Volume 80 — New York Reports

<p>Appeal from an order of the General Term of the Supreme Court, in the first judicial department, affirming an order of Special Term, allowing the plaintiff alimony and $250 counsel fees.'</p> <p>This was an action for divorce a vinculo.</p> <p>The case, upon a former appeal, is reported in 71 N. Y., 269.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>As the marriage between the parties was directly put in issue, and no evidence of any value introduced to sustain plaintiff’s claim for alimony the application should have been denied, (Carpenter v. Carpenter, 19 How., 539; N. Y. and Harlem R. R. v. Mayor, 1 Hilton, 587.) The separation agreement which releases the defendant from all claims for future support or alimony is valid and binding, and so long as it stands executed in all its parts, by the defendant, it is conclusive against this application. (Rose v. Rose, 11 Paige, 166; Morrell v. Morrell, 2 Barb. S. C. R., 480; McDonough v. McDonough, 26 How., 193; Carson v. Murray, 3 Paige, 483; Wallace v. Bassett, 41 Barb.,, 92.) No question of dower arises in this case, as plaintiff got a deed of all defendant’s real estate under the agreement. (Townsend v. Townsend, 2 Sand., 711.) So long as she retains that her mouth is closed. (Bruce v. Davenport, 3 Keyes, 472; Moyer v. Shoemaker, 5 Barb. S. C. R., 319; 2 Bish. [M. and D.], § 375; 2 id., § 380; Orr v. Orr, 5 Bush., 156; Oliver v. Oliver, 5 Ala. [N. S.], 75; Coles v. Coles, 2 Md. Ch., 341; see, also, Wright v. Wright, 6 Texas, 29.) The plaintiff’s application should be denied as she is not shown to be in need of money. (Kook v. Hock, 42 Barb., 515; Worden v. Worden, 3 Edw., 388.) If the plaintiff had desired a trial of this action on the merits, it could have been had years ago, and as none has ever been sought no alimony should be allowed. (Fowler v. Fowler, 4 Abb., 441.) The payment already made to plaintiff by defendant should be considered under the circumstances presented here. (Rose v. Rose, 11 Paige, 166; Morrell v. Morrell, 2 Barb., 480; McDonough v. McDonough, 26 How., 193.)</p>

The nature of the action and the facts appear in the opinion. The trust and interest vested in the appellant by the deed executed by her husband to her trustee are inalienable. (1 R. S., 728, § 55, sub. 3; id. 730, §§ 63, 65; id., 725, § 36; Watson v. Bonney, 2 Sand. Superior Ct. R., 405; L'Amoreaux v. Van Rensselaer, 1 Barb. Ch. R., 34; Grout v. Van Schoonhoven, 1 Sand.

(Reported below, 16 Hun, 503.) This action was brought upon a policy of fire insurance issued by defendant to plaintiff upon his dwelling-house, barn, etc. The policy contained a condition that “ this ” company “ shall not be liable * * * if without written consent hereon the property shall hereafter become incumbered in any way.” A judgment was subsequently recovered against the plaintiff in the Supreme Court, which became a lien upon the property insured, which defendant…

) “ It is ordered that the bail or security under the writ of ne exeat issued in this action on the 31st day of March, 1869, and the order therefor, made the same day, be reduced to the sum of two thousand five hundred dollars, and the said order and writ be and they hereby are amended by striking out the words “ ten thousand dollars” therein and inserting the words “two thousand five hundred dollars”in the place thereof, and that the sheriff of the city and county of New…

This action was brought to recover damages for alleged negligence causing the death of David H. Cuyler, plaintiff’s intestate. The facts appear sufficiently in the opinion. The corporation defendant was organized under the general railroad law of this State, and possessed no other power or properties than the statute creating it confers, either expressly or as incidental to its very existence. (4 Wheat.

<p>Appeal from order of the General Term of the Supreme Court, in the second judicial department, reversing a judgment in favor of plaintiff, entered upon the report of a referee, and granting a new trial.</p> <p>The nature of the action and the facts are set forth sufficiently in the opinion.</p> <p>The policy was forfeited by a failure to pay the note. No demand was necessary. The note and policy constitute one contract and should be read together. The recital in the policy that the first year’s premium had been paid did not estop defendant from showing that a note had been taken for part of it which was not paid. The forfeiture cannot be relieved against in equity. (Big. on Life Ins. [2d ed.], 284-287; Pitt v. Berkshire Life Ins. Co., 100 Mass., 500; 1 Big. Ins., 284; Anderson v. St. Louis Mut. Life Ins. Co. [U. S. Cir. Ct., W. Dist, of Tenn.], 5 Big. Ins. 527; N. Y. Life Ins. Co. v. Stratham [U. S. Sup. Ct.], 5 Big. Ins., 607; 93 U. S., 24; Rohmer v. Knickerbocker Life Ins. Co., 4 Big. Ins., 278; 4 Daly, 512; Baker v. Union Mut. Life Ins. Co., 43 N. Y., 283.) An assignee of a chose in action, holds only, by an equitable title, an equitable interest. (1 Parsons on Con. [6th ed.], 226, 229.) He takes the same subject to all the equities existing between the original parties ; and the duty of making full inquiry as to the state and condition of the parties devolves upon him; the debtor not being bound to volunteer any information as to the equities. (Mancles v. Dixon, 18 Eng. Law and Eq. R., 82; Bartlett v. Pearson, 29 Me., 9-15; Faul v. Timmerman, 36 Penn., 108; Bush v. Lathrop, 22 N. Y., 535; Trustees of Union College v. Wheeler, 61 id., 88; Crane v. Turner, 67 id., 437; Green v. Deal, 64 id., 226; Livingston v. Dean, 2 Johns. Chy., 478; Murray v. Winter, 2 id., 441.) Only those to whom representations are made, or who are intended to be influenced thereby, can plead an estoppel. (Bigelow on Estoppels [2d ed.], 442, 476; Kulm v. Jersey City, 8 C. E. Green, 84; Mayenborg v. Haynes, 50 N. Y., 675; Baker v. The Union Mut. Life Ins. Co., 43 id., 283, 289; Bispham’s Principles of Equity [2d ed.], 354, § 290.) The party urging an estoppel must show that he has acted on the representation and parted with something, on the strength thereof. (Bigelow on Estoppel [2d ed.], 492; McMaster v. Prest, etc., 55 N. Y., 222, 229; Maloney v. Horan, 49 id., 111.) Past consideration is not sufficient to found an estoppel upon. (Mangles v. Dixon, 18 E. Law and Eq., 82.) The representation must have been made to one who was ignorant of the truth. (Bigelow on Estoppel [2d ed.], 467.) The defendant being a purely mutual company of which every policy-holder is a member, plaintiff was bound to know its rules and regulations. (Bingen v. Ins. Co., 7 Pa., 422.)</p> <p>The defendant having recognized the agency of Rhodes, and held him out as general agent to the insured, cannot now be permitted to deny Rhodes’ authority because it alleges that Rhodes failed to pay over part of the money he then received. (Mowrey v. Rosendale, 74 N. Y., 360; Bronson's Executor v. Chappell, 12 Wall., 47.) The defendant is estopped from denying the truth of the recital in the policy, that it had received the first annual premium upon the making, and delivering the same to the assured. (Dezell v. Odell, 3 Hill, 215; Plumb v. Cattaraugus Ins. Co., 18 N. Y., 392; Continental Bk. v. Bk. of Commomwealth, 50 id., 575; Voorhies v. Olmstead, 66 id., 113; Lyons v. Munson, 99 Otto, 684; Goodwin v. Mass. Life Ins. Co., 73 N. Y., 480; Knight v. Wiffen, L. R. [5 Q. B.], 660; Blair v. Wait, 69 N. Y., 113; Bank of U. S. v. Lee, 13 Peters, 127; 26 Vt., 365.) Having shown that Rhodes kept a regular account with defendant, and paid over monthly his collections, it was competent to show what he did with this money received by him, as representative • of defendant. (Bowen v. Bank of New York, 11 Hun, 226.)</p>

This action ivas brought against the defendant as receiver, etc., of the Erie Railway, to recover damages for the death of Jefferson Fuller, plaintiff’s intestate, alleged to have been caused by defendant’s negligence. The facts appear sufficiently in the opinion. The duty which the master owes to his servant, to keep in his employment competent servants only, and to furnish suitable and reasonably safe machinery and appliances, is not an absolute one.

This action was brought to recover back the purchase-price paid by plaintiffs for a forged bond, alleged to have been sold to them by defendants.

This action was brought for the specific performance of a contract, for the sale by defendant, and the purchase by. plaintiff, of certain lands therein described. By the contract plaintiff agreed to pay the purchase-price one year from date, defendant covenanted to pay all taxes and assessments, imposed on the premises from the date of the contract, until such payment was made, and upon such payment to deliver a warranty deed, executed by himself and wife.

The nature of the motion and the facts appear in the opinion. The appellant was deprived of the books, papers and insignia of office by the judgment of ouster. (Old Code, § 437; Lott v. Sweezey, 29 Barb., 87, 88, 95.) This court, on reversing the judgment of ouster, has the power to compel restitution of the same to him.

<p>The term “ mariners ” includes a purser permanently attached to a vessel; and a theft or embezzlement by him is included in the term “barratry.”</p> <p>Plaintiff shipped, on board of one of defendant’s steamships, a quantity ■ of gold coin, receiving a bill of lading, which contained a clause exempting defendant from liability for any loss, etc., resulting from the following causes, among others: “Theft on land or afloat, ” “barratry of master or mariners.” A portion of the money was stolen en route. In an action to recover for the loss, the evidence tended to show that the theft was perpetrated by the purser. The court charged, in substance,</p> <p>■ that if the gold was lost by the theft of the purser the defendant was liable. Held, error; that in such case defendant was exempted from liability by the clause against barratry; also, held, that if the purser could not be considered a mariner, so that the clause against barratry did not apply to him, then the case was within the exemption as to theft.</p> <p>De Rothschild v. R. M. 8. R. Co. (7 Exch., 734), Simmons v. Law (3 Keyes, 217), distinguished ; Taylor v. L., etc., S. S. Co. (L. R. [9 Q. B.], 546), disapproved.</p> <p>The difference in the views of the courts of England, from those of the courts of this State, as to the' meaning of the words “theft” and “ thieves ” in policies of insurance, pointed out.</p>

<p>The power to receive special deposits is incidental to the business of banking.</p> <p>The enumeration of banking powers in the national banking act is not significant of an intention to place any special restrictions upon national banks as distinguished from State banks. The enumeration is of the general, not the incidental powers.</p> <p>National banks, therefore, have power to receive special deposits gratuitously or otherwise; and when received gratuitously, they are liable for their loss by gross negligence.</p> <p>When a national bank has habitually received such deposits, this liability attaches to a deposit received in the usual way.</p> <p>The term “ special deposits ” includes money, securities and other valuables delivered to banks, to be specifically kept and re-delivered; it is not confined to securities held by the banks as collateral to loans.</p> <p>In an action to recover damages for a special deposit alleged to have been lost through defendant’s gross negligence, it appeared that plaintiff delivered to defendant’s teller, at its bank, for safe-keeping, a package containing certain bonds. Defendant had been accustomed to receive for that purpose, packages supposed to contain securities and valuables. Some of these were left by its directors. The cashier of the bank had the control and management of its affairs. It did not appear that the president took any part in its management, or that the directors held any meetings. The teller sometimes acted as cashier in his absence. - Some time before the deposit, the cashier said something to the teller as to their nc t taking any more packages for safe-keeping. The teller testified that this was not a positive instruction, but merely an opinion, and that he did, after that, receive packages. He also testified that he told plaintiff when the deposit was made, that it would be at his own risk; this was contradicted by plaintiff. The teller also testified that the cashier sometimes told persons depositing packages that they would be at their own risk, and at other occasions packages were received without such notice. The package so left by plaintiff was kept in defendant’s bank for about two years before its loss, being occasionally taken out by him to cut off coupons, and then returned. Held, that the evidence justified the submission to the jury of the question of the authority of the teller, and whether the deposit was with the 'bank; and, this having been found, that defendant was bound to return the bonds when demanded, or to show some sufficient ground for not doing so.</p> <p>There was no direct explanation of the manner of the loss, but the evidence tended to show that the bonds were stolen in the day time, when the bank was open. They were kept in a safe, so placed .as to be accessible to any person entering the bank from the street, while those in the bank were so placed that at times the safe was not in their view, and some-</p> <p>, times the door of the safe was left open. Held, that the evidence authorized a finding, that the bonds were stolen by some one coming in from the street; and that leaving the property thus exposed was gross negligence.</p> <p>Also, held, that the fact that property of the bank was stolen from the same place, at the same time, was not conclusive against the charge of gross negligence.</p> <p>As to whether, assuming the receipt of special deposits to have been beyond the legal power conferred upon defendant, yet having in fact received plaintiff’s property into its custody, it could set up its own want of corporate power as a defense, quaere.</p> <p>Lloyd v.'W. B. Bank (15 Penn St., 172), distinguished; F. JST. Bankv. O. JV". Bank (60 N. Y., 278), distinguished and limited; Wiley v. F. 2V". Bank (47 Vt., 546; 50 id., 389), disapproved.</p> <p>The authoi’ities upon the subject of the liability of banks for special deposits collated.</p>

(Reported below, 16 Hun, 200.) This action was brought to recover the amount of a promissory note, deposited with defendant by plaintiff for collection, which amount, it was alleged, was lost through defendant’s negligence. The note was so deposited December 21, 1877; it was for $1,000, payable at the Bank of Lowville to the order of the maker, and was indorsed by him.. Defendant forwarded the note to that bank by mail; it was received December 27, 1877, the day it fell due.

(See mem. of decision on former appeal, 70 N. Y., 593.) This action was upon a policy of fire insurance covering a stock of goods in plaintiffs’ store at Lexington, North Carolina, The answer set up fraud in over valuation and in the statements as to loss.

This action was in the nature of a quo warranta., to try the title to the .office of alderman in the city of New York.

<p>Appeal from, judgment of the General Term of the Supreme Court, in the third judicial department, affirming a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term.</p> <p>This case is reported upon a former appeal in 68 N. Y., 294.</p> <p>The nature of the action and the facts appear sufficiently in the opinion.</p> <p>The General Term erred in holding that Hoysradt’s trusteeship terminated in November, 1869. (Squires v. Brown, 22 How. Pr., 44; Chandler v. Hoag, 2 Hun, 613; affirmed, 63 N. Y., 624; Broughton v. Otis, 21 id., 261; McHarg v. Eastman, 35 How. P., 205.) If Hoysradt’s resignation did not take effect until May, he, nevertheless, ought not to be held in the Bonn ell case, for the reason that Bonnell’s claim was not then due or payable. (Jones v. Barlow, 62 N. Y., 202.) The General Term erred in holding that the report of 1870 was defective in not containing an affirmation that it was true, and in not showing by whom it was verified. (Bernard v. Darling, 1 Barb. Chy., 219; Hunter v. Le Conte, 6 Cow., 728; Whitney Arms Co. v. Barlow, 63 N. Y., 67.) Statutes creating penalties are to be strictly construed, and can only be extended where they would otherwise be rendered nugatory, or where otherwise there would be a failure of justice. (Hasbrook v. Paddock, 1 Barb., 625; Bridgewater and Utica Plankroad Co. v. Robbins, 22 id., 662; Garrison v. Howe, 17 N. Y., 466; Chase v. N. Y. Cent. R. R. Co., 26 id., 525; Miller v. White, 50 id., 139.) The onus was upon the plaintiffs to show that the report was false in a “ material representation,” and “known” so to be by the defendants when they signed it. (Whitney Arms Co. v. Barlow, 68 N. Y., 37; Stebbins v. Edmands, 14 Gray [Mass.], 203.) The suit brought by Bonnell cannot be maintained, for the reason that he was not an original creditor of the company, but derived his claim by assignment. (Bank of California v. Collins, 5 Hun, 209; O’Donnell v. Seybert, 13 Serg. & Rawle, 56; Boughton v. Smith, 26 Barb., 639, 640.)</p> <p>Three circumstances must concur in point of time to render a trustee of a corporation personally liable for debts, viz., the existence of the debt, the existence of the default in making the report, and the trusteeship. (Shaler & Hall Quarry Co. v. Bliss, 27 N. Y., 299, 300; Chandler v. Hoag, 2 Hun, 615; Nimmons v. Tappan, 2 Sween., 661; Whitney Arms Co. v. Barlow, 63 N. Y., 73.) All the defendants who acted as trustees and signed reports as such, are now estopped from denying that they were trustees in January, 1870, when the default occurred, and in March and June, 1870, when the debts in question were created. (Easterly v. Barber, 65 N. Y., 252, 262; Reed v. Keese, 60 id., 616; S. C., 5 J. & Sp., 269; Deming v. Puleston, 55 N. Y., 655; S. C., 3 J. & Sp., 309; Sanborn v. Lefferts, 58 N. Y., 179; 3 R. S. at large, 735, § 12; p. 736, § 14; Laws 1848, p. 57, §§ 12-14; Laws 1853, p. 705, § 2; Boynton v. Hatch, 47 N. Y., 225, 228; Boynton v. Andrews, 63 id., 93, 97; Pier v. George, 14 Hun, 568; Whitney Arms Co. v. Barlow, 63 N. Y., 63, 64.) The report was void because it was not signed by the ¡^resident, Wheeler, in his own name. '(Walker v. The Bank, 5 Sel., 582, -585.) It was void because not verified by the oath of the president or secretary of the company. (Whitney Arms Co. v. Barlow, 63 N. Y., 66; People v. Sutherland, 16 Hun, 192; Brown v. Smith, 13 id., 408.) The oath which purports to have .been taken by some one, but by whom is' not stated in the jurat, is wholly void because there is no venue to the affidavit. (Cook v. Staats, 18 Barb., 407; Vincent v. People, 5 Park., 88, 101; Lane v. Morse, 6 How., 394; Thompson v. Puritans, 61 N. Y., 52, 63; People v. Crawford, 3 W. Dig., 462; Cameron v. Seaman, 69 N. Y., 402; People v. Suffern, 68 id., 326; McFarren v. St. John, 14 Huu, 387, 389.) This defect cannot be cured by oral evidence that the oath was in fact administered by a proper officer, if such was the fact. (People v. Sutherland, 16 Hun, 192.) The statement in the report that the capital stock was all paid up, without also stating that it was paid in lands, etc., was equivalent to stating that it was paid up in cash, and it is false. (People v. Com. Board, 27 N. Y., 378.) All the trustees are liable for all debts of the company existing when the false report was filed and all that accrued subsequently and before a true report, as the statute calls for, vías made, filed and published. (Bonnell v. Wheeler, 3 N. Y. S. C., 557, 560; 68 N. Y., 297, 298, 299; Case v. People, 14 Hun, 403; Pier v. George, 14 id., 568; Whitney Arms Co. v. Barlow, 6 J. & Sp., 554; S. C., 63 N. Y. 62, 65; Bonnell v. Wheeler, 3 N. Y. S. C., 557, 560; Haviland v. Chase, 39 Bar., 283, 285; Van Ingen v. Whitman, 62 N. Y., 513, 520; Durant v. Abendroth, 69 id., 148, 152, 154; McFarren v. St. John, 14 Hun, 387, 389; Getty v. Devlin, 70 N. Y., 504; Delemater v. Rhodes, 2 Week. Dig., 540; Boynton v. Andrews, 63 N. Y., 93, 94, 95; Schenck v. Andrews, 47 id., 225; 73 Ms. 100; Douglas v. Ireland, 7 Week. Dig., 28; Pier v. George, 14 Hun, 568; Bartholomew v. Bentley, 1 McCook [Ohio], 37, 43; Jones v. Barlow, 62 N. Y., 203, 204; 6 J. & Sp., 142.) All the defendants, as a matter of law, are liable for conspiracy. (Bartholomew v. Bentley, 1 McCook [Ohio], 37, 43; Tracy v. Yates, 18 Bar., 156; Came v. Brigham, 39 Me., 41.)</p>

This action was brought by plaintiffs as administrators of the estate of Henry H. Richardson, deceased, against the defendants as sureties, upon the official bond of Ellen C. Richardson, late administratrix of said estate. The facts, so far as material, are set forth in the opinion.

<p>Under the provision of the Code of Procedure, in reference to making a case for the purposes of review, in an action tried by the court or a referee (§ 268), the ten days allowed for that purpose did not begin to run until the entry of judgment, and notice thereof; the alternative stated therein, “or within such time as may be prescribed by the rules of the court,” meant such further time as might be prescribed.</p> <p>A service, therefore, of a copy of a referee’s report, and notice of filing, did not operate to limit the time to serve a case or exceptions.</p> <p>Accordingly, held, that the rule of the Supreme Court (rule 34 of 1858, rule 47 of 1871 and 1874, and rule 32 of 1877), requiring a case to be served within ten days after written notice of the decision, or report was in conflict with the Code, and consequently inoperative.</p> <p>The practice, in this respect, was not changed by the provision of the Code of Civil Procedure (§ 994), providing that exceptions, taken after trial, may be taken “ at any time before the expiration of ten days after service * * * of a copy of the decision of the court, or report of the referee, and a written notice of the entry of judgment thereupon.”</p> <p>While under this provision exceptions may be taken at any time after trial they are not required to be taken until ten days after notice of judgment; and although no provision is made as to time for serving the case, as the case is required to contain the exceptions (Code § 997), it need not, and cannot be served until after the exceptions are framed, and the party cannot be put in default for not serving a case containing them, before the expiration of the time allowed for framing them.</p> <p>The exceptions referred to in said provision are not simply those taken on the trial.</p> <p>It seems, that where a report of a referee, and notice of filing thereof, were served prior to the going into effect of the Code of Civil Procedure (Sept. 1, 1877), but no judgment had been entered, that even if the practice had been changed by the said Code, and the rule validated, the notice would not have become operative to limit the time for malting a case to ten days after the Code went into effect; as the notice when served did not operate to limit the time, the new provision could not retroact to give it that effect, and a new notice, should have been served.</p>

Appeal by the superintendent of the insurance department from an order of the General Term of the Supreme Court, in the third judicial department, affirming an order of Special Term which directed the issuing of a peremptory writ of mandamus requiring him to pay over to Henry R. Pierson the receiver of the North American Life Insurance Company the proceeds of the sales and conversions of securities deposited by said company with the superintendent, to secure registered…

(Reported below, 18 Hun, 466.) This was an action for absolute divorce ; it was commenced by the service of the summons alone.

<p>A principal is liable, as a general rule, for such wrong of his agent as is committed in the course of Ms employment and for the benefit of the ..principal ; and this, although no express command or privity is proven. ' A corporation is liable for its wrongful acts and omissions and for the acts of its agents while engaged in the business of their agency to the same extent and under the same circumstances as natural persons.</p> <p>One B. was in March, 1874, cashier of defendant, the national Bank of Fishkill, and its managing officer and general agent; he was also plaintiff’s treasurer. He took certain bonds belonging to plaintiff which, in the name and as cashier and managing officer of said defendant, he ■pledged, with various parties as securities for loans. In January, 1876, B. re-possessed himself of the bonds, and returned them to plaintiff, but on the thirty-first of that month again took them, and in the same manner pledged them with W. and McM., a banking firm, as security for ' advances made and to be made to defendant; the bonds were sub- ' sequently sold pursuant to the conditions of the pledge, and the pro- ■ ceeds credited to said defendant. In an action for conversion of the bonds, held, that said defendant was liable; that ignorance on the part of its directors was not a defense, as, if ignorant, it was because they omitted ' the performance of official duty; that although B. had no authority to , take the bonds, when he pledged' them he represented the bank, and his knowledge was notice to it.</p> <p>Also, held, that a counter-claim could not be allowed in such an action. •</p>

(Reported below, 15 Hun, 399.) The facts submitted were, in substance, as follows: The parties hereto, in February, 1877, entered into an agreement by which the defendant contracted to sell and convey, and the plaintiff agreed to purchase, certain premises situated in the city of Now York. The plaintiff refused to accept a conveyance upon the ground that the title of the defendant to the land was defective.

This action was brought by-plaintiff as assignee for the benefit of creditors of John H. Miller, against the creditors for an accounting as to their claims and the amounts to which they are entitled from the assets in the hands of plaintiff as assignee. Defendant Parmelia Miller answered, claiming an indebtedness of the assignor to James D. Miller, an assignment thereof to her, and asked to have t&e distributive share upon said claim paid to her.

(Eeported below, 1 Hun, 35.) The nature of the action and the facts appear sufficiently in the opinion. The judgment in the quo warranta proceedings judicially determined plaintiff’s right and title to the office, and this adjudication is not only conclusive on the parties to that action, but on the city and all others in any way affected by the result.

The defense was usury. The evidence to sustain the defense is set forth in the opinion. Defendant testified that all the transactions in regard to the note in suit, and other notes upon which suits were pending, which were tried with this, were with either David Wood or Elisha Cole, clerks of Mr. Foster, plaintiff’s testator, at his banking-house.

(Reported below, 14 Huii, 542.) This action was upon an undertaking given by defendant Horwitz as principal, and the other defendants as sureties. The nature of the undertaking and the material facts appear in the opinion. The undertaking in suit substantially complied with the statute providing for bail on arrest in replevin cases.

<p>Appeal from the judgment of the General Term of the Supreme Court, in the fourth judicial department, affirming a judgment in favor of plaintiff entered upon a verdict, and affirming an order denying a motion for a new trial.</p> <p>This action was brought to recover damages for alleged negligence causing the death of Mathias Wasmer, plaintiff’s-intestate.</p> <p>The facts are substantially stated in the opinion.</p> <p>The respondent should have been nonsuited, because she failed to show that the negligence of appellant was the sole and proximate cause of the death. (Ryan v. N. Y. C., 35 N. Y., 40; Griffin v. N. Y. C., 40 id., 34.) The runaway horse and wagon was the proximate cause of the accident. No negligence on the part of appellant caused the runaway. It was attributable to Wasmer, whether negligent or not. ^ (Wilson v. Sus. Turn. Co., 21 Barb., 68, 80, 81; Cosgrove, admx. v. N. Y. C., 13 Hun, 329; Titus v. Worthbridge, 97 Mass., 258; Fogg v. Nahant, 98 id., 578.) Under the circumstances of this case, the appellant would only be liable for wantonly and maliciously injuring Wasmer or his property. (Ton. R. R. Co. v. Munger, 5 Denio, 267; Ton. R. R. Co. v. Munger, 4 Comst., 349, 359.) Negligence, or failure to exercise care, is not synonymous with a wanton, malicious act. (Gardner v. Heartt, 3 Denio, 236, 237, Ton. R. R. Co. v. Munger, 5 Denio, 267; Deyo v. N. Y. C., 34 N. Y., 11.) If an action for negligence can be maintained in such a case, it can only be for neglect to use the means at hand in trying to stop the train. (Owen v. H. R. R. R. Co., 35 N. Y., 516.) The plaintiff’s intestate was guilty of contributory negligence, both under the ordinance and at common law. (Utter v. N. Y. and Har. R. R. Co., 2 Keyes; Gray v. Second Ave. R. R., 53 N. Y., 561; Morris v. Kohler, 41 id., 42; Devillo v. The Southern Pacific Railroad Co., 12 Amer. Railway, 180; Salter v. U. and B. R. R. R. Co., 75 N. Y., 273.) Wasmer was guilty of contributory negligence in rushing after his horse. (Belton v. Baxter, 54, N. Y., 235; Ecker v. The Long Island R. R. Co., 43 id., 506; Devello v. The South. P. R. R. Co., 12 Am. Railway Cases, 180.) This case is plainly distinguishable from that class of cases in which the property of the injured person was placed in a position of danger, without fault on his part. (Bernhardt v. Ren and C. R. R., 23 How., 166, 169; Dexter v. Starin, 73 N. Y., 601.) Neither does it come within the principle of those cases which hold that a party who places another in peril cannot complain of his failure to exercise the best of judgment. (Voak v. North Central R. R., 75 N. Y., 320; Austin v. New Jersey Steamboat Co., 43d id., 75.)</p> <p>When a railroad company has its tracks in a city street, it is bound to maintain the tracks and the street, contiguous thereto, in a good and safe condition. (Conroy v. The Twenty-third St. R. R. Co., 52 How., 49; 2 R. S. [6th ed,], 533, § 391, sub. 5; Cott v. Lewiston R. R. Co., 36 N. Y., 214, 217; Fletcher v. Auburn, etc., R. R. Co., 25 Wend., 464; Worster v. Forty-second St. R. R. Co., 50 N. Y., 203.) The defendant was negligent in maintaining the rails of its road in a city street, so much above the level of the highway, that a wagon could not conveniently pass over them. (Shearman & Redficld on Neg. [3d ed.], § 446; Oliver v. N. E. R. R., 11 Wis., 160; Milwaukee, etc., R. R. v. Hunter, id.) The jury was justified in finding the defendant guilty of negligence in running the train, at an improper rate of speed. (Massoth v. Del. and Hud. Canal Co., 64 N. Y., 524; Correl v. The B. C., etc., R. R. Co., 38 Iowa, 120; 18 Am. R., 22.) Had the intestate been guilty of contributory negligence, the defendant, by the exercise 'of ordinary care, could have prevented the accident, and would still have been liable. (Davis v. Man,. 10 M. & W., 546; Kenyon v. N. Y. C. and H. R. R. R. Co., 5 Hun, 479; Green v. Frie Railway Co., 11 id., 333; Steele v. Burkhardt, 104 Mass., 59; Radley v. London and N. W. R. R. Co., App. Cas., 754; 18 Moak’s Eng. R., 37.) The question of contributory negligence, even under the ruling of the court, was for the jury, and they were authorized in finding the plaintiff's intestate free therefrom. (Massoth v. D. and H. C. Co., 64 N. Y., 524; Steele v. Burhhardt, 104 Mass., 59; Southworth v. Old Colony, etc., R. R. Co., 105 id., 342; Jetter v. N. Y. C. and H. R. R. R. Co., 2 Keyes, 160, 161; Correl v. B. C. R. and M. R. R. Co., 38 Iowa, 120; 18 Am. R., 22, 27; Terry v. Jewett, Rec'r, etc., 20 Alb. L. Jour., 393; Weekly Dig., 137; Schrinfeldt v. Norris, 115 Mass., 17; Bernhardt v. The Rensselaer, etc., R. R. Co., 23 How., 166; Rexler v. Starin, 73 N. Y., 601; Voak v. Northern Central R. R. Co., 75 id., 320; Mentz v. Second Avenue R. R. Co., 3 Abb. Ct. App. Dec., 274; Macauley v. Mayor, etc., of N. Y., 67 N. Y., 602.)</p>

This action was brought upon an alleged subscription for the capital stock of the plaintiff.

The nature of the action of the facts appear in the opinion. The right of hanking at common law belonged to the individual, and might be exercised by him in all its various relations, as any trade or occupation. (Bank of Augusta v. Earl, 13 Peters, 519-596; Attorney-General v. Utica Ins. Co., 2 Johns. Chy., 371-377; Curtiss v. Leavitt, 15 N. Y., 9-80; Morse on Banking, 1; Cleveland’s General Banking Laws, 17; N. Y. Firemen’s Ins.

This action was brought to recover damages for an alleged unlawful ejectment from a train on defendant’s road.

The nature of the action, and the material facts, are set' forth in the opinion. Defendant being the owner of the pier, and in possession, was bound to see to it that it was kept in proper condition and repair. (1 Dillon on Mun.

<p>A policy of insurance upon the life of B., plaintiff’s intestate, was taken out and delivered to defendant as collateral security for two promissory notes against B. & Co., amounting to $4,678.48. These notes the court found, were subsequently compromised and settled, defendant receiving from one W. $925 in full satisfaction, and surrendering- the notes, which were delivered to B. & Co... who destroyed them. W. testified that he purchased the notes of defendant, paying his own money, and afterward delivered them to B., on receiving the amount paid and his expenses. B. paid the first premium on the policy; defendant paid those accruing thereafter. In an action for an accounting, etc., held, that defendant was bound by the settlement, and plaintiff was entitled to the proceeds of the policy, less the premiums paid and interest.</p> <p>As to whether a stoppage in transitu, by a vendor, of goods sold on credit is to be regarded as a rescission of the sale, or simply as an assertion of a right to enforce a lien for the purchase-price, quaere.</p> <p>Upon the theory that the right is to enforce a lien, the vendor must hold the property until the expiration of the credit, and be able to deliver it upon payment of the price, the purchaser having the right to pay the price and take the property; if not paid at the time stipulated, the vendor may sell upon giving notice.</p> <p>The authorities as to the principle upon which the right of stoppage in transitu is founded collated; the prevailing current of American decisions stated as favoring- the theory of a lien.</p>

(Reported below, 14 Hun, 438.) This action was brought to set aside an assessment for a O local improvement upon lands of plaintiff, in the city of Buffalo. The assessment was laid in pursuance of chapter 369 of the Laws of 1875 ; plaintiff alleged that the act was violative of section 17, article 3 of the State Constitution. Chapter 369 of Laws of 1875 is unconstitutional and void.

<p>Foreign corporations are included in the provision of the act of 1855 in relation to the assessment and collection of taxes (chap. 37, Laws of 1855), which provides that all non-resident “ persons and associations ’’ doing business in this State “ shall be assessed and taxed on all sums invested in any manner in said business the same as' if they were residents.”</p> <p>Under this act, a foreign corporation doing business in this State, and having a.principal office or place for the transaction of that business, is to be assessed upon • all sums invested therein, as the personal estate of a domestic corporation is assessed (1 E. S., 390, § 6), i. e.,"in the town or ward where such principal office or place of business is located, without regard to the situs of the property.</p> <p>Where, therefore, certain materials and machinery belonging to the relator, a foreign corporation doing business in this State, and having only one office for the transaction of its financial concerns, which was in the city of Hew York, was assessed and taxed in the town of 0., to H., an agent of the corporation and also a resident of that town, who had charge of the property therein, for the purposes of the business of the corporation, held, that no assessment upon the property could be made save in the city of Hew York; that the assessors of said town had no jurisdiction; and that the assessment was void.</p> <p>A eertiomri to correct the assessment-roll, by striking out the illegal assessment, was issued after the assessors had completed the roll and delivered it to the supervisor of the town. This fact appearing on the return to the writ, a supplemental writ was issued to the supervisor, commanding him to bring the roll into coni’t, which was done, and a hearing was then had on both writs, on the merits. The objection that the writ was not the proper remedy because of the fact that the roll had passed out of the hands of the assessors was not raised. Held, that the defendants were concluded from raising it here.</p>

Also appeal from order of General Term, affirming an order of Special Term, denying a motion to set aside the report of the referee and the judgment entered thereon, and to vacate the order of reference.

(Reported below, 15 Hun, 178.) This action was brought upon an alleged oral guaranty or promise, upon the part of defendant, at the time qf the sale and transfer by him to plaintiff, that the note was good and would be .paid at maturity. ■ The note in question was made by C. E. Marsh, payable to the order of S. S. Marsh, and indorsed by the latter.

An action was commenced in the Marine Court by the defendant, Agathe Habel, against the plaintiffs, to recover a deposit of $400. The bank disputing her title to the fund in question made a motion in the Marine Court to interplead Henry Gunther, the executor of Carl Habel, who also claimed the fund. This motion was granted to a certain extent.

(Reported below, 18 Hun, 446.) The facts appear sufficiently in the opinion. The trial of a feigned issue, is not the trial of an action, but a proceeding to ascertain the truth of a disputed matter of fact, to be used on the trial of the action, for the information of the court. The findings of the jury are auxiliary to the judgment of the court, and the trial of the action is by the court.

■ Appeal from judgment of the. General Term of the Superior Court, of the city of New York, affirming a judgment in favor of plaintiff, entered upon a decision of the court on trial without a-jury. (Reported below, 12 J. & S., 566.) This action was upon a judgment of the District Court of the third judicial district of the State of California.

This action was brought upon a policy of insurance issued by defendant upon the life of Terence Grattan, plaintiff’s testator. The facts appear sufficiently in the opinion. The finding that there was a waiver of service of proofs of death was an error of law upon the facts found. (Co. Litt., 352a; 1 Serg. & R., 444; Riply v. Ætna Ins. Co., 30 N. Y., 136; Underwood v. Farmers’ J. S. I. Co., 57 id., 500; Commonwealth Ins. Co. v. Sennett, 41 Pa. St., 161; Diehl v. Adams Co. Mat.

section 1279 of the Code of Civil Procedure. (Reported below, 15 Hun, 239.) The facts stated in the case were, in substance, as follows : Certain commissioners, appointed under the act, chapter 387, Laws of 1872 and the acts amendatory thereof, constructed a system of water-works for the plaintiff, which was paid for by the proceeds of bonds issued in pursuance of said acts. As a ° part of said works they purchased lands in the town of Rush and erected thereon a reservoir.

The nature of the action, and the facts, appear sufficiently in the opinion. Full performance was a condition precedent to the plaintiff’s right to demand any portion of the price.

Chapter 569, Laws of 1869, as amended by chapter 192 of Laws of 1874, is not unconstitutional, and a referee on sales under foreclosure is only entitled to the fees allowed by it. (Richards v. Richards, Ct. App., Feb. 11, 1879; Wallbridge v. James, N. Y. Wkly.

Woolsey, a purchaser at partition sale herein to complete his purchase. (Eeported below, 19 Hun, 332.) The facts appear sufficiently in the opinion. The Supreme Court had no jurisdiction to grant the decree in the suit for the construction of the will.

<p>Upon the trial of an accessory before the fact, the record of conviction of the principal is sufficient proof prima, facie of that fact, and that he was properly convicted s but it is not conclusive proof of his guilt as against the alleged accessory, and the latter may controvert the propriety of the conviction. The People are entitled to rebut his proofs thereon and to give evidence aliunde of the commission of the principal crime.</p> <p>Where, upon such a trial, after the record of conviction of the principals had been given in evidence on the part of the prosecution, testimony was received under objection and exception, tending to show the commission of the crime by the principals. Held, that the question was simply as to the order of proof, which was in the discretion of the trial court.</p> <p>Coleman v. The People (55 N. Y., 81), distinguished.</p> <p>The case against the prisoner was made up of circumstances, among them the acts of the principals, so proved, the character of which gave ground for inference of the prisoner’s knowledge. Held, that in the reception of such testimony the court did not exceed a wise discretion.</p> <p>The indictment charged the prisoner as accessory to the clime of arson in the first degree ; it charged that the fire was set by the principals in the night-time, and burned the dwelling-house of K., in which he then was. It appeared that the building was a five-story tenement-house, having a common entrance in front and in the rear. The front entrance opened into a hall-way, used in common, and the apartments in the several floors opened into a common hall. The prisoner, with his wife, occupied three rooms; K., with his family, occupied three adjoining rooms; there was no direct communication between the rooms of K. and those occupied by the prisoner ; the fire was set in the prisoner’s rooms and burned portions of them. Held, that the indictment was well drawn; that the building was a dwelling-house, and was the dwelling-house of K. within the meaning of the statute defining arson in the first degree. (2 R. S., 657, § 9.)</p> <p>Dedieu v. The People (22 N. Y., 178); Quinn v. The People (71 id., 561), distinguished.</p> <p>Also, held, that the reception of testimony that the prisoner conferred with the principals after the fire was not error, especially in view of the fact that the prisoner afterwards denied that he knew them at all.</p> <p>As to whether a case is to be considered here as res nova under the provision of the act to enlarge the jurisdiction of the courts of sessions of the city and county of New York (5 3, chap. 337, Laws of 1855, as amended by chap., 3-0, Laws of’1858), which authorizes this court in cases coming from the general sessions to “ order a new trial, if it shall be satisfied that the verdict against the prisoner was against the weight of evidence,” etc., gucere.</p>

The facts are sufficiently stated in the opinion. When property has been taken in violation of the provisions of law, it is proper practice to make a motion to set aside the proceedings. O’Reilly v. Good, 42 Barb., 521; Niagara Elevating Co. v. McNamara, 1 Sheldon, 361.) The warrant is a protection to the collector, and this action cannot be sustained.

<p>Defendant’s assignors sold to the A. B. W. Company, a manufacturing corporation organized under the general act of 1848 (chap. 40, Laws of 1848), certain machinery on credit, the corporation giving its notes for the purchase-price secured by chattel mortgages upon the machinery. Each mortgage provided that the mortgagees might demand possession at any time, and that until such demand the possession of the mortgagor should be “ deemed the possession of an agent or servant, for the sole benefit and advantage of his principal,” the mortgagees. The sale was prior to the amendment of said act (chap. 481, Laws of 1871), authorizing such corporations to mortgage their personal property on consent of stockholders. Defendant took possession of the property. Plaintiff claimed title thereto under a levy and sale on execution against the corporation. Held, that although the form of the security adopted was prohibited by the said act ($ 2), this did not destroy the equitable rights of the vendors to hold the property as against any one except bona fide purchasers, until the purchase-money was paid; that the transaction was in effect a' sale upon condition of payment of the purchase-price as specified, when the entire ownership was to be transferred, up to which time it was the intention that the vendors should hold the title and possession; and the corporation received the property cum onere; that the lights of the vendors were not dependent entirely upon the act of the corporations in creating a lien, but arose out of the transfer, and are secured by the rule protecting the equitable liens of vendors; and therefore, that as between the parties, defendant was entitled to the property.</p> <p>But, held, that a mortgage upon said property given by said corporation to secure an antecedent debt was void.</p>

Sickels—VOL. XXXV. 45 Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, affirming a judgment in favor of plaintiff, entered upon the report of a referee. This action was brought for the alleged conversion of certain trunks and their contents, the baggage of plaintiff and his family. The case is reported upon a former appeal in 49 N. Y., 303. The facts appear sufficiently in the opinion.

<p>Error to the General Term of the Supreme Court, in the first judicial department, to review judgment affirming a judgment of the Court of Oyer and Terminer, in and for the county of New York, entered upon a verdict convicting the plaintiff of the crime of obtaining goods by false pretences.</p> <p>The material facts are set forth in the opinion.</p> <p>The court erred in receiving in evidence an alleged conversation had subsequent to the alleged purchases from the witness, and not at the time of the sale to induce credit. (People v. Haynes, 14 Wend., 547; People v. Tompkins, 1 Parker Cr., 224; Ranney v. People, 22 N. Y., 413.) The learned judge erred in allowing the prosecution to give in evidence under the objection and exception, statements made by the plaintiff in error, in February, 1876, in order to obtain credit from parties other than the complainant. (Biellschoffsky v. People, 3 Hun, 40; 60 N. Y., 616; Weyman v. People, 4 Hun, 511; 62 N. Y., 623; Coleman v. People, 55 id., 81; People v. Justices of Special Sessions, 10 Hun, 158.) The court erred in allowing the prosecuting officer to ask the witness, Ferdinand Mayer, if he had said that plaintiff in error and Hirsch, had done a great wrong, meaning the failure of Hirsch & Mayer, and had acted as thieves. (Stokes v. People, 53 N. Y., 164-183; Coleman v. People, 58 id., 555; People v. Evers, 3 Hun, 716, 719; 63 N. Y., 625; People v. Gonzales, 35 id., 59; Vardervoost v. Gould, 36 id., 644; Anderson v. Boone, 54 id., 334; People v. Casey, 72 id., 393.) It is only as part of the res gesta, that evidence of other acts can be received in a criminal .case to show the intent. (2 Best on Evidence [Wood’s cd., 1876], 876, 88 note; Reg v. Oddy, 5 Cox C. C., 210, 215; Copperman v. People, 56 N. Y., 594; People v. Corbin, 56 id., 363, 365; Coleman v. People, 55 id., 82, 90; 4 C. H. Recorder, 143, 147.) In such cases, only prior acts, never subsequent acts, can be inquired into. (Rex v. Francis, 12 Cox C. R., 612; Hitchcok's Case, 6 C. H. Rec., 43; King v. Parsons, 1 Wm. Black, 932; Rex v. Roberts, 1 Camp., 399.) Such evidence could not fail to mislead the jury, and it will be assumed that it did so. (Coleman v. People, 58 N. Y., 555.)</p> <p>On a trial for a criminal offence other offences of a similar character maybe proved, if they tend to show the quo anima of the offence in question, although they may also tend to show the accused has committed another indictable crime. (1 Whart. Amer. Crim. Law [6th ech], § 649; 3 Greenl., § 15; Steph. Dig. of Evi., art. 11 [May’s ed.], 56; Id, art. 12, p. 61; Rex v. Robert, 3 Camp., 399; Rex v. Ellis, 6 Barn. & Cress., 145; Defrese v. State, 1 Green C. B., 356; Rex v. Davis, 6 Car. & Payne, 177; Rex v. Wylie, 1 N. R., 94; Rex v. Dossett, 2 Car. & Kir., 306; Com. v. Choate, 105 Mass., 459; Dunn’s 'Case, 1 Moo. C. C., 146; Rex v. Oddy, 2 Den. C. C., 264; Rex v. Foster, Dear., 456; Bottomly v. U. S., 1 Story, 135; The State v. Williams, 2 Rich., 418; Wood v. U. S., 16 Peters, 360; Reg. v. Richardson, 8 Cox C. C., 448; Reg. v. Frances, 12 id., 612; Reg. v. Cooper, L. B. [12 Q. B.], 19; Reg. v. Geering, 18 L. J. [M. C.], 215; Stout v. People, 4 Park. C. C., 71; People v. Wood, 3 id., 681; Com. v. Ferrigan, 44 Penn. St., 386; Com. v. Price, 10 Gray, 472; Com. v. Stone, 4 Met., 43; Com. v. Coe, 115 Mass., 481; Com. v. Eastman, 1 Cush., 189; Hitchcock’s Case, 6 C. H. Rec., 43; Com. v. Tuckennan, 10 Gray, 179; Copperman v. The People, 56 N. Y., 591; Biellschoffsky v. The People, 3 Hun, 40; Weyman v. The People, 4 id., 511.) The evidence received in this case was not too remote from the transaction for which the defendant was on trial. (Willis Case, 10 Hun, 158; Com. v. Edgerly, 10 Allen, 186; Rex v. Balls, 1 Moo. C. C., 470; Reg. v. Nisbett, 6 Cox C. C., 320; State v. William Ford, 3 Strob. [S. C.|, 517; Copperman’s Case, 56 N. Y., 591.)' The limit of impeaching questions on cross-examination is largely within the discretion of the trial court. (Casey v. People, 72 N. Y., 393-399; People v. Brawn, 72 id., 573.)</p>

Appeal by defendants, Wesley and Platt, from judgment, so far as it affects them, of the General Term of the Supreme Court, in the first judicial department, affirming a judgment in favor of plaintiff, entered upon a verdict, and affirming an order denying a motion for a new trial.

This action was brought to recover damages for injuries alleged to have been occasioned by an obstruction placed in a highway by defendant’s servants. The facts appear sufficiently in the opinion. Plaintiff could only recover actual damages. (Hamilton v. Third Ave. Ry. Co., 53 N. Y.. 25; Baker v. Drake, id., 211; Ransom v. N. Y. and Erie Ry. Co., 15 id., 413.) He could not recover for medical services or attendance, unless he paid for or became liable for them.

(Reported below, 15 Hun, 26.) This was an action to recover damages for an alleged conspiracy to defraud.

The clause struck out is set forth in the opinion, wherein, also, all the. material facts are stated. The defendants were entitled to an affirmative judgment.

The facts are sufficiently stated in the opinion. The telegraph poles with their attachments, were part of the realty ; and the only .action the plaintiff was entitled to bring was one of trespass, quare clausum fregit. (Electric Telegraph Co. v. Overseers, etc., 24 L. J. [N. S.], 146; People ex rel.

of a judgment of the General Term of the Court of Common Pleas, in and for the city and county of Now York, as modified a judgment in favor of plaintiff, entered upon the report of a referee. The nature of the action, the modification in the judgment made by the General Term, and the facts, so far as pertinent, appear in the opinion. • The pendency of the Supreme Court action was no bar, even though the plaintiff might have set up his claim here as a counter-claim there.

Upon such accounting the administrator claimed that certain United States and town coupon bonds belonged to himself and to his brother, John If. Young.

(Reported below, 12 J. & S., 260.) The nature of the action and the facts are set forth sufficiently in the opinion. The court of Iowa having passed upon the statute their decision is controlling. (Hoyt v. Sheldon, 3 Bosw., 302; Hoyt v. Thompson, 3 Sandf., 421; Shelby v. Guy, 11 Wheat., 361-367; Tioga R. R. v. Blossburg R. R., 20 Wall., 147; Elmwood v. Marcy, 92 U. S., 289; Shelby v. Guy, 11 Wheat., 363; Washington College v. Duke, 14 Iowa, 14; Langan v. Iowa and Min. Cons.

(Reported below, 11 Hun, 552.) This action was brought to recover damages for injuries alleged to have been caused -by defendant’s negligence. • The complaint in substance alleged that John Gregory Smith, Benjamin P. Chaney and Joseph Clarke, were managing and operating the Ogdensburg and Lake Champlain Railroad, as carriers of passengers and freight, and as such, had in use, depot and station grounds, tracks, cars and other appurtenances to said business at Ogdensburg.

(Reported below, 12 J. & S., 564.) This action was upon a check drawn by defendant, payable to one George Herdfelder, and by him indorsed and delivered to plaintiff; the defense was that the check was given Avithout consideration, and that plaintiff took it after presentment and dishonor, and Avith knowledge.

(Reported below, 19 • Hun, 424.) The crime charged was the killing of the wife of the-accused by stabbing her in the neck with a knife. On the trial Edward H. Betts was called as a juror. Upon examination by the prisoner’s counsel, the questions and. answers .were as follows : “ Q. Have you formed or expressed any opinion as to the case now before the court ? A. No, sir. Q. Have you formed any impression in regard to the guilt • or innocence of the prisoner ?

<p>Error to the General Term of the Supreme Court, in the first judicial department, to review judgment, affirming a. judgment of the Court of General Sessions, in and for the-. city and county of New York, entered upon a verdict, convicting the plaintiff in error of the crime of murder in the first degree. (Reported below, 19 Hun, 430.)</p> <p>Most of the material facts are set forth sufficiently in the opinion.</p> <p>Upon the trial certain confessions of the prisoner were admitted in evidence under objection and exception.</p> <p>The first confession was made at the station-house in Boston to the police officer who arrested the accused ; it was objected that it was made under such inducements or influence as should have excluded it. The watch of the deceased had been found upon the prisoner’s person. The officer then asked him where the rest of Mrs. Hull's jewelry was. The prisoner replied that he knew nothing about Mrs. Hull’s jewelry. Afterwards the officer repeated the question, and the prisoner said : “ Will you do me a favor ?” The officer-replied : “ I will if I can y I sympathize with you,” or’ “ I pity you;” “you are in a bad fix.” The prisoner then requested that the officer would send his clothing and things to his mother, and not let his mother know that anything had happened to him. The prisoner then, in answer to a question put by the officer, who asked him to tell about the murder, went on to make a detailed statement of how he entered the house and what he did. The subsequent confessions were made to other parties ; they were objected to on the ground that they were made after the supposed inducements held out by the officer.</p> <p>The court erred in overruling the prisoner’s challenge to the array, and in rendering judgment for the People upon the demurrer. (3 R. S., § 75, art. 2, title 4, chap. 2 [6th ed.]; Hofheimer v. Campbell, 59 N. Y., 269; Reeder v. Sayre, 70 id., 180; Gardner v. Turner, 9 J. R., 260; 2 Tidd, 779; Co. Litt., 158; People v. McKay, 18 J. R., 212.) The court erred in overruling the challenge to the favor to the proposed jurors, Dumahout and Howard, and in permitting them to be-sworn as jurors in this case. (Greenfield v. The People, 74 N. Y., 277; State v. Medlicott, 1 Green Crim. L. R, 227-240.) The indictment was defective in failing to charge the killing to have been felonious and done with malice aforethought. (2 Hale, 184-187.) It is not the duty of counsel, upon an offer, to waive an exception. (Furst v. Second Ave. R. R. Co., 72 N. Y., 546; People v. McKay, 18 J. R., 212; 1 Archibold Crim. Pr. and Plead., 86, note 1; People v. Rector, 19 Wend., 596; People v. Hammill, 4 Parker Cr. Rep., 223; Wilson v. People, 4 id., 619; Coke C. Inst., 47; Cooley’s Blackstone, book 4, v. 2, 194; 3 Inst., 47, 51; 1 Hale, 424, 425, 449; 1 Hawk. P. C., c. 31, § 3; Kely, 127; Fost., 257; Plowd., 261; 2 Hale, 186, 187; Bradley v. Banks, Yelverton, 205; Com. v. Gibson, 2 Va. Cases, 70; Sarole v. Slote, 28 Miss., 268; Edwards v. Slote, 6 Cold. [Tenn.], 5; Com. v. Chapman, 11 Cush., 422; R. v. Nicholson, 1 East P. C., 346; Maile v. Cam., 9 Leigh, 661; Wharton on Horn., § 809; State v. Murdock, 9 Miss.; State v. Gilbert, 24 Miss. [3 Jones], 365; Whart. Am. Cr. Law, book 1, p. 175, § 399; 1 Hale, 450, 466; R. v. Clark, Salk., 377; 4 Black., 307; 1 East P. C., c. 5, §§ 116, 117, pp. 345, 346; 2 Hale, 186; Dias v. Stale, 7 Blackf. Rep., 20; 1 Waterman’s Archbold, 1, 86, 87; 2 Hawk., c. 25, § 110; 2 id., c. 25, §§ 110, 112; 2 id., c. 25, § 61; 2 East P. C., 21, § 11, p. 1033; 2 id., c. 21, § 5, p. 1033; 1 Russell on Crimes; People v. Enoch., 13 Wend., 159, 164; White’s Case, 24 Wend., 558, 559, 581; Sullivan v. People, I Parker, 347, 354, 355; Austin [7 N. Y. Legal Observer], 117; Cooley’s Blackstone, book 4, p. 198; 1 Russell on Crimes, § 4, 538-543; Whart. Cr. Law, § 399; Wharton on Homicide, 260; Dorsey v. People, 2 Parker Cr. R., 606; 11 N. Y., 120.) The court erred in admitting the so-called •confession of the plaintiff in error. (1 Greenl. on Ev. [13th ed.], § 219, p. 256; Phil, on Ev., 401; 2 East P. C., 659; People v. Bates, 11 Cox Crim. Cas., 686; People v. McMahon, 15 N. Y., 385; People v. Phillips, 42 id., 200; Roscoe’s Crim. Ex., 39; Jeffards v. People, 5 Park. C. R., 547; 1 Starkie Ev. [ed. 1824], 48.) A common-law count will not sustain a conviction for murder in the first degree. (2 Hale, 183, 184; Bacon’s Ab. Indictment, G. 1; 5 East, 258; 4 Tenn. Rep., 258; Lambert v. People, 9 Cowen, 578; Waterman’s Archibold [6th ed.], 85; 2 Chitty’s Crim. Law, 171, 173, 281, 289; People v. Wilber, 4 Park., 19; People v. Alen, 5 Denio, 76; Wood v. People, 9 Barb., 678; Briggs v. People, 8 id., 547; Wood v. People, 53 N. Y., 511.) The court erred in refusing to charge that the possibility of death by natural causes must be excluded by the circumstances of murder in the first degree. (3 Greenl. on Ev., § 134; Wills on Cir. Ev., 168; 2 Starkie on Ev., 519-521 [6th Am. ed.].) If it was shown that the deceased died from fright, superinduced by the acts of violence of the accused, he could not be convicted under the indictment. (1 Hale’s Pleas of the Crown, 429; 1 Bussell on Crimes, 487, 488; Wharton on Homicide, § 368; 2 Hale’s Pleas of the Crown, 185, 186; 2 East Pleas of the Crown, c. 5, § 107, p. 341; 2 Hawkins’ Pleas of the Crown, c. 23, § 34; 1 Bussell on Crimes, 556, 557.)</p> <p>The court committed no error in sustaining the demurrer to the special plea or challenge. (3 R. S. [Bank’s 6th ed.], 1025, § 75; Friery v. People, 2 Abb. Ct. of App. Dec., 229; Ferris v. People, 35 N. Y., 125; Dolan v. People, 64 id., 492.) The most culpable irregularities in the procuring of grand and petit jurors offer no ground for reversing a conviction, unless it appears that the defendant was in fact injured and prejudiced thereby. (Ferris v. People, 35 N. Y., 125; Friery v. People, 2 Abb. Ct. of App. Dec., 229, 230; Dolan v. People, 64 N. Y., 485. See, also, Reg. v. Conrahy, 1 C. & D. C. C., 56; Reg. v. Fitzpatrick, 1 C. & D., 513; Commo. v. Leppard, 6 Serg. & R. [Penn.], 395; People v. Gonzalez, 35 N. Y., 49; People v. McCann, 16 id., 61; Shorter v. People, 2 id., 202; People v. Bransby, 32 id., 525.) By his refusal to accept the offer of the court to commence the trial de nova, and his failure to protest against such action, the prisoner wasestopped from claiming any advantage from the original error in sustaining the demurrer, if there was one. (People v. Staleifer, 6 Cal., 405; Barlow v. State, 2 Black. [Ind.], 114; Rice v. State, 16 Ind., 298; State v. Groome, 10 Iowa, 308; Lisle v. State, 6 Mo., 426; Commo. v. Norfolk, 5 Mass., 435; State v. Hoscall, 6 N. H., 360; People v. Van Blarcum, 16 Ill., 364; Brown v. State, 52 Ala., 345. See Legget v. Bank of Pennsylvania, 7 Serg. & R., 219.) The challenges-to the jurors, Dumahout and Howard, were properly' overruled. (Thomas v. People, 67 N. Y., 218, 220, 222; People v. Honeyman, 3 Denio, 121; Lohman v. People, 1 N. Y., 379; Phelps v. People, 72 id., 334; Stokes v. People, 53 id., 173; Greenfield, v. People, 74 id., 277; Costigan v. Cuyler, 21 id., 134; Sanchey v. People, 22 id., 147; O’Brien v. People, 36 id., 276; Staup v. Commo., 74 Penn., 458; O’ Mara v. Commo., 75 Penn. St., 427; Ortwein v. Commo., 76 id.; 426; Curley v. Commo., 84 id., 156; Rex v. Edmonds et al., 4 Barn., Aid., 492; Blake v. Millspaugh, 1 J. R., 316; Durell v. Mosher, 8 id., 445; Mary Riley’s Cases, 1 City Hall Rec., 24; Milligan and Welchman’s Case, 6 id., 69; People v. Fuller, 2 Park. Cr. Rep., 16; People v. Johnson, 2 Whell., Cr. Cas., 369; Ex parte Vermilyea et al., 6 Cow., 554; People v. Mather, 4 Wend., 229; Rogers v. Rogers, 14 id., 132; People v. Bodine, 1 Denio, 281; Freeman v. People, 4 id., 9, 34; People v. Knickerbocker, 1 Parle., 302; Cancemi v. People, 16 N. Y., 503; Stout v People, 4 Park., 109, 132; Sanchey v. People, 4 id., 535; Lowenberg v. People, 27 N. Y., 342; 48 Barb., 275; 36 N. Y., 279; People v. Thompson, 41 id., 5; People v. Mallon, 3 Lans., 233; People v. Allen, 43 N. Y., 33; Manke v. People, 17 Hun, 414; Pender v. People 18 id., 560; Jackson v. Comm., 23 Grat.. [Va.], 927; Plummer v. People, 74 Ill, 363; State v. Johnston, 1 Walk. [Miss.], 396, 399; State v. Dorne, 10 Ired., 469; People v. Brotherton, 47 Cal., 396; State v. Benton,. 2 Dev. & Bat., 196; State v. Lawrence, 38 Iowa, 54; Alfred et al. v. State, 2 Swan [Tenn.], 581; State v. Ellington, 7 Ired., 61; State v. Ostrander, 18 Iowa, 451; Leach v. People, 53 Ill., 317; Coopier v. State, 16 Ohio St., 328; State v. Kings-bury, 58 Me., 245; Rice v. State, 7 Ind., 336; Gold Mining Co. v. Bank, 96 U. S. Sup. Ct., 462; Clowe’s Case, 8 Grat., 606; Lee v. State, 45 Miss., 119; Moran v. Com., 9 Leigh., 651; Curry v. State, 5 Neb., 413; State r. Williams, 3 Stew. [Ala], 454; State v. Caulfield, 23 La. Ann., 148; State v. Wilson, 38 Conn., 137; Smith v. Comm., 7 Grat., 596; State v. Morea, 2 Ala., 275; State v. Ward, 1 La. Ann., 686; Fahnestock v. State, 23 Ind., 236; Noe v. State, 4 How. [Miss.], 331; Baldwin v. State, 12 Mo., 225; State v. Romain, 11 Nev., 107; McGregg v. State v. Blachf., 105; State v. Pike, 49 N. H., 407; Gardner v. People, 4 Ill., 88; Smith v. Eames, 4 id., 77; Baxter v. People, 8 id., 376; Hart v. State, 57 Ind., 102; Commo. v. Webster, 5 Cush., 297; State v. Bone, 7 Jones [N. C.], 421.) There was no error in admitting the-prisoner’s confessions. (Joy on Confes., § 13; Taylor on Ev., 1, § 803; Rex v. Green, 6 Car. & Payne, 655; Rex v. Lloyd, 6 id., 393; State v. Wentworth, 37 N. H., 218; Reg. v. Boswell et al, 1 Car. & Mars., 584; State v. Tatro, 50 Vt., 483; Com. v. Knapp, 9 Pick., 496; People v. McMahon, 15 N. Y., 384; People v. Wentz, 37 id., 309; Meyer v. State, 19 Ark., 160.) The court correctly charged that if the deceased died from fright caused by the violence of the-prisoner, he could properly be convicted under the indictment of murder in the first degree. (1 Hale PI. Cr., 428; 2 Bish. Crim. Law, § 639 [6th ed.]; 7 Gray, 585; 2 Allen,. 136; Com. v. Green, 1 Ashm. [Penn.], 289; Rex v. Martin, 5 Car. & Payne, 128; Rex v. Webb, 1 Mood. & Rob., 405; Reg. v. Holland, 2 id., 351; State v. Morea, 2 Ala. [N. S.], 275; Reg. r. Haines, 2 Car. & Ker., 368; Reg. v. Longbottom, 3 Cox C. C., 439; Comm. r. McPike, 3 Cush., 187; McAllister v. State, 17 Ala., 434; Reg. v. Murton, 3 Fost. & Fin., 492; State v. Murphy, 33 Iowa, 270; Kee v. State, 28 Ark., 155; People v. Ah Fiat, 48 Cal., 61; Kelly v. State, 53 Ind., 311; Knickerbocker r. The People, 43 N. Y., 177; Bloomer v. The People, 1 Abb. [Ct. of App., Dec.]. 146; chap. 333, Laws of 1876, p. 318; 2 R. S. [1st ed.], 627; Laws 1860, p. 712, chap. 410; Laws 1862, p. 368, chap. 197; Bud v. People, 18 Hun, 487; Com. v. Webster, 5 Cush., 323; State v. Williams, 7 Jones [N. C.], 446; People v. Cromn, 34 Cal., 200; State v. Verrill, 34 Me., 408; State v. Parker, 65 N. C., 453; State v. Burke, 54 N. H., 92; Kennedy v. People, 39 N. Y., 245; People v. Thompson, 41 id., 1; Keefe v. People, 40 id., 348; White v. Commo., 6 Bing. [Penn.], 179; Fuller v. State, 1 Blachf. [Ind.], 63; Wicks v. Commo., 2 Brock. [Va.], 387; Mitchell v. State, 5 Yerg. [Tenn.], 340; S. C., 8 id., 514; Com. v. Flanagan, 7 Watts & Ser. [Penn.], 415; Hines v. State, 8 Hump. [Tenn.], 597; Gehrhe v. State, 13 Texas, 568; Wall v. State, 18 id., 682; Livingston v. Commo., 14 Grat. [Va.], 592; Commo. v. Gardner, 11 Gray [Mass.], 438; People v. Dolan, 9 Cal., 576; Commo. v. Desmarteau, 16 Gray [Mass.], 11; Green v. Commo., 12 Allen [id.], 170; Witt v. State, 6 Cold. [Tenn.] 5; McAdams v. State, 25 Ark., 405; State v. Pike, 49 N. H., 399; State v. Thompson, 12 Nev., 140.)</p>

(Beported below, 12 J. & S., 372.) This action was brought to compel the specific performance of a contract.

(Eeported below, 15 Hun, 321.) This was an action to redeem certain premises situated in the village of Canandaigua. Defendant claimed title under a foreclosure sale, made in January, 1868. The mortgages foreclosed were executed in 1858,, and the foreclosure suit was commenced in August, 1867.

<p>In an action to recover damages for an alleged fraud, plain tiff’s complain, averred and he gave evidence on the trial showing the following facts: In March, 1872, plaintiff was a director and the president of a certain railroad corporation; prior to his election to those offices the corporation had made a contract with one F. P. B. to build and equip its railway; after such eletion plaintiff purchased of F. P. B. an interest in said contract. At the time aforesaid the corporation owed plaintiff §27,500; the total number of its shares then issued was 117, of which plaintiff held sixty. On March 27, 1872, the defendants B. and S. entered into a written contract with plaintiff by which, in consideration of the assignment to them of his claims against the corporation, his stock and “ any interest he might have in the construction contract,” they agreed to pay him the sum owing to him by the corporation as aforesaid, and to deliver to him 2,000 shares of its full-paid capital stock. Said defendants required plaintiff to resign the presidency and directorship, and to use his influence to cause other directors to resign to make room for them and other directors of their selection. Plaintiff performed the contract on his part, resigned his said offices, and procured other direcctors to resign, and said defendants and others nominated by them were chosen to. fill the vacant places. Said defendants paid to plaintiff the Knm specified, and delivered to him certificates purporting to represent 2,000 shares of the stock, with the representation that it was full-paid stock. The complaint also alleged and plaintiff offered to show on the trial that the said stock was not full-paid stock,.but the certificates were unlawfully issued without any consideration, for the purpose of malting up stock to be delivered under the contract. • This evidence was objected to and excluded, and plaintiff was non-suited on the ground that the contract of plaintiff with B. and S. was void, because the assignment to him of an interest in the construction contract when he was president and a director of the corporation, and his holding and undertaking to transfer such interest, also, the arrangement to transfer the direction and control of the corporation to B. and S. without the consent of all the then stockholders, were against public policy. Held, error; that plaintiff, having performed on his part, was entitled to have full-paid stock, and the obligation to him could not be discharged by the delivery of spurious, worthless stock wrongfully issued without any consideration; that it was to be presumed that the construction contract was valid, and although plaintiff while acting as director was under the disability which attaches to all trustees, and could not make a profit to himself in his dealings with the corporation, yet the assignment to him of an* interest in said contract did not make it void, nor was the assignment absolutely void; it was at most simply voidable at the election of the corporation; and as plaintiff, without any attempt to perform and before any objection was made by Ihe corporation or its stockholders, assigned, as he was competent to do, to B. and S., who were competent to take, they acquired whatever interest he had in that contract; also, that assuming it was part of the scheme that plaintiff should transfer the control and management of the corporation, he had the right to transfer all his stock and interest, and with it the control which he had the right to exercise, as he held the majority of the stock then issued; and that in the absence of proof of any wrongful or fraudulent intent, no policy of the law was violated by the ai-rangement.</p> <p>It seems, that plaintiff would not have been permitted to make a profit to himself in his dealings with the corporation, and if his assignor and himself had been allowed by the corporation to go on and complete the construction contract, it could have required him to account for all the profits made by him.</p> <p>It seems, also, that if plaintiff had attempted such a performance while he was a director, the stockholders could have intervened by suits in equity to nullify the contract as to him, or to restrain him from such performance.</p> <p>As to what is a proper measure of damages in such an action, qiuei’e,</p>

(Reported below, 14 Hun, 536.) This action was brought to have it adjudged that certain premises, conveyed to the defendant by deed' in 1854, are held by him in trust; and for an accounting.

(Reported below, 19 Hun, 116.) The attachment was issued May 9, 1879, and a levy made upon property of the defendants. An order for the publication of summons was granted June 5, 1879, of the material portions of which the following is a copy : “At a Special Term of the Supreme Court of the State of New York, held at Chambers at the New County Court House, in the City of New York, on the 5th day of June, A. D. 1879. “ Present—Hon. Abraham R. .Lawrence, Justice.

Tlie facts appear sufficiently in the opinion. An attachment having been issued, and the summons not having been personally served, or publication commenced within thirty days after, the court lost all jurisdiction of the cause, and all proceedings therein became void. (Code of Civil Proc., § 638.) The court, upon defendants’ motion, should have made an order vacating and setting aside the first attachment. (Taylor v. Troncosco, Ct.

The order of publication had a caption as follows : “At a Special Term of the Supreme Court, held at chambers,” etc. It was signed with the initials of the judge with a direction to “ enter.” The order was in fact made by the judge at chambers. After the publication of the summons, plaintiff moved to amend nunc pro tune, by striking out all of the caption preceding the words “ at chambers,” and the direction to enter.

The facts appear sufficiently in the opinion. At a foreclosure sale the purchaser takes the title which the mortgagor had when he gave the mortgage.

The nature of the action and the facts appear sufficiently in the opinion. The plaintiff as voluntary assignee for the benefit of creditors, took subject to all the rights and equities existing against his assignor. (Ex parte Howe, 1 Paige, 125; Blade v. Van Vetchen, 11 id., 21; Cools v. Smith, 3 Sandf.

(Mem. of decision below, 18 Hun, 445.) The sewer was constructed by the commissioner of public works in 1875. The assessment was sought to be vacated on the grounds that the construction of the sewer was not authorized by the corporation, or by resolution or ordinance of the common council of said city, and that no notice was given to the petitioner.

The facts are set forth sufficiently in the oninion. The respondents erred in refusing to make the deduction asked for by the relator. (Laws 1866, § 1, chap. 761; 6 Edmund’s Statutes, 96; id., 826.) The interest of the lessees under the lease in question, is real estate for the purpose of taxation. (Laws 1863, chap. 240; Laws 1866, chap. 761, § 1; Trustees of Elmira v. Dunn, 22 Barb., 402; Averill v. Taylor, 4 Seld., 52.) The relator was not entitled to the reduction claimed.

<p>The keeping of gunpowder or other explosive materials in a place or under circumstances where it will be liable, in case of explosion, to injure the dwelling-houses or the persons of those residing in close proximity, may constitute a private nuisance, for which the person so keeping them is liable to respond in damages, in case of injury resulting therefrom; and that, without regard entirely to the question whether he was chargeable with carelessness or negligence. o</p> <p>The keeping of such materials does not, however, necessarily constitute a nuisance per se; that depends upon the locality, the quantity and the surrounding circumstances.</p> <p>Defendant constructed a powder magazine upon his premises, with the usual safeguards, in which he kept stored a quantity of powder; this, without any apparent cause, exploded, injuring plaintiff’s house upon adjoining iiremises. On the trial of an action to recover damages, the court charged the jury that they must find for the defendant unless they found that he carelessly or negligently kept the gunpowder upon the premises. Held, error 5 that the fact that the explosion took place under the circumstances, tended to establish that the magazine was liable to explode and cause damage to the pi* perty of persons -residing in the vicinity, although guarded against with the greatest- degree of care and vigilgpce, and so evinced its dangerous character; that this itself in some localities would render it a private nuisance; and that the question should have been left to the jury to determine whether from the dangerous character of the magazine, its proximity to other building’s, etc., it was in fact such a nuisance.</p>

(Reported below, 13 J. & S., 66.) This action was brought to have it adjudged that certain stock and bonds, which came into the hands of defendant Kent as administrator of the estate of E. Rockwell, deceased, with the interest and dividends received thereon were held by said defendant in trust; to compel a sale of said stock and bonds, and for an accounting, etc. The facts appear sufficiently in the opinion.

Afpeal from judgment of the General Term of the Superior Court of the city of Buffalo, affirming a judgment entered upon the report of a referee. This action was brought to foreclose a mortgage. It was referred to a referee to determine the manner in which the mortgaged premises should be sold, and the equities and priorities of the several defendants as between themselves.

Appeal,from judgment of the General Term of the Supreme Court, in the first judicial department, affirming a judgment in favor of defendants, entered upon the report of a referee. The nature of the action and. the facts appear sufficiently in the opinion. If the facts proved show a surrender in fact, a dissolution must be decreed. (Slee v. Bloom, 19 John.

■ 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 the report of a referee.

This action was brought by plaintiff to recover damages for an alleged trespass. Plaintiff was lessee of certain premises in the city of New York, which he occupied as a residence and for the carrying on of his business, which was that of manufacturer of and dealer in pictures, lithographs and furniture.

'This action was tried before a referee. On settlement of the case, defendants requested the referee to find certain additional facts, which he refused. Held: that further and more particular findings were necessary in order to test the correctness of the referee’s conclusions, and that without them defendant could not well review the report. Ordered, therefore, as stated below.

In June, 1874, John Gould made and published his last will, in which he disposed of a large estate. He created several trusts for his wife and children, and appointed the appellant Savage trustee of all the trusts, executor of the will, and guardian of his children. In November, 1874, Gould died ; after his death his will was proved and admitted to probate, and Savage took upon himself the duties, of executor and trustee under the will.

This action was brought to recover back moneys alleged to have been fraudulently obtained by defendants, under color of a contract with the State, “ by means of frauds, ' devices, false pretences and vouchers, and corrupt combinations and collusions with State officers.” The opinion read as stated in the minutes was not handed down.