption of real property directed plaintiffs to pay to one of the defendants. This action was brought by Smith Davis and Oliver Davis, against Cornelius R. Duffie, Gerardus A. 0. Van Beuren, Jonas Conklin and Thaddeus Sherman, Jr., seeking to redeem certain real estate in the City of Hew York, from a mortgage.

<p>An order of arrest, issued as a provisional remedy under the Code, may be made returnable within a specified period after the arrest of the defendant. It is not essential to name a day certain.</p>

An appeal from an order striking out an answer as sham. The action is brought on a promissory note made by the firm of Bushmore, Cone & Co., in favor of themselves, and by them indorsed in their firm name. The plaintiffs were Horace J. Fairchild and Henry A. Fanshawe; the defendants were Thomas L. Bushmore, John A. Cone, Pendleton G. De Craw, William A. Harding, James A. Timpson, William Johnson, George Corbin and Lyell T. Olmstead.

<p>1. In an action on an insurance policy, where the defense involves a charge of fraud on the part of the insured, a compulsory reference of the issues cannot be ordered.</p>