Volume 81 — New York Reports

The relator moved as assignee of Charles Storrs, a creditor of defendant.

(Mem. of decision below, 16 Hun, 106.) The nature of the action and the facts are set forth sufficiently in the opinion.

■ Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department affirming a judgment in favor of plaintiff, entered upon a decision of the court, on trial without a jury. This was a reargument. The decision upon the former argument is reported in 75 N. Y. 516. The action was upon a promissory note, indorsed by defendant Lewis, for the accommodation of the makers, and discounted by plaintiff. Lewis alone answered.

This action was brought to recover damages for alleged negligence on the part of defendant, in permitting an approach to a bridge within the corporate bounds of the city and a part of a pubhc'highway, to be and remain without any railing or barrier upon the sides, in consequence of which the horse and wagon of the plaintiff fell down the bank and the horse was killed and the wagon injured. The facts are set forth sufficiently in the opinion.

(Reported below, 12 J. & S. 389.) This action was brought by plaintiff, as assignee in bankruptcy of Fitch & Co., stock-brokers, to recover an alleged balance on a stock transaction. The plaintiff’s evidence on the trial tended to show that Fitch & Co. purchased 100 shares Rock Island railroad stock for the defendant on a margin, May 14, 1870, and carried the stock for him.

Avery, counsel for said'appellant, upon such accounting, the sum of $1,000 out of the share of the estate going to said legatee. The facts, as far as pertinent, appear in the opinion. The allowance of $1,000 to the appellant’s counsel being void for entire want of jurisdiction, no form of consent, assent or acquiescence would confer legality.

This action «was brought by attachment creditors and the sheriff jointly, under sections 677 and 678 of the Oode of Civil Procedure, to enforce a levy by virtue of the attachment upon a policy of life insurance,' issued by defendant, The Equitable Life Assurance Society, upon the life of Alvin May, which plaintiff claimed had been assigned by the insured to the attachment debtors. The matter was referred to a referee.

(Reported below, 18 Hun, 438.) The nature of the order appealed from, and the facts, are set forth in the opinion. The order was appealable.- (Code of Civ. Pro., § 190.) The General Term, on reversing the judgment of the Special Term, should have ordered a new trial. (Dutch Reformed Church v. Wood, 8 Barb. 421; Foot v. Ætna Life Ins.

(Beported below, 16 Hun, 239.) This action was brought for the alleged conversion of certain gas fixtures and mirrors in a dwelling-house in the city of Brooklyn. The facts appear sufficiently in the opinion. The personal property sued for became a part of the realty as “ fixtures,” and it was such at the time of the mortgage to defendant, and at the time of its purchase at the foreclosure sale.

(Reported below, 20 Hun, 85.) In an action brought by the Rational Trust Company, of the city of Rew York, against the relators, an order of arrest was issued, under -which they were arrested and held in custody by the sheriff. Plaintiff recovered judgment in said action and the relators were charged in execution and thereafter held thereunder.

(Reported below, 14 Hun, 615.) The nature of the action and the facts are set forth sufficiently in the opinion. Nothing short of an adjudication of a court of competent jurisdiction will work a dissolution of a corporation or discharge the trustees from their liability as such.

(Reported below, 8 Daly, 159.) This action was brought against defendants as trustees of the “ .¿Etna Iron Works,” a corporation organized under the General Manufacturing Act (chap. 40, Laws of 1848) to recover the amount of a debt due the plaintiff from the corporation because of alleged failure to file an annual report in January, 1875. The material facts appear in the opinion.

<p>The public are entitled to an unobstructed passage upon the streets, including the sidewalks of a city.</p> <p>A hole in a sidewalk, communicating with a coal vault beneath, is an obstruction.</p> <p>It seems, that in an action to recover damages for injuries occasioned by falling through such an opening, it is not necessary to prove negligence on the part of the defendant; nor, in the first instance, want of contributory negligence on the part of plaintiff. The action is not based upon negligence but a wrongful act, and all that is necessary for plaintiff to prove to mate out a cause of action is, the existence of the hole, defendants’ responsibility therefor, and that in passing plaintiff fell into it.</p> <p>When permission is given by a municipal authority to thus interfere with a sidewalk, solely for private use and convenience, the person obtaining the permission must see to it that the street is restored to its original safety and usefulness.</p> <p>In an action to recover damages for inj uries received by plaintiff in consequence of failing through a coal hole in the sidewalk, in front of defendants’ premises, the answer was a general denial. Defendants offered to prove on the trial that they had obtained the usual permit from the proper authorities, authorizing the construction of the vaults under the walk and the coal hole. This was objected to and excluded on the ground, among others, that it was not pleaded.' Held, no error, that, if a permit was material, it could only be to mitigate the act from an absolute nuisance to one involving care in the construction and maintenance ; that it was necessary not only to plead it but to allege and prove a compliance with its terms, and that the structure was properly made and maintained to secure the same safety to the public that the sidewalk would have done without it.</p>

This action was brought by plaintiffs as judgment creditors of defendant Browning, after return of execution unsatisfied, to have a trust declared in and to require defendant Powers to account for the excess of a sum received by him on sale of a bond and mortgage over the sum paid by him therefor. Defendant Powers alone appeared and answered.

, Eighty-second street, in the city of New York. (Reported below, 31 Hun, 539.) The facts pertinent to the points discussed are sufficiently set forth in the opinion. The certificate of the board of assessors was unofficial and unauthorized. (Ch. 88, Laws 1787, §§ 4, 6 ; ch. 86, Laws 1813, § 175.) The board of revision and correction has no original taxing power; it can only revise or confirm what the assessors have done. (Laws 1872, ch. 580, § 6; 2 Sandf.

<p>Appeal from order of the General Term of the Supreme Court, in the second judicial department, reversing an order of Special Term which appointed commissioners to ascertain and appraise the compensation to be made by the petitioner The Brooklyn and Newtown Bailway Company to the Grand Street and Newtown Bailroad Company for the use of a portion of its' tracks by the petitioner for the purpose of operating its railroad thereon. (Beported below, 19 Hun, 314.)</p> <p>The facts, so far as pertinent to ,the questions discussed, are set forth sufficiently in the opinion.</p> <p>It was not necessary that the construction of the road should be done by the petitioner directly it could be done by its lessee. (Fisher v. New York Central R. R., 46 N. Y. 652, 653, 654; Lake Ont. R. R. v. Mason, 21 Barb. 544; 16 N. Y. 451.) The tracks laid became part of petitioner’s road, as also did those which were laid after the lease, as to which the lessors agreed that the title to the materials, etc., might remain in the lessees. (Haven v. Emery, 33 N. H. 66; Pierce v. Emery, 32 id. 484.)</p> <p>The lease in question was ultra vires. (1 B. S., p. 600, § 3 ; 2 Banks [6th ed.], 391, 599; id. 300, 532, 533; Black v. Delaware and Raritan Canal Co., 27 N. J. Equity, 130, 399, 400; Susquehanna Canal Co. v. Bonham, 9 Watts & S. 27; Commonwealth v. Smith, 10 Allen, 455, 456; Arthur v. C. cmd R. Bank [Miss. Ct. of Errors], 9 Smed. & M. 394, 431; State v. Rives, 5 Iredell, 306; Wood v. Bedford R. R. Co., 8 Phila. 94; Clark v. Omaha R. R., 4 Neb. 458; 2 Kent’s Com. [11th ed.] 333; Laws of 1857, ch. 444; Laws of 1874, ch. 430; 2 Redfield on Rail, ways, 514; Troy and Rutland Railroad Co. v. Kerr, 17 Barb. 581-601; Laws of 1867, ch. 254; Laws of 1869, ch. 844; 8 Phila. 94; Laws of 1851, eli. 19, § 1; Laws of 1854, eli. 282, § 18; Laws of 1872, ch. 843, § 2.) The petitioner was defunct, it not having completed its road within the time prescribed by law. (Acts of 1867 and 1874, as amended by chap. 206 of Laws of 1878, p. 264; Peany v. Calais R. R. Co. 30 Me. 498; 72 N. Y. 247-249.)</p>

This was an action to foreclose the lien of a legacy given by the will of Ira Staples, deceased, to plaintiff’s intestate and charged upon his real estate which was devised to the testator’s two sons, Samuel and David S. Staples. The land devised contained about 361 acres; the devisees entered into possession about 1833, and in 1837 David S. Staples conveyed all his interest therein to Samuel Staples, who assumed the payment of the legacy.

This action was brought to restrain defendant from obstructing the flow of water in a water-course running from the lands of plain tiffs o on to and across the lands of defendant below, and to compel him to remove obstructions placed by him in the stream The facts found were substantially these; Plaintiffs operated a quarry upon their lands near said water-course, which started from a spring upon plaintiffs’ lands.

(Reported below, Y Hun, 298.) This action was brought against defendants as sureties for one Rodewell upon an undertaking given to procure his discharge from arrest in an action brought against him by plaintiff in 1869. Plaintiff obtained judgment against Rodewell in October, 18Y2, and upon return of execution against his property, unsatisfied, an execution against his person was issued in December, 1872.

This action was brought to restrain the defendant from selling certain premises in statutory proceedings to foreclose two mortgages thereon and to have the same adjudged to be extinguished and to require defendant to cancel the same of record, on the ground that the amount of the mortgages was duly tendered and refused. The mortgages were executed by plaintiff. The mortgagees commenced proceedings to foreclose the same by advertisement under the statute.

(Reported below, 16 Hun, 270.) The nature of the action and the facts are set forth sufficiently in the opinion. A holder of commercial paper, offering it for sale, is bound to disclose any knowledge he may have of any facts materially affecting and depreciating its value. (Brown v. Montgomery, 20 N. Y. 287, 292; Lancy v. Clarke, 64 id. 212; Kerr on Fraud, 94, 95; Addison on Torts, 399; Clarke v. Banner, 2 Lans. 67; 2 Kent, 483; Rawdon v. Blatchford, 1 Sandf.

The nature of the action and the facts appear in the opinion. The order to show cause having been duly served upon all the parties, and they having appeared at the time it was returnable, without objection, are estopped from denying that it was irregular, and that the surrogate had no jurisdiction.

<p>Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, afiirming a judgment in favor of plaintiff entered upon a verdict. (Reported below, 16 Hun, 599.)</p> <p>This was an action for libel. In 1814 plaintiff, who was assistant sanitary inspector of the board of health of the city of Hew York, in the discharge of his duties made a report to the superintendent of the health department, wherein, as is stated in the complaint, he “ highly commended the pavement made and furnished by the Grahamite Pavement Company as a pavement of great excellence,” giving statistics, etc. This report was published in the “ City Record,” the official paper of the city. Defendant thereupon wrote a letter, which was published in the “ Tribtme,” containing' the following in relation to plaintiff and his report:</p> <p>“ A young assistant inspector of the board of health by the name of A. MeLane Hamilton has thought it worth while to look outside of the district assigned him, and to write to his superior officer in the health board a letter recommending the Grahamite Pavement. This letter, it would appear, was written under the dictation of the Grahamite Pavement Company, or without a full inquiry into the merits of the subject. What object there was in the production of this letter it might be difficult to learn. It is understood that the stock of the Grahamite Company has been placed ‘ where it will do the most good,’ and the' name of at least one officer of the city government can be given who, on taking official position, where it was supposed he might have to advocate or oppose this pavement, returned to the company stock which had been presented to him. When such an example is known, those who step aside from the strict line of duty, to advocate something outside of their proper official sphere, cannot feel aggrieved if their action is looked upon with suspicion.”</p> <p>The answer of the defendant alleged that his said letter was a privileged communication, alleged the truth of the statements therein, and that they were made in good faith and without malice. Ho proof was offered on the trial to show the truth of defendant’s charges as affecting plaintiff.</p> <p>Defendant’s counsel made the following requests to charge, among others:</p> <p>“ 0th. If the jury should consider that the defendant wrote the article complained of without any actual malicious intention to injure the plaintiff, then, inasmuch as the report of the plaintiff dealt with matters of wide public importance, affecting the interests of the defendant and other tax payers, the defendant had a right to criticise that report and the plaintiff’s conduct in making it, and it is for the jury to determine whether or not he has, in the article complained of, gone beyond the limits of a proper criticism.”</p> <p>The court refused so to charge.</p> <p>“ 7th. Every citizen has a right to criticise the words and acts of any other person in matters of public interest and importance, and such criticisms, made within reasonable limits and without actual malice, are privileged communications, and cannot be made the ground of a charge for libel.”</p> <p>To this request the court replied:</p> <p>“Every citizen has the right to make such criticisms, but they are not privileged communications, and such right is no excuse for charging a man with corruption, if he has not the means of proving it. It is no fair criticism to charge a man with an offense which the party making the charge has not the means of proving.”</p> <p>“ 8th. In determining whether the article complained of was or was not within the limits of reasonable criticism, the jury are at liberty to take into view all the circumstances which attended the making or publication of the plaintiff’s report, or which gave it importance, and, among other things, the subject-matter treated of therein, and the injury and danger to the community which might be caused by said report, if it were wrong in either its statements or its conclusions, and also the bearing and effect of the plaintiff’s report upon matters of such grave public importance as that of street pavements.”</p> <p>The court refused so to charge.</p> <p>“ 9th. The same matters should also be taken into view in mitigating the damages, if any have been sustained.”</p> <p>To this the court replied:</p> <p>“ They are not pleaded in mitigation and cannot be set up.” Defendant’s counsel excepted to the refusals of the court to charge as requested.</p> <p>Comments may be openly made upon the acts and conduct of public officers in matters of public interest and importance, and if they are within the limits of a fair and honest criticism, and are not inspired by actual malice they are privileged by the occasion, and, therefore, not libelous. (Folkard’s Starkie on 1 Slander [4th Eng. ed.], 311, § 246.) The existence of the privilege does not depend upon the truth of the statements made. (Folkard’s Starkie, 319, § 256; King v. Root, 4 Wend. 113; Clark v. Molyneux, 3 E. L. R. [Q. B. Div.] 247.) The only limit to the privilege (where the occasion exists) is that the comments shall be within the limits of a fair and honest criticism and without actual malice. (Campbell v. Spottiswoode, 32 L. J. [Q. B.] 185; Cooper v. Lawson, 8 Ad. & El. 746; Wason v. Walter, 38 L. J. [Q. B.] 34; Henwood v. Harrison, L. R., 7 C. P.; Turnbull v. Bird, 2 F. & S. 508; Eastwood v. Holmes, 1 F. & F. 349; Davis v. Duncan, L. R., 9 C. P. 396; Spill v. Maule, L. R., 4 Exch. 232; Klink v. Colby, 46 N. Y. 427 [1871]; Clark v. Molyneux, 3 E. L. R. [Q. B. Div.] 237.) The question of malice is exclusively for the jury whenever (as in a case of privilege) express malice — not legal malice — must be proved. (Clark v. Molyneux, 3 E. L. R. [Q. B. Div.] 237; Klink v. Colby, 46 N. Y. 427.) The jury must be left to determine whether the alleged libel is in excess of the privilege — exceeds the limits of fair and honest criticism. (Dickinson v. Earl of Wilton, 1 F. & F. 426; O'Donoghue v. Hussey, 5 Irish Rep. [C. L.] 124, 135; Campbell v. Spottiswoode, 32 L. J. [Q. B.] 185; Cooke v. Wildes, 5 El. & Bl. 328; Cooper v. Lawson, 8 Ad. & El. 746.) The failure to submit to the jury the question whether the defendant’s was, or was not, a fair criticism of the plaintiff’s report was a material error. (O'Donoghue v. Hussey, 5 Irish Rep. [C. L.] 124; Lewis v. Chapman, 16 N. Y. 369, 373; Cooper v. Lawson, 8 Ad. & El. 746; Wason v. Walter, 39 L. J. [Q. B.] 34.) The court erred in refusing to charge that unless the jury find that the defendant was influenced by actual malice, this is not a case for punitive damages. (Clark v. Molyneux, 3 E. L. R. [Q. B. Div.] 247; Townshend on Slander, 537, 538; Knight v. Foster, 39 N. Y. 576; Phil., Wilm. & B. R. R. v. Quigley, 21 How. Sup. Ct. 213; Taylor v. Church, 8 N. Y. 452; Hunt v. Burnett, 4 E. D. Smith, 659; Campbell v. Spottiswoode, 32 L. J. [Q. B.] 194; Spooner v. Keeler, 51 N. Y. 527.)</p> <p>This publication was libelous per se without any reference to the special character of the plaintiff as a physician or a public officer. (Sanderson v. Caldwell, 45 N. Y. 398, 401, 402; Oldfield v. R. R. Co. 14 id. 310, 321; Bergin v. Wemple, 30 id. 319; Parker v. Jervis, 34 How. 254.) The evidence offered in justification was properly rejected, because it did not tend to prove that the charge was true. (Townshend on Libel and Slander [3d ed., 1877], 362, 369; Stilwell v. Barter, 19 Wend. 487, 490; Greeley v. Littlejohn, 13 Abb. 48.) The evidence was not competent in mitigation. (Bush v. Prosser, 11 N. Y. 347, 349, 360, 361; Dolevin v. Wilder, 34 How. 491; Williams v. Miner, 18 Conn. 463, 464; Purple v. Horton, 13 Wend. 25; Heaton v. Wright, 10 How. 83; Spooner v. Keeler, 51 N. Y. 527, 535, 536.) Facts in mitigation are unavailable unless pleaded. (Willower v. Hill, 72 N. Y. 38; Code, § 165. Spooner v. Keeler, 51 N. Y. 527: Bush v. Prosser, 11 id. 347; Bisbey v. Shaw, 12 id. 67; Wachter v. Quenzer, 29 id. 547; Gorton v. Keeler, 51 Barb. 475 King v. Root, 7 Cow. 613; Cooper v. Barber, 24 Wend. 105; Hatfield v. Lasher, 17 Hun, 23; Hager v. Tibbets, 2 Abb. [N. S.] 97, 102; Fry v. Bennett, 5 Sandf. 54, 74, 75; Finck v. Justh, 14 Abb. [N. S.] 107, 109.) It was not necessary for the plaintiff to prove the charges to be false. (Hunt v. Bennett, 19 N. Y. 176; Sanderson v. Caldwell, 45 id. 403.) It is not necessary to prove the actual malice of a publication by extrinsic evidence, for the jury may infer it from the face of the libel itself. (Wright v. Woodgate, 2 Cr., M. & E. 573, 577; White v. Nichols, 3 How. [U. S.] 287.) Although a person malting a statement may have an interest in the,question, yet if he makes it too broadly, or to persons who have no interest, he goes outside of .his privilege. (Taylor v. Church, 8 N. Y. 452, 460; Hunt v. Bennett, 19 id. 175; Sunderlin v. Bradstreet, 46 id. 192, 193; Quigley v. Penn. R. R., 21 How. [U. S.] 202, 212.) It is for the court to decide, as matter of law, whether the occasion be privileged. (Klinck v. Colby, 46 N. Y. 431; Janson v. Stuart, 1 T. R. 748; Whiter. Nichols, 3 How. [U. S.] 266; Cooke v. Wildes, 5 El. & Bl. 328, 340.) Defendant was bound to establish the facts showing the privilege, and, among others, that the publication was made' only “ to those having a corresponding interest.” (Hunt v. Bennett, 19 N. Y. 175.) The court, in the case at bar, ought not to have left it to the jury to say whether the defendant’s article was a “fair and reasonable criticism.” (Marston v. Nultee, 8 Bosw. 132; Godson v. Howe, 1 Brod. & Bing. 7; Cooper v. Lawson, 8 Adol. & Ellis, 752.)</p>

The nature of the action and the material facts appear in the opinion. Plaintiff is entitled to recover the “ matter in controversy ” in an action ex cont/raetu under section 191 of the Code of Civil Procedure. To ascertain this not only the pleadings but the whole case will be looked at. (Roosevelt v. Linkert, 67 N. Y. 447; Purdy v. Phillips, 11 id. 406; Code of Civ.

(Reported below, 13 Hun, 306.) This was an action for partition, brought under the act of 1853 (ch. 238, Laws of 1853) in relation to disputed wills; plaintiffs, as heirs-at-law, claiming partition, of lands devised to and in possession of the defendants, Jeremiah B. and Susannah E. Spaulding. William Hall, the testator, the common ancestor of the parties, was a naturalized citizen, residing in this State at the time of his death, July 26, 1861.

(Reported below, 20 Hun, 303.) The assessment in question was for paving the street with Belgian pavement; the work was completed in August, 1877, and the assessment was confirmed in December, 1877. One ground of objection to the assessment was that it was for a repavement of the street, and that under the act chapter 476, Laws of 1875, the costs should be borne by a general assessment.

(Reported below, 16 Hun, 173.) This was an action to foreclose a mortgage. The mortgage and accompanying bond were executed by defendant Acker to plaintiff November 1, 1856, payable one year from date. Defendant Acker, among other things, pleaded the statute of limitations. At the time the securities became due plaintiff was a married woman; her husband died September 8, 1866. This action was commenced December 10, 1877.

<p>Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. (Reported below, 14 Hun, 531.) The nature of the action and the facts aDDear in the opinion.</p>

<p>The provision of the act of 18'ZT (§ 12, ck. 670, Laws of 1871) authorizing the making of a road in the county of Rockland, which empowers the commissioners to sell lands assessed for unpaid assessments, “in the same manner as the comptroller of the State is authorized to sell lands for the non-payment of assessments for taxes, ’ does not make applicable to sales under said act the provision of the statute (§ 65, chap. 437, Laws of 1855, as amended hy chap. 309, Laws of 1860), which declares all conveyances by the comptroller upon such sales by him to be presumptive evidence of regularity.</p> <p>Accordingly, held, that as there was no provision of said act of 1871 making an assessment under it when completed prima faeie evidence of itself of regularity, and as one claiming under an assessment sale would be required to show the proceedings, and would thus develop any defects in- • validating them, an action could not be maintained to set aside the assessment as a cloud on title because of any such defects.</p> <p>In such an action it was alleged that a commissioner was appointed who was not a freeholder, and it was claimed that for this defect the suit was maintainable as it would not appear upon the face of the proceedings. Held, that the court by the appointment of the commissioner adjudged that he was a freeholder, and that this was final unless corrected by a direct proceeding for that purpose.</p> <p>The complaint alleged various fraudulent acts and practices upon the part of the commissioners not appearing in the records, and material false and fraudulent statements in their reports. The complaint was demurred to. Held, that the demurrer was improperly sustained ; that the frauds alleged would vitiate the proceedings; and that equity would relieve against the conveyance under them.</p> <p>Also, held, that the act of 1874 (chap. 895, Laws of 1874) confirming the assessment and declaring it in all respects regular, did not apply to or , cover fraud.</p>

(¡Reported below, 32 J. & S. 581.) This action was brought to recover a stenographer’s bill for services in a criminal action in which the defendants were the attorneys for the prisoner. The facts appear sufficiently in the opinion. The motion to dismiss the complaint was properly granted, there being no evidence establishing a personal obligation on the part of defendants.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, affirming a judgment in favor of defendant Randall entered upon a verdict.</p> <p>(Reported below, 16 Hun, 83.)</p> <p>The nature of the action and the facts are sufficiently set forth in the opinion.</p> <p>Whether the $4,800 mortgage was taken as a payment on the contract or as a security therefor, being the sole issue, evidence of the value of the farm was immaterial and calculated to have a mischievous and improper effect upon the jury. (Newman v. Goddard, 5 N. Y. Sup. Ct. 301; Stokes v. People, 53 id. 164; Mathews v. Smith, 5 Weekly Dig. 167; Green v. Disbrow, 56 N. Y. 334; Townsend Manuf. Co. v. Foster, 51 Barb. 446.) The eighth interrogatory and answer of the witness Pierce taken on commission were incompetent. (People v. Mather, 4 Wend. 224-248; Williams v. Eldridge, 1 Hill, 249; McGuire v. The People, 5 N. Y. Sup. Ct. 682.) The court erred in not allowing, as evidence in chief, that portion of the letter of the defendant Edward Pierce which related to acts accompanying the execution of the contract. (1 Greenl. Ev., § 171 [12th ed.] ; 7 Cranch, 500; 2 Doug. 652; 1 Blatchf. 297; 11 East, 512; Brandt v. Van Cortland, 17 Johns. 335; Jackson v. Vail, 7 Wend. 125; Lewis v. Wadsworth, 2 N. Y. 512; Simmons v. Sisson, 26 id. 264; 21 Barb. 241; 3 J. J. Marsh. [Ky.] 498; Miller v. Barber, 11 N. Y. Sup. Ct. 802.) This letter would be competent if Pierce was not a party to the record. (1 Greenl. Ev., § 180; 16 East, 141; Phillips on Ev. with Cowen and Hill’s notes [4th Am. ed.] 498; 1 Taunt. 104.)</p> <p>Whether some of the questions to Pierce on his examination on commission should have been excluded as leading, addressed itself to the discretion of the court at the trial. (2 R. S. 396 [6th ed.] ; 3 R. S. 656; Cope v. Sibley, 12 Barb. 521-524-526; Hall v. Barton, 25 id. 274-279.) Pierce was in no sense a party to the action. (14 Barb. 536; 27 How. 377; 47 Barb. 131.) An admission made by one of the members of a partnership after 'dissolution does not bind and cannot be given in evidence against the other. (Walden v. Sherburne, 15 Johns. 409; Hopkins v. Banks, 7 Cow. 650; Clark v. Gleason, 9 id. 57; Baker v. Stackpole, id. 420, 434; Hackley v. Patrick, 3 Johns. 536; Van Keuren v. Parmelee, 2 N. Y. 512, 523, 529; Bloodgood v. Bruen, 8 id. 362.) To warrant the receiving of admissions of one partner to the prejudice of another they should have a joint interest in possession not a mere community of interest. (1 Esp. N. P. C. 135; Hackley v. Patrick, 3 Johns. 536; Smith v. Ludlow, 6 id. 267, 269; Whitney v. Ferris, 10 id. 66.) If defendants had been tenants in common of the land the admission of one would not bind the other. (Dan v. Brown, 4 Cow. 483.)</p>

(Reported below, 17 Hun, 140.) This was an action to recover back moneys alleged to have been paid by one Schulte, plaintiff’s assignee. The complaint alleged in substance the following facts: Schulte was the master of a vessel known as the “Laura and Gertrude.” The defendant, at the request of Edward Sohns, loaded this vessel with refined petroleum for him.

(Reported below, 17 Hun, -188.) This action was brought upon a contract between the parties, the material portions whereof, as well as the pertinent facts proved, are set forth in the opinion.

The nature of the action, and the material facts appear in the opinion. There was a sufficient compliance with the statute requiring the docketing of the judgment. (2 R. S. 360, §§ 12,13; title 1, part 3, ch. 5, § 31 [38] of R. S.; 1 Burr. L. Die. 505; 3 Black. Com. 397, 398; 2 Tidd’s Pr. 989 ; Eden’s Bank. Law, ch. 4, § 1; Code of 1856, §§ 279, 280.) The judgment hy default put in evidence cannot affect the parties to this action, because it was not properly docketed.

(Reported below, 12 J. & S. 444.) The nature of the action and the facts are set forth sufficiently in the opinion. The house, when the fire occurred, was vacant and unoccupied within the meaning of the terms of the policy. (Whitney v. Black River Ins. Co., 9 Hun, 41; 72 N. Y. 117; Paine v. Agricultural Ins. Co., 5 id. 619; Wusturn v. City Fire Ins. Co., 15 Wis. 138; Harrison v. City Ins. Co., 9 Allen [Mass.], 231; Dennison v. Phœnix Ins. Co., 9 Ins.

(Reported below, 16 Hun, 230.) This action was brought to compel defendants, as acting trustees of the bondholders of the Hew York, Boston and Montreal Railway Company, to build and maintain fences on each side of the lands taken by them from plaintiff in proceedings for that purpose, on which the road of said company, where it crossed plaintiff’s farm, is constructed, and also to compel defendants to construct a farm crossing under the tracks of said road.

(Reported below, 16 Hun, 80.) This action was brought for the alleged conversion of a span of horses. The facts, as found by the referee, are as follows: One Stephen Baker was born in Lower Canada and resided there till 1873. In that year he went to Moriah, in Hew York, engaged there in business and resided there.

for a new trial. (Reported below, 15 Hun, 172.) This action was brought to recover damages for injuries alleged to have been occasioned by defendant’s negligence. The plaintiff was in the employment of the defendant as a car repairer.

<p>Appeal from judgment of the General Term of the Court of Common Pleas, in and for the city and county of Hew York, affirming a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 8 Daly, 466.)</p> <p>The nature of the action and the facts appear sufficiently in the opinion.</p> <p>A substantial compliance by a contractor with the terms of a contract is not sufficient, when the work is conceded to be incomplete. (Tompkins v. Dudley, 25 N. Y. 273.) Even if the contractor has been induced by the owner to omit performance within the time limited, he would be required to complete the contract with due diligence. (Green v. Hains, 1 Hilton, 254; Leslie v. Knickerbocker Life Ins. Co., 63 N. Y. 27; Wallmam v. Society of Concord, 45 id. 485; Sinclair v. Tallmage, 35 Barb. 602, 607; Reed v. Board of Education, 3 Keyes, 105; Ruff v. Rinaldo, 55 N. Y. 664.) There was no such waiver as would deprive defendant of his right to damages. (Ruff v. Rinaldo, 55 N. Y. 664; Sinclair v. Tallmage, 35 Barb. 602.) Statutes giving liens must be construed according to the language employed, and where no ambiguity exists, courts cannot correct supposed defects. (Mushlitt v. Silverman, N. Y. 360; Benton v. Wickwire, 54 id. 276.)</p> <p>The act of 1875 superseded the act of 1863, and all prior acts on the subject in toto by necessary implication. (Diossy v. Martin, Daily Reg., March 16, 1876; Burbridge v. Marcy, Daily Reg., March 5, 1878; Dexter & Limerick Plankroad Co. v. Allen, 16 Barb. 15; Potter’s Dwarris on Stat. 157, and note; Davies v. Fairburn, 3 How. [U. S.] 636; Norris v. Croker, 13 id. 429.) Before an owner can claim that a contract was forfeited, he must show that in some way he claimed the forfeiture, and thus distinctly put the contractor in default. (Wheeler v. Schofield, 67 N. Y. 311, 314; Gallagher v. Nicholls, 60 id. 438, 448; Sinclair v. Tallmage, 35 Barb. 602, 606.) Literal performance in every detail, according to the specifications,- is not required in building contracts. Substantial performance is sufficient to sustain the lien. (Glacius v. Black, 50 N. Y. 149; S. C., 67 id. 563, 566, 568; Sinclair v. Tallmage, 35 Barb. 602, 604.) The claim for $2,000 unliquidated damages, on account of non-performance within the two months originally stipulated, is inadmissible, because Pinkney waived the element of time in performing the contract, and did not set up such claim, or any claim for damages in Ins answer, and failed to specify said alleged damages of $2,000 for pretended loss of rent. (Schuyler v. Hayward, 67 N. Y. 253, 258, 259.)</p>

<p>Prior equities of antecedent parties to negotiable paper, transferred in fraud of their rights, will prevail against an indorsee who has received the paper in nominal payment of a precedent debt, where there is no evidence of an intention to receive it in absolute discharge and satisfaction beyond that of accepting or receipting it in payment, or crediting it on account.</p> <p>B., P. & Co., being indebted to plaintifl, gave to it their check in settlement of the balance due; the check, on presentation, was dishonored for want of funds; it was presented to the bank on several subsequent occasions but was not paid, and said firm at no time had funds in the bank to pay it. Defendant executed a note for the accommodation of one W., who indorsed it before maturity to said firm, by whom it was delivered to plaintiff in part payment of their debt; plaintiff, at the time, surrendered the check. Held, that such surrender did not constitute plaintiff a Iona fide holder for value so as to shut out the defense that the note was wrongfully diverted, by the payees, from the purpose for which it was made.</p> <p>The authorities holding that the surrender by a creditor of the debtor’s own note, on receiving the negotiable nóte of a third person is a parting with value, collated and distinguished.</p>

Upon trial of the issue of law raised by the demurrer, an order was made overruling it and directing judgment for the plaintiff, with leave to defendant to answer in twenty days on payment of costs; he did not avail himself of this permission, and after expiration of the time granted judgment was entered.

(Mem. of decision below, 19 Hun, 363.) This was an action of trespass guare clausum fregit. Th complaint alleged title and possession in plaintiff; that defendant unlawfully entered upon the lands and deposited thereon large quantities of earth, sand and rubbish, for which plaintiff claimed damages. The answer, among other things, specifically alleged that plaintiff was not and is not the owner in fee, or in possession of the premises.

<p>Appear from order of the General Term of the Court of Common Pleas, in and for the city and county of New York, affirming an order of Special Term.</p> <p>The nature of the orders and the pertinent facts appear in the opinion.</p> <p>The court below erred when it concluded to affirm the order, which it had declared was erroneous, and which it then determined should be reversed. (Code of Civil Proc., §§ 8-14; Rev. Stat., part 3, ch. 8, tit. 13; Edm. ed., vol. 2, 534; People v. Hackley, 24 N. Y. 75; M'Comb v. Weaver, 11 Hun, 273; People v. Randel, 73 N. Y. 416; Slater v. Merrit, 75 id. 268.) The order appealed from was void, as it does not adjudicate plaintiff guilty of any act which, the law recognizes as a contempt of court. (§ 20, tit. 13, ch. 8, part 3, Eev. Stat.; Clark v. Binninger, 75 N. Y. 35, 344; Perkins v. Taylor, 19 Abb. 147.) The referee’s fees in this case are in the nature of interlocutory costs, and cannot be enforced by arrest. (Code, § 15 ; Laws of 1847, ch. 390; Lansing v. Lansing, 4 Lans. 395; Ford v. Ford, 10 Abb. Pr. [N. S.] 74; Perkins v. Taylor, 19 Abb. 146; Code of Civil Proc., § 799; Pitt v. Davison, 37 N. Y. 235; Leland v. Smith, 3 Daly, 320; McKelsey v. Lewis, 3 Abb. N. C. 67; McComb v. Weaver, 2 Hun, 273, and cases there cited; Myers v. Trimble, 3 E. D. Smith, 607; Doran v. Dempsey, 1 Brad. 490; Weeks v. Smith, 3 Abb. 211; McCartin v. Suckel, 10 Bosw. 694.) The order was also void on the ground that it called for an absolute commitment under proceedings in pursuance of section 5 of the statute, while at most a precept under section 4 of the statute could be issued. (People v. Bennett, 4 Paige, 282; Patrick v. Warner, id. 397; Watson v. Nelson, 69 N. Y. 537; People v. Cowles, 3 Abb. Ct. of App. Dec. 507; In re Kelly, 62 N. Y. 198.) The order directing plaintiff to pay $130, referee’s fees, for the disobedience of which plaintiff was adjudged guilty ’of contempt, was irregular and void. (Code, § 799; 2 E. S. [Edm. ed.] 554, § 3; McComb v. Weaver, 2 Hun, 273.)</p> <p>The power of the Court of Common Pleas to commit the plaintiff for misconduct and contempt in disobeying the order of the court, on his own stipulation, cannot be successfully denied. (Code of Proc., § 14; Laws 1876, ch. 449; 3 E. S. [6th ed., Banks] 839; In re Watson v. Nelson, 69 N. Y. 543; People ex rel. v. Bergen, 53 id. 404; 15 Abb. [N. S.] 97.) The neglect and refusal of the plaintiff to pay the referee’s fees after he had stipulated to pay them gave the court power to commit him for his misconduct and contempt. (Clark v. Binninger, 75 N. Y. 352.) The fees of the referee were not costs, and did not come within that portion of subdixdsion 3, section 14 of the Code of Procedure. (Concklin v. Taylor, 68 N. Y. 224.)</p>

The facts are set forth sufficiently in the opinion. The judgment confessed showed a sale and delivery of the goods by the plaintiff to the defendant, Susan Bland, and the plaintiff is now estopped from alleging any title in himself.

(Reported below, 16 Hun, 291.) An action in the Supreme Court was commenced by plaintiff’s predecessor, as receiver of the Hnited States Glass Company, against defendant upon three promissory notes given by him to the company in payment for stock. Defendant set up as a defense that he was induced to purchase by means of false and fraudulent representations as to the condition of the company.

This was an action for slander brought under the statute (chap. 219, Laws of 1871) for words alleged to have been spoken imputing unchastity to the plaintiff. Defendant in his answer set up facts and circumstances tending to show the truth of the charge both in bar and in mitigation, and gave evidence on the trial tending to prove these facts and circumstances.

(Reported below, 17 Hun, 166.) This action was brought to foreclose a mortgage made by defendant Spicer to defendant Day and by him assigned to the plaintiff. The assignment, which was under seal, contained a guaranty of “the payment of the amount due and to grow due thereon (the mortgage) in case of the failure of the mortgagors to pay the same according to the tenor thereof.” A judgment for deficiency was asked and rendered against defendant Day. He alone answered.

This action was brought for services alleged to have been rendered by plaintiff, as engineer for and at the request of the commissioners of the health department of the city of New York. Prior to the 1st day of June, 1871, the plaintiff had been engineer to the board of health, at a salary of $4,000 a year.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the action and the facts, are set forth in the opinion.</p> <p>The inquisition finding the grantor incompetent to contract or dispose of his property at the time of this deed is prima, facie proof of such incompetency at that time and threw the whole burden upon the defendants to show affirmatively, by preponderating evidence, that he was competent to contract, and the gift such as a competent man would make. (Nesbitt v. Lockman, 34 N. Y. 167; Hunter v. Akins, 3 My. & K. 113; Sears v. Shafer, 2 Seld. 268.)</p> <p>Long-continued inebriety, though resulting in occasional insanity, does not require proof of a lucid interval to give validity to the acts of the drunkard, as is required where general insanity is proved. (Gardner v. Gardner, 22 Wend. 526; Peck v. Cary, 27 N. Y. 9.)</p>

This action was brought to restrain the defendants from using plaintiff’s trade-mark. • The complaint alleged and the court found, in substance, that the plaintiff, for more than three years, had been engaged in putting up in packages of about one pound each, and importing an article known as “ Julienne,” a compound of various vegetables for making Julienne soup, devised by plaintiff, upon which packages he had placed a label or trade-mark devised by him.

<p>To maintain an action upon an account .stated, it must appear that the account has been balanced and rendered, with an assent on the part of the plaintiff, either express or fairly implied, to the balance. .</p> <p>Where, in such an action, plaintiff failed to show any assent, express or implied, on the part of defendants, that they were indebted to plaintiff in the balance claimed, and no amendment of the pleadings was asked, held, that a dismissal of the complaint was proper, although there might have been some evidence of indebtedness. - The pleadings in an action will not be amended on appeal to this court for the purpose of reversing a judgment.</p>

(Reported below, ' 8 Daly, 471.) This action was upon a policy of fire insurance, issued by defendant. The defendant, as a defense, set up, among other things, the breach of a condition in the policy. The condition in question and the material facts appear in the opinion. The referee was not in error in finding that kerosene was one of the class or kind of articles ‘ prohibited by the policy. (Oppenheim v. Leo Wolf, 3 Sandf.

(Reported below, 8 Daly, 462.) This action was brought to have a mortgage executed by plaintiffs to defendant upon certain premises purchased by the former of the latter, canceled and discharged of record. In the year 1873 the parties entered into a contract for the sale by defendant and purchase by plaintiffs of certain- lots for $8,000. The contract provided that the plaintiffs should pay $500 when the parties signed it, and $4,000 when the deed was delivered.

(Beported below, 18 Hun, 411.) The facts are set forth sufficiently in the opinion. The residuary legatees take fer capita under the will. (2 Powell on Devises by Jarman, 331; Lee v. Lee, 39 Barb. 172; Lockhart v. Lockhart, 3 Jones’ Eq. [N. C.] 205; Brown v. Lyon, 6 N. Y. 419, 420; Dowding v. Smith, 3 Beav. 541; Harris v. Philpot, 5 Ired. 321.) The residuary legatees take per stirpes under the will.

<p>A vendee claiming title under a contract of sale, void as against public policy, cannot maintain trover unless he has had actual possession ; the contract must have been so fully executed, that his demand can be enforced at law without aid from the illegal transaction.</p> <p>A constructive possession must relate to and rest, upon a legal title ; it is made of acts short of possession in fact, which, supported by the legal title, amount in law to actual possession; without a valid title, therefore, there can. be no constructive possession.</p> <p>In an action for the alleged conversion of a quantity of cotton, it appeared that plaintiff, a citizen of the United States, contracted with the Confederate government, while that power was carrying on war against the United States, to receive cotton in payment for goods contraband of war furnished hy him to that power. Plaintiff delivered the goods, and certain bales of cotton in the hands of Confederate agents at San Antonio, were set aside and marked for him, and shipped to Matamoras by a carrier employed by the Confederate government. Plaintiff received subsequently a bill of lading. The cotton was turned over by a Confederate officer to a commercial firm who sold and delivered it to defendant. Held, that as plaintiff acquired no title under the contract of sale, which was illegal and void, and as he never had actual possession of the cotton, he was not entitled to recover.</p>

This action was brought to foreclose a mortgage executed by defendant Geiszler and his wife, as collateral to their bond. The defense was usury. The facts appear sufficiently in the opinion. To sustain the defense of usury, there must not only be an agreement actually made between the parties for the payment of more than lawful interest, but there must be the intent to do so in violation of the statute against usury.

This -action was brought to recover damages alleged to have been sustained by plaintiff by reason of a conspiracy on the part of defendants. . ■ The substance of the pleadings and the material facts appear in the opinion. Plaintiff had no substantial cause of action. (Hale v. Omaha Nat. Bank, 64 N. Y. 550.) The alleged agreement by Rosenbaum to lend Kohlberg’s capital to him for two years, which was denied, not being in writing, was not, if made, binding in law on Rosenbaum.

<p>A proceeding by reference under the statute to determine and enforce a disputed claim against an estate is notan action but a special proceeding.</p> <p>An order of General Term granting a new trial in such proceedings is not appealable to this court; it is not a final order, and in a special proceeding no appeal to this court is authorized except from a final order. (Code of Civil Procedure, § 190.)</p>

.Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, denying a motion for a new trial, made under section 268 of the Code of Procedure.

<p>Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, affirming a judgment in favor of plaintiffs entered upon the report of a referee.</p> <p>This action was brought to recover for a quantity of glass alleged to have been sold and delivered by plaintiffs to defendants.</p> <p>Defendant's set up as * a defense that the glass delivered was part of a quantity contracted for, that delivery of the whole was a condition precedent to any liability for the purchase-price, and that plaintiffs declined and refused to deliver the residue. The facts appear sufficiently in the opinion.</p> <p>Upon a special contract for the sale and delivery of goods, no action lies for the price, unless there is a complete performance by the vendor. (Catlin v. Tobias, 26 N. Y. 217; Pratt v. Gulick, 13 Barb. 300; McKnight v. Dunlop, 4 id. 36; Mead v. Degolyer, 16 Wend. 635; Paige v. Ott, 5 Denio, 406; Solomon v. Neidig, 1 Daly, 200; Winne v. McDonald, 26 N. Y. 233.)</p> <p>Whether there was waiver of delivery of the whole quantity was a question of fact for the referee to pass upon, to be determined by the consideration of all the surrounding facts and circumstances. (Smith v. Brady, 17 N. Y. 173, 176, 189, 190; Vanderbilt v. Eagle Iron Works, 25 Wend. 665, 666, 667, 668.) The law only allows a party to retain, without compensation^ the benefits of a partial performance, where, from the nature of the contract, he must receive such benefits in advance of a full performance, and by its terms or just construction he is under no legal obligation to pay until performance is complete. (Smith v Brady, 17 N. Y. 173, 187; Krom v. Levy, 3 T. & C. 707; S. C., 6 id. 253, 254; Corning v. Colt, 5 Wend. 253; Vanderbilt v. Eagle Iron Works, 25 id. 665; Visscher v. Greenbank A. Co., 11 Hun, 159; Flanagan, v. Demarest, 3 Robt. 173; Normington v. Cook, 2 T. & C. 423; Welch v. Moffit, 1 id. 575.) Parties must abide by the terms of their contracts, so far as they cover their acts. The court cannot make a contract for them in place of the one they have made for themselves. (Mead v. Degolyer, 16 Wend. 636; Smith v. Brady, 17 N. Y. 187.) After the acceptance and use under the circumstances detailed, it would require a very positive and specific reservation of a precedent condition to preserve it with all its technical and penal consequences. (Vanderbilt v. Eagle Icon Works, 25 Wend. 668; Catlin v. Tobias, 26 N. Y. 219, 222.) The refusal made by the letter of December 13, 1873, to permit any completion of the contract would relieve plaintiffs of the duty to perform, and give them a right to recover had there been such an indefinite extension of the time of performance. (Monroe v. Reynolds, 47 Barb. 574; Hubbell v. Van Schoening, 4 T. & C. 649; Myer v. De Miers, 52 N. Y. 647; Sears v. Conover, 34 Barb. 333.) Evidence of the value of the goods delivered at the time of their delivery was not proper. (Ludlow v. Dale, 62 N. Y. 617.)</p>

The complaint in this action alleged in substance that defendant, The Hudson River & Kennebec Ice Company, a corporation duly organized, etc., was indebted to plaintiff in a sum specified for money loaned. That said corporation prior to January 4, 1877, was the owner of real estate and other property of the value of $80,000.

(Reported below, 16 Hun, 209.) This action was brought to foreclose a mortgage executed by defendants; Watters and wife, to the plaintiffs, as trustees under the will of Henry L. Yan Wyck, deceased. The defense was usury. The facts appear sufficiently in the opinion. The presumption of law is, that whatever one of the trustees did was with the concurrence and consent of the others. It was the duty of all the trustees to participate in the loan.

(Reported below, 15 Hun, 309.) This action was for the partition of a farm situate in Jefferson county, of which Isaac L. Roseboom died seized. Plaintiff claimed as grantor of the widow of the deceased a fee in one-third of the premises. The defendants, who are the children of the deceased, claim that, under the will of the deceased, the widow took only a life estate in the one-third. The provision of the will upon which the controversy hinges is set forth in the opinion.

(Mem. of decision below, 18 Hun, 580.) The charge of Ike judge as to murder in the second degree was erroneous. (Stokes v. People, 53 N. Y. 164.) A prisoner cannot avail himself of a ruling of the court and afterward object to it where no exception was taken. (Slattery v. People, 1 Hun, 311; Fralich v. People, 65 Barb. 48; People v. Thompson, 41 N. Y. 6.) Any specific instruction desired must be asked for. (Parsons v. Brown, 15 Barb. 590; Haupt v. Pohlman, 16 Abb.

The nature of the action and the facts appear sufficiently in the opinion. The finding, that the note was not delivered or received upon any usurious agreement, and that no usurious interest was reserved or received thereon, being wholly without evidence to support it, was error of law. (Matthews v. Coe, 49 N. Y. 57; Mason v. Lord, 40 id. 477.) The note in suit was an accommodation note, and had no inception as a note previous to the- sale to the plaintiff.

<p>In an action'to recover damages for an inj nry received by an employee of defendant, through its alleged negligence, it appeared that plaintiff was employed in loading and unloading a dirt train ; the train had been standing for about an hour on a down grade while being loaded. The evidence showed that not all, and tended to show that but two of five brakes upon the cars of the train were set. Those employed in loading were directed to get aboard, and while climbing on the cars from some cause they started, and plaintiff, who was between two of them attempting to get aboard, was injured. It appeared also that the brakes, although not the best in use, were such as were in common use on dirt cars, and that they had been inspected and put in order a short time before the accident; also that the cars were suitable for the purpose for which they were used. . There were two brakemen on the train whose duty it was to look after and apply the brakes. It was not shown that "they were incompetent. Held, that the court erred in refusing to dismiss the complaint; that the jury were not justified in finding that the movement of the cars was attributable to any defects in the brakes; but the only reasonable inference was that it was owing to the fact that only part of the brakes were set; and if the injury was caused by the neglect of the brakemen in this respect it was the negligence of co-servants, for which the defendant was not liable.</p> <p>At the time of the movement of the cars the engine was standing on the track, reversed, the engineer was upon the tender of the engine calling to the men, the movement pushed the engine forward a few feet, the fireman let on a little steam and the engine backed the train about tho distance it had moved forward, and on the engine being again shoved forward the fireman again backed it; this was repeated two or three times. The evidence was not clear as to the precise time plaintiff was injured ; he was between the cars when they first moved forward. The evidence was to the effect that this handling of the engine was proper under the circumstances. Held, that, assuming plaintiff was injured by the backing of the train, the evidence failed to show that the conduct of the fireman was not discreet and prudent.</p> <p>It was claimed that defendant was negligent in not sending out a conductor with the train, that if one had been sent the engineer would have been upon the engine and might have managed the train more skillfully. Held, that upon the facts proved no presumption arose that if the engineer had been upon the engine the accident would not have happened.</p>

(Eeported below, 19 Hun, 389.) The action was referred by stipulation. It was once tried and judgment rendered in favor of plaintiff; the judgment was reversed on appeal and a new trial granted. Defendant noticed the case for re-trial before the same referee, and the plaintiff not appearing, the referee dismissed the complaint.

This action was brought against defendants, as trustees, under the will of John Butterfield deceased, to reach the trust estate or the income thereof, and to have the same applied in payment of a debt existing in favor of plaintiff against the beneficiary. The facts appear sufficiently in the opinion. The appeal from the order concedes the validity of the judgment, and it cannot be questioned or reviewed.

(Reported below, 19 Hun, 477.) The material facts appear in the opinion. The court had no jurisdiction to issue the attachment. (U. S. R. S. [ed. of 1878], § 5242; Farmers', etc., Bank v. Deering, 91 U. S. 29; Chesapeake National Bank v. First National Bank of Baltimore, 40 Md. 269; Thompson's National Bank Cases, 117, 503; Central National Bank v. Richland National Bank, 52 How. Rr. 136; Rhoner v. First Nat. Bank of Penn., 14 Hun, 126; Bowen v. First Nat. Bank, etc., 34 How.

■ This action was brought to recover possession of fifty barrels of -whisky. The whisky in question was sold by plaintiffs to J. & J. P. Schell on credit, the sale being, as plaintiffs alleged and as the evidence showed, induced by fraud. The whisky was then “ in bond ” in a United States bonded warehouse subject to a government tax.

Timpson, one of the defendants herein, for an order requiring George W. Lane, late chamberlain of the city of New York, and J. Nelson Tappan, chamberlain, to pay to her certain moneys deposited to her credit with the former as chamberlain. (Reported below, 17 Hun, 520.) The nature of the action and the material facts appeal* in the opinion.

Mcllhargy upon his appointment as collector of the village of Edgewater to plaintiff, the treasurer of that village. The material portion of the bond is set forth in the opinion.

The nature of the action and the facts appear sufficiently in the opinion. Whether the terms of an insurance contract are reasonable is for the parties to it and not the courts to determine. (Sewage v. Howard Ins. Co., 52 N. Y. 504; Springfield F. and M. Ins. Co. v. Allen, 43 id. 389-394.) The insurance by the Home policy being upon the same property and the same interest, and to the same assured, was specifically prohibited by the Glens Falls policy, whether valid or not.

<p>Under an assignment for the benefit of creditors the assignee is merely the representative of the debtor and must be governed by the express terms of his trust.</p> <p>L. executed his bond and mortgage to secure an indebtedness ; the mortgage contained a provision that upon failure to pay interest and taxes accruing the whole mortgage debt should, at the option of the mortgagees, become due. Such default having occurred the mortgagees commenced foreclosure and a receiver was appointed who took possession of the mortgaged premises. Prior to the commencement of the foreclosure suit L. executed an assignment for the benefit of creditors ; the assignment contained no provision giving preference, or in relation, to taxes, save as they were included in the general and unpreferred debts. The mortgagees upon petition setting forth these facts, and alleging that L. had failed to pay the taxes, and that the lands were insufficient security, moved for an order requiring the assignee to pay the taxes in arrear. Held, that the application was properly denied; that the authority of the assignee and the control of the court over him was limited by the terms of the assignment, and he could only be compelled to perform the trust therein defined ; that, therefore, the court had no power to direct liim to pay a debt of the assignor or to give it a preference in violation of the assignment.</p> <p>Also held, that the assignee could not be compelled to pay the taxes which accrued after the assignment.</p> <p>The distinction between such a case and that of the distribution of a decedent’s or bankrupt’s estate pointed out.</p> <p>As to whether taxes as a debt due to the State are entitled'to a preference in payment from an insolvent estate, qumre.</p> <p>If so, the State alone can assert the right. An individual cannot interfere in its behalf.</p>

This action was brought to recover salary alleged to be due plaintiff as alderman. The complaint-alleged in substance that plaintiff was elected to that office in December, 1869, for the term of two years, at an annual salary of $4,000, from January 1, 1870; that he qualified, and entered upon the discharge of the duties of the office; that he has received of his salary the sum of $1,666.69, and that the balance has not been paid.

<p>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 a verdict.</p> <p>This action was for malicious prosecution.</p> <p>The complaint alleged in substance that defendants appeared before apolice justice in the city of Mew York, and without probable cause, charged plaintiff with having stolen two deeds, one executed by him to Maria Stoddard conveying certain premises in the city of Mew York, the other executed by said Maria Stoddard conveying the same premises to defendant Iirekeler, and procured the said police justice to issue a warrant whereon plaintiff was arrested and imprisoned. Also that the defendants appeared before the grand jury and falsely and maliciously and without probable cause charged plaintiff with the larceny of said deeds and procured the indictment upon which he was arraigned and gave bail; that he appeared as required by his recognizance, whereupon the district’ attorney, “ after consulting and advising with the defendants,” moved the court for, and obtaining leave, entered a nolle prosequi.</p> <p>The material facts are set forth in the opinion.</p> <p>To maintain this action it was necessary for plaintiff to establish affirmatively that the prosecution was instituted both maliciously and without probable cause. (2 Greenl. Ev. [5th ed.], § 453; Miller v. Milligan, 48 Barb. 36; Vanderbilt v. Mathis, 5 Duer, 304; Forshay v. Ferguson, 2 Denio, 617; Besson v. Southard, 10 N. Y. 236; Heyne v. Blaer, 62 id. 525; Farmer v. Darling, 4 Bur. 1791; Stone v. Crocker, 24 Pick. 81, 83; Bell v. Graham, 1 Nott & McC. 278; Hall v. Suydam, 6 Barb. 83; 1 Hill, on Torts, 416, 430; French v. Smith, 4 Vt. 363; Baron v. Mason, 31 id. 189.) The absence or presence of probable cause does not depend upon the fact of offense having been committed, or that the accused is innocent or guilty of such offense, but upon the prosecutor’s belief or strong suspicion of the truth of the charge made by him, based upon reasonable grounds. (Carl v. Ayers, 53 N. Y. 17; Bacon v. Towne, 4 Cush. 238, 239; Scanlon v. Townly, 2 Hilt. 489; McKown v. Hunter, 39 N. Y. 625; Fagan v. Knox, 66 id. 526; Harris v. Stark, 3 B. Monr. 46; Raulston v. Jackson, 1 Sneed, 132; Miller v. Milligan, 18 Barb. 40; Baldwin v. Weed, 17 Wend. 224.) Although plaintiff, after taking the deeds, retained possession of them for a short time only, he was nevertheless guilty of the crime of larceny, if his intention was to deprive the defendant of her property by placing it beyond her reach. (3 Greenl. on Ev. [Bedfleld’s ed.] 131, § 156 ; 1 Hale’s. P. C. 533; 3 Inst. 69; 2 East’s P. 0. 557.) The discharge of the plaintiff from the indictment found against him, by the entry of the nolle prosequi, is not even prima facie evidence of the want of probable cause, in this case. (Cloen v. Gerry, 13 Gray, 201; 1 Hilliard on Torts, and cases there collected; Bell v. Pearcy, 11 Ind. 233; Krekeler v. Thaule, 73 N. Y. 608.) Counsel fees expended by the plaintiff in prosecuting or defending his cause cannot be allowed as part of the damages. (Good v. Mylin, 8 Penn. St. 51; Alexander v. Herr, 11 id. 537; Stopp v. Smith, 71 id. 285; Hicks v. Foster, 13 Barb. 424; Stewart v. Sonneborn, 8 Otto, 187.)</p> <p>As the defendant Krekeler knew that no crime had been committed,.-and as there was no ground for believing that it had been, her conduct was not only malicious but malignant, and there was no probable cause for her criminal proceedings against the plaintiff. (Fagan v. Knox, 66 N. Y. 525; Thompson v. Lumley, 1 Ab. N. C. 254; Weaver v. Townsend, 14 Wend. 192; Wanser v. Wyckoff, 9 Hun, 178; Murray v. Long, 1 Wend. 140, 141.) The belief must be justified by circumstances and facts. (Carl v. Ayers, 53 N. Y. 14.) Malice need not be proven, but should be inferred from the coarseness and wickedness of the defendant’s conduct. (Wanser v. Wyckoff, supra; Hall v. Sudam, 6 Barb. 83; Murray v. Long, supra.) This court has no jurisdiction to review the question of damages. (Maher v. The Central Park N. and E. R. R. R. Co., 67 N. Y. 52; Oldfield v. N. Y. & Harlem R. R. Co., 4 Kern. 310; Cassin v. Delaney, 38 N. Y. 178; Arctic Fire Ins. Co. v. Austin, 69 id. 470.) The damages are not excessive. (Coleman v. Southwick, 9 Johns. 45, 51; Hewlett v. Cruchley, 5 Taunt. 277, 280; Hager v. Danforth, 8 How. Pr. 435; Tillotson v. Cheetham, 2 Johns. 63, 74; Bump v. Betts, 23 Wend. 85; Cole v. Berry, 8 Cow. 213, * 214; Blum v. Higgins, 3 Abb. Pr. 104; Scherpf v. Szadeczky, id. 366, 375; Leith v. Pope, 2 W. Black. 1327; Rychman v. Parkins, 9 Wend. 470; Fabrigas v. Mostyn, 2 W. Black. 929; Ash v. Ashton [Gen. Term, 2d Dep.]; Townsend v. Hughes, 2 Mod. 150.)</p>

The facts are sufficiently set forth in the opinion. The confirmation of the commissioners’ report, awarding the sums in question, was an adjudication conclusive upon all persons whomsoever that the land had not been dedicated, and that the owner thereof was entitled to substantial damages.

<p>Where, for a valuable consideration received from the payee, an order is drawn upon a third person, payable out of a particular fund then due or to become due from him to the drawer, the delivery of the order to the payee operates as an assignment pro tanto of the fund; the drawee is bound, after notice thereof, to apply the fund, as it accrues, to the payment of the order, and the payee may by action compel such application.</p> <p>Where a draft is drawn generally, to be paid by the drawee in the first instance on the credit of the drawer, the designation by the drawer of a particular fund out of which the drawee may subsequently be reimbursed, does not convert the draft into an assignment of the fund, and the payee can have no action thereon against the drawee, unless he duly accepts.</p> <p>Where a particular fund to accrue in futuro is designated in the instrument, and the language thereof is ambiguous, evidence of the surrounding circumstances may be resorted to for the purpose of determining whether the intention was that the payment should only be made out of the designated fund, or whether the direction to pay was intended to be absolute, and the fund was mentioned only as a means of reimbursement.</p> <p>A. <& Co. being engaged in repairing a house for defendant, for a valuable consideration, executed and delivered to plaintiffs the following instrument, directed to defendant:</p> <p>“ Pay Brill & Russell three hundred dollars, and charge same to our account, for labor and materials performed and furnished in the repairs and alterations of the house in which you reside, in the village of Mohawk.” In an action upon the instrument, it appeared that the work was nearly done when the instrument was executed; the testimony was conflicting as to the amount then due. Previous to its delivery to the plaintiffs, one of them, with the drawer, called upon the defendant and requested him to accept an order for the $300, or give plaintiffs a note or some security therefor, which he declined to do, immediately thereupon the order in question was given, this defendant refused to pay or to recognize. Held, that the order did not necessarily require a construction that it was a request to advance the sum specified; that the direction therein, in connection with the surrounding circumstances, indicated the intent to have been simply to direct payment of such sums as were or might become due to the drawers on the account for repairs, up to the amount specified; that thus construed, the order was an assignment of so much of the fund; and that a voluntary payment by defendant to the drawers, after notice of plaintiffs’ rights, was in his own wrong, and was no defense.</p>

The substance of the complaint is set forth in the opinion. The claim that a want of privity between plaintiff and the new company defeated the farmer’s claim is not tenable. (Reese v. Bank of Montgomery, 31 Penn. St. 78; State v. McDaniel, 22. Ohio, 354; Stanley v. Chester & Birkenhead Ry. Co., 3 My. & Cr. 773; 1 Ry. Cas. 58; Educards v. Grand Junction Ry. Co., 1 My. & Cr. 650; 1 Ry. Cas. 173; Greenhalgh v. Manchester, etc., Ry.

This action was brought upon an alleged contract, which is set forth substantially in the opinion; plaintiff asked for an accounting and for judgment for the amount found due thereon. The facts appear sufficiently in the opinion. The contract in suit was void under the statute of frauds.

(Memorandum of decision below, 16 Hun, 494.) This action was brought to have certain deeds and mortgages set aside and canceled of record. Held: and which was recorded in the office of the clerk of Jefferson county, as a deed, on the 22d day of December, 1868, which pretended deed was a forgery and the certificate of acknowledgment, false.

<p>Plaintiff, being the owner of a bond and mortgage, assigned them to 0. as security for a debt. C. brought an action to foreclose the mortgage, claiming only the amount due him, and judgment was obtained therein, adjudging that 0. had a lien for that amount, and directing the enforcement of such lien by a sale, etc. Plaintiff thereafter paid the amount due C., and then brought this action to foreclose the mortgage. Held, that the j udgment in the prior action was not a bar ; that after plaintiff had discharged the lien of 0., the mortgage was restored to her as fully, and her relation to it was the same, as if there had been no assignment; that the rule that where an action is brought for part only of an entire demand, the verdict and judgment are a conclusive bar to a subsequent action, for another part of the demand, did not apply.</p>

<p>While, under the Code of Procedure (§§ 58, 46, 47 of Code of 1848; §§ 65, 53 and 54, Code of 1849), an action could not be brought in the Marine Court of the city of New York against an executor or administrator as such, yet, where after the court had acquired jurisdiction of an action the defendant died, the action did not abate, but could be continued against his personal representatives.</p> <p>This rule is not changed by the Code of Civil Procedure, as, while a similar prohibition is contained therein (§ 316, sub. 8), the provisions for continuing actions (§§ 755, 756, 757) are made applicable to the Marine Court (§ o, chap. 449, Laws of 1876, as amended by § 5, chap. 318, Laws of 1877), and the law stands as it did under the former Code.</p> <p>After j ndgment had heen rendered against defendant, in an action in the Marine Court, and after an appeal from the judgment had been argued at the General Term, but before decision, the defendant died ; on motion of plaintiff the Marine Court granted an order continuing the action against the executor of the will of the deceased defendant, to whom letters testamentary had been issued. The General Term, in the meantime, reversed the j ndgment and granted anew trial. On application of the executor the Supreme Court granted a writ of prohibition, restraining the Marine Court from entertaining farther jurisdiction of the action. Held, error; also, that the order affected and deprived plaintiff of a substantial legal right, and in effect determined the action, and so was reviewable here.</p> <p>Also, held, that even if the decision of the General Term of the Marine Court was void under the Code of Civil Procedure (§ 763), because rendered after the death of the defendant, the point was not available on appeal to this court, from the order granting said writ.</p>

This action was brought for the dissolution of a voluntary-association known as “ Washington Tent ISTo. 1, Independent Order of Rechabites,” of which association the parties were members, and for a division of its property and assets.

This action was brought to recover damages for injuries alleged to have been sustained by defendant’s negligence. At the time of the accident, plaintiff was working as a laborer in the iron works of the defendant, at Whitesboro, Oneida county. Plaintiff had assisted to draw a boat into a dry dock connected with the works; after the boat was in the dry dock, it became necessary to pump out the water; this was done by means of a pump, worked by an engine.

The nature of the action and the facts are set forth sufficiently in the opinion. The circumstances show the. agreement contemplated driving the horses for bets or wagers. (Gibbons v. Gouverneur, 1 Denio, 170-3; 1 RS. 662, § 8.) The driving for bets or wagers aforesaid was in violation of a statute of this State.

<p>Appeal from judgment of the General Term of the Superior Court of the city of Hew York, affirming a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 13 J. & S. 571.)</p> <p>This action was brought upon an account against the firm of Strang, Platt & Co., of which firm defendants were alleged to be members.</p> <p>Defendant Snyder alone appeared and answered, denying that he was a partner. The facts are sufficiently stated in the opinion.</p> <p>The defendant Snyder was not a partner in the firm in question. (Burnett v. Snyder, 76 N. Y. 344.) It is not essential that an agreement of sub-partnership, to be valid, should be secret. (Frost v. Moulton, 21 Beavan, 596; Ex parte Barrow, 2 Rose, 252; Bray v. Fromont, 6 Madd. 5; Brain v. De Tastet, Jacob, 284; Reynolds v. Hicks, 19 Ind. 113.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming a judgment in favor of plaintiffs entered upon the report of a referee. (Mem. of decision below, 7 Hun, 470.)</p> <p>This action was brought to restrain the defendants from interfering with the alleged right of plaintiffs to the use of the water from a reservoir or pond upon lands belonging to defendant Cloonan.</p> <p>The case upon a former appeal is reported in 47 1ST. Y. 3. The substance of the facts, as found by the referee, is as follows:</p> <p>In March, "1850, Jansen Hasbrouck, being the owner of certain lands in the village of Rondout, upon which was a mill, called “ The Old Mill,” the pond of which was supplied with water brought by a flume from a reservoir above, conveyed the old mill and pond to Elihu Brown, “ with the right and privilege to use the water of the reservoir dam above for the purpose of the old mill,” conditioned, however, that said right and privilege should cease and revert back to Hasbrouck in case Brown or assigns did not keep the old mill in use. In June thereafter Hasbrouck entered into a written contract with Brown to sell and convey to him a portion of the lands lying between the premises so conveyed and the reservoir, for the sum of $500. The lands covered by the contract were described by metes and bounds, and made no mention of any water rights, privileges or appurtenances. Soon after the contract was executed, Brown commenced the construction of a mill upon the lands, described in the' contract, which was completed the next year, and was in the first place, operated, by water taken from the flume and reservoir. Afterward Brown put a steam engine into the mill, and when there was insufficient water it was operated by steam. In July, 1853, in pursuance of an arrangement between Brown, Hasbrouck and Joseph S. Smith, Brown executed a writing, indorsed upon his contract, by the terms of which he assigned, transferred, released and set over to Hasbrouck all his right, title and interest in and to the contract and the lands therein described, and authorized Hasbrouck to convey them to Smith. Hasbrouck thereupon deeded the premises to Smith, 'the deed being for the expressed consideration of $638. The premises were described in the deed the same as in the contract, with the addition of the words “ with appurtenances.” The referee found that at the time the deed was executed the water privilege and reservoir were openly and visibly in use for the operating of the old mill; that by the conveyance from Hasbrouck to Smith the former intended to convey, and the latter believed he was receiving, a conveyance of the new mill lot, with the water-privilege and use of the reservoir, as the same was then and had been in use since the completion of the new mill; also, that at the time of the said conveyance Brown was operating the old mill with water from the reservoir and flume, and that he and his assigns continued so to do until 1862, when said old mill was destroyed by fire, and was not thereafter rebuilt. Plaintiffs became subsequently the owners of the new mill property. The top of the dam forming the reservoir was one of the streets of said village. In 1861 the defendant Cloonan was the. owner of the lands upon which the reservoir was situated. The trustees of said village of Rondout in that year passed a resolution to construct a new culvert under and across the street, and to fill up the old one, which was the head of the flume. Defendant Cloonan took the contract for the work, notified plaintiffs not to use the water any more, and began to draw off the water from the reservoir, and to fill up the same. The referee found that the “ new mill ” lot, with the water-privileges,' was worth, at the time of the commencement of the action, about $11,500, without the water-privileges, about $1,000.</p> <p>Further facts appear in the opinion.</p> <p>Ho water right was created by any thing done by Brown, while in possession under the contract, not at its date appurtenant to the lot, no such right passed to Smith by the deed from Hasbrouck and wife to him. (Lampman v. Milks, 21 N. Y. 515; Williams on Real Property [2d Am. ed.], 290 [* 269].) As the mill is run by steam at least half the time, it can be operated by steam at all times, and the alleged water privilege cannot be said to be absolutely necessary to the enjoyment of the property. (Lampman v. Milks, 21 N. Y. 515, 516.) The trustees of the village of Eondout were invested with all the powers of commissioners of highways therein, and them duties as such were absolute. (2 Laws of 1867, p. 1389, § 41; Hyatt v. Trustees of the village of Rondout, 44 Barb. 385, affirmed by the Court of Appeals; 2 Laws of 1867, 1390, §§ 41,43; Mosier v. Hilton, 15 Barb. 657, 663, 666.) The referee erred in refusing to allow the defendants to give any direct evidence of Hasbrouclc’s intent. (Kerrains v. People, 60 N. Y. 220; Seymour v. Williams, 4 Kern. 567; Forbes v. Waller, 25 N. Y. 430; Tracy v. McManus, 58 id. 258; McKown v. Hunter, 30 id. 625.)</p> <p>The right to use the water was an appurtenant to the mill and passed in the deed of July 1, 1853, by the words “ with "the appurtenances.” (Lampman v. Milks, 21 N. Y. 507; 47 id. 9; Robbins v. Barnes, Hob. 131.) Upon a conveyance of land, whatever is in use for it, as an incident or appurtenance, passes with it. (Huttemeier v. Albro, 18 N. Y. 48; Thayer v. Payne, 2 Cush. 327.) Ho consequence adverse to the plaintiff’s claim can be given to the possession by Brown of the mill, at the time of the deed from Ilasbrouck to Smith. (1 E. S. 738, § 136; id. 723, § 8; Humbert v. Trinity Church, 24 Wend. 587.) The acts of the defendants cannot be justified under the municipal authority of the Aullage of Eondout. (Clark v. Mayor, etc., of Syracuse, 12 Barb. 32.)</p>

<p>Appeal from judgment of the General Term of the Court of Common Pleas, in and for the city and county of ¡New York, affirming a judgment in favor of plaintiff, entered upon the report of a referee.</p> <p>This action was brought by plaintiff, a corporation organized under the laws of Pennsylvania, and doing business.at Honesdale in that State, upon a promissory note made by defendant, a resident of this State, of which the following is a copy:</p> <p>“ §2,000. Middletown, ¡N. Y., Jcvrúy 20, 1875.</p> <p>“ Six months after date, for value received, I promise to pay to H C. Hand, cashier, or order, at the First ¡National Bank, Middletown, ¡N. Y., $2,000 without defalcation.</p> <p>“ H. R LOW.”</p> <p>The referee found, in substance, that at the request of defendant, made by him at Honesdale, the said note, except the signature, was written by the plaintiff’s cashier at Hones-dale, and was sent to Middletown, in ¡New York, by mail. Defendant signed it at Middletown and deposited it in the post-office there; addressed to the plaintiff at Honesdale, and it was received by the plaintiff through the mail. The note was delivered to plaintiff as an extension or in renewal of a previous note of $2,000, made by the defendant, which was held and owned by the plaintiff, and which, upon delivery of such renewal- note, was surrendered to the defendant by depositing the same in' the post-office at Hones-dale, addressed to the defendant at Middletown. Said extension or renewal was, at defendant’s request, made at Honesdale aforesaid and agreed to by plaintiff at said place. Plaintiff received from defendant, in consideration of such extension or renewal, the sum of $80, being at the rate of eight per cent per annum, which was paid by defendant to plaintiff by a check sent by the defendant by mail to the plaintiff, at Honesdale. The- previous $2,000 note was de1 livered by defendant to plaintiff in renewal of a balance of a $10,000 note, made by defendant. Both defendant, the maker, and the payee of the said $10,000 note, were then and still are residents of the State of Hew York. At the time of the delivery of that note to the payee there was no intention that the same should be discounted by the plaintiff in the State of Pennsylvania, and it was an accommodation note as between the defendant and payee, but was discounted by the plaintiff for value in the ordinary course of business. Under the laws of Pennsylvania plaintiff was authorized to discount notes at the rate of eight per cent.</p> <p>The contract in suit having had its legal inception in this State, and being one that was to be performed here, and having been sued here, should be governed by the law of this State. (Jewell v. Wright, 30 N. Y. 259; Dickinson v. Edwards, N . Y. Daily Reg., Oct. 20, 1879; Tilden v. Blair, 21 Wall. 241; Prov. Co. Sav. Bank v. Frost, 13 Nat. Bk. Reg. 356; Milne v. Moreton, 6 Bin. 365; Mactier's Admr. v. Frith, 6 Wend. 104; Kirkman v. Bank of America, 2 Cold. 397; Tayloe v. Merch. Fire Ins. Co., 9 How. [U. S.] 370; Eames v. Home Ins. Co., 18 Alb. L. J. 31; 7 Am. Law Rep. 454-456; White v. Corlies, 46 N. Y. 469; Howard v. Daly, 61 id. 362, 365; Hallock v. Ins. Co., 26 N. J. Law R. 268; Vassar v. Camp, 11 N. Y. 441; Trevor v. Wood, 33 id. 307.)</p> <p>The note in suit depended for its validity on the law of Pennsylvania, and whether usury was committed or not, and its effect if committed, must be considered in the light of the law of that State, and not of the law of this State. (Vassar v. Camp, 11 N. Y. 441; Trevor v. Wood, 36 id. 309; Howard v. Daly, 61 id. 365, 366; White v. Corlies, 46 id. 467; Mactier v. Frith, 6 Wend. 103; Waldron v. Ritchings, 9 Abb. [N. S.] 359; Dunlap v. Higgins, 1 H. L. C. 381; Evans v. Hicholson, 33 L. T. 778; Taylor v. Jones, 16 Eng. Rep. 437; Story on Conflict of Laws, §§ 237-242; Cutler v. Wright, 22 N. Y. 472; Davis v. Garr, 6 id. 134; Pomeroy v. Ainsworth, 22 Barb. 129; Potter v. Tallman, 35 id. 187; Hosford v. Nichols, 1 Paige, 220; Andrews v. Pond, 13 Peters, 78; Hanrick v. Andrews, 9 Port Royal, 9; Carnegie v. Morrison, 2 Metc. 401; Scott v. Pelkinton, 15 Abb. Pr. 284; Wayne Co. Sav. Bk. v. Low, 6 Abb. N. C. 93.) By relation, the note is carried back to the agreement under which it originated, for the test of its validity. (Yiner’s Abridgement, l£ Relation,” 290; Bouvier's Law Dict., “ Relation ; ” Hathaway v. Payne, 34 N. Y. 113; Tooley v. Dibble, 2 Hill, 641; Jackson v. Dickenson, 15 Johns. 315, 316; Heath v. Ross, 12 id. 140; Jackson v. Bard, 4 id. 234.) Interposing a note, payable in this State, as evidence of the extension, does not change the rule of law by which the plaintiff’s rights are to be governed. (Merchants' Bank v. Griswold, 72 N. Y. 481; Bank of Toledo v. Shaw, 61 id. 293; Lamusse v. Barker, 3 Wheat. 101, 146; Grant v. Healey, 3 Sumner, 523; Boyle v. Zacharie, 6 Peter, 635, 643, 644; Gibbs v. Fremont, 20 E. L. & E. 558.) The original §10,000 note took its incipiency as a contract in Pennsylvania, and the law applicable to, and the place of that contract, is determined by the place of such discount. (Cook v. Litchfield, 9 N. Y. 279; Lee v. Selleck, 33 id. 615; Hyde v. Goodnow, 3 id. 271; Tilden v. Blair, 21 Wall. 241.) The last renewal, even though payable in this State, stands upon the same footing, and its validity rests upon the foreign law. (Jackson v. Nichols, 5 N. Y. 183; Wayne Co. Sav. Bk. v. Low, 6 Abb. N. C. 95; National Bk. of Auburn v. Lewis, Ct. of App., Dec. 20, 1878.) The presumption of intention drawn from a designated place of payment becomes disputable, and, as a fact, is to be arrived at through acts and surrounding circumstances. (Greenl. on Ev. 33, 282; 2 Phillips [Cow. & Hill], 633, 634, mar. pag.; Ram on Facts, 9, 275; White's Bk. v. Miles, 73 N. Y. 337, 339; Field v. Munson, 47 id. 223; French v. Carhart, 1 id. 96; Phelps v. Bostwick, 22 Barb. 314; Hasbrook v. Paddock. 1 id. 638.)</p>

<p>Appeal from order of the General Term, of the Supreme Court, in the fourth judicial department, reversing a judgment in favor of defendant James R. Wilson, entered upon the report of a referee. (Reported below, 16 Hun, 530.)</p> <p>This action, was upon a bond, given by defendant Byron H. Wilson, as administrator of the estate of James Wilson, deceased. Defendant James B. Wilson, one of the sureties alone appeared and answered. J</p> <p>Letters of administration were issued to said Byron LI. Wilson, by the surrogate of the county of Steuben, in May, 1864, aud on the same day the bond was delivered to said surrogate. The condition of the bond was as follows :</p> <p>“ The condition of this obligation is such that if the above bounden Byron H. Wilson, administrator of all and singular, the goods, chattels and credits of James Wilson, late of Prattsburgh, deceased, shall faithfully execute the trust reposed in him as such; and, also, if the said Byron H. Wilson shall obey all the orders of the surrogate of the county of Ontario, or of the person charged by the constitution and laws with the performance of the duties of the office, or of any other officer or court having jurisdiction in the premises touching the administration of the estate committed to him; then the above obligation to be void, otherwise to remain in full force and virtue.”</p> <p>In November, 1864, said surrogate, upon the application of the sureties, removed said administrator and revoked his letters.</p> <p>Proceedings were instituted before the surrogate of Steuben county, by the plaintiff, in which said administrator was cited and required to render a full account of all his proceedings as such administrator; he did render an account, and on the 25th day of February, 1876, a final decree was made and> granted by the said surrogate, directing and requiring the said administrator to pay to the plaintiff $401.51, for her distributive share of the estate of the deceased, as one of his next of kin. A copy of such decree was served upon said Byron II., and a demand made upon him to pay as required, which he refused. The surrogate delivered to plaintiff a transfer of said decree, and the same was docketed in Ontario county, where the administrator then resided, and the same was docketed as a judgment. Execution was issued thereon and returned unsatisfied. The surrogate thereupon assigned and transferred said bond to the plaintiff, and authorized him to bring an action thereon.</p> <p>The defendant here (the surety) is not liable for failure of the administrator to obey the order of the surrogate of any county but the county of Ontario. (Getty v. Binssé, 49 N. Y. 385, 389; Lang v. Pike, 28 Ohio St. 488; Pickersgill v. Lahens, 15 Wall. 140, 144; Brandt on Guar., etc., § 393; Myers v. Parker, 6 Ohio St. 501.) Where the terms of the bond are certain, the liability of the surety cannot be extended by implication. (Dobbin v. Bradley, 17 Wend. 422, 425.) If there was a mistake in the bond, it cannot, in this action, be shown and corrected. (Brandt on Guar., § 118.) The surety becomes liable only when the administrator has failed to obey a lawful order of the surrogate to perform some specific duty. (Annett v. Kerr, 2 Robt. 563, 564, 565; People v. Corlies, 1 Sandf. S. C. 238, 243-5; Dayton on Surrogates, 577-582.) The words in the bond not required by the statute, being in excess of its requirements, are of no force, and the bond, as to them, is void pro lamió. (U. S. v. Bradley, 10 Peters, 343, 364; State of Ohio v. Findley, 10 Ohio, 51, 58; Hawes v. Marchant, 1 Curt. C. C. 136, 139, 140; Armstrong v. United States, Peters' C. C. 46; Hall v. Cushing, 9 Pick. 395, 403; U. S. v. Howell, 4 Wash. C. C. 620.) The sureties upon an administrator’s bond can only be made liable for disobedience of the administrator to lawful orders of the surrogate. (Annett v. Kerr, 2 Robt. 556; Redfield on Surr. Courts, 428.) So far as the decree goes beyond the jurisdiction of the surrogate, it is to be treated as void everywhere. (Gilliland v. Sellers' Adm'rs, 2 Ohio St. 223; Gossett v. Howard, 10 Q. B. 359 [59 E. C. L.]; 1 Smith's Lead. Cas. [11th ed.] 1100, 1101; People ex rel. Tweed v. Liscomb, 60 N. Y. 559, 568, 570, 571; Windsor v. Mc Veigh, 93 U. S. S. C. 274; Annett v. Kerr, supra; People v. Corlies, 1 Sandf. S. C. 228, 246; Attorney-General v. Lord Hotham, 1 Turn. & Russ, 209, 219.) The decree of the surrogate is void for the reason that no suecessor of the removed administrator was appointed before the accounting was had. (4 Edm. Stat. 493, § 36.)</p> <p>The bond, when delivered to the surrogate of Steuben county, and filed in his office, bound the obligors to obey the orders of the surrogate granting the letters of administration. (3 E. S. [6th ed.] 76, § 214; id. 82, § 56.) The bond was in form a sufficient compliance with the statute. The word “ Ontario ” was but surplusage, and did not, under all the circumstances, in any way affect or change the liability of the administrator, or the sureties thereon. (Farley, admr., v. McConnell, 52 N. Y. 630; 7 Lans. 428; Wiser v. Blackly, 1 Johns. Ch. 607; Board of Sup'rs v. Pindar, 3 Lans. 8; Village of Warren v. Phillips, 30 Barb. 646; Ring v. Gibbs, 26 Wend. 501; Foster v. Foster, 7 Paige, 48; Douglass v. Howland, 24 Wend. 35; Dayton v. Johnson, 69 N. Y. 419-425; Annette v. Terry, 35 id. 256; Casoni v. Jerome, 58 id. 315; Coleman v. Bean, 3 Keyes, 94.) Upon the strength of this bond the administrator having obtained the possession and control of all this estate, he and his sureties should be held liable on the bond, and not be allowed to escape by reason of technicalities alone. (Belloni v. Freeborn, 63 N. Y. 387; Russell v. Freer, 50 id. 67; Gates v. McKee, 2 Kern. 232; Wiser v. Blackly, 1 Johns. Ch. 607; Coleman v. Bean, 3 Keyes, 94; Springstead v. Lamson, 32 N. Y. 703; De Colyar on Guarantees, 202; Fell on Suretyship and Guarantees, 503; French v. Cathcart, 1 Comst. 96, 102; People v. Falconer, 2 Sandf. Sup. Ct. 81; Kelly v. McCormick, 28 N. Y. 318; Loaners' Bank v. Jacoby, 17 N. Y. Sup. Ct. 143; Wheaton v. Fay, 62 N. Y. 275.) The bond is but one contract, really, containing three conditions, and a breach of either condition is practically a breach of the whole, and the liability of the obligors attached. (Ring v. Gibbs, 26 Wend. 501; Dayton v. Johnson, 69 N. Y. 419; The People ex rel. Lent v. Hascall, 22 id. 188; Gottsberger v. Taylor, 19 id. 150; Belloni v. Freeborn, 63 id. 388.) The surrogate had jurisdiction to make the decree dated the 25th February, 1876. (3 R. S. [6th ed.] 99-104; Laws of 1837, chap. 360, § 36; Laws of 1862, chap. 220; Dubois v. Sands, 43 Barb. 412; Redfield on Surrogates, 365; Staats v. Hudson R. R. Co., Keyes, 196; Dwarris on Statutes [Potter's ed.], 155; Bowen v. Lease, 5 Hill, 225; Wallace v. Bassett, 41 Barb. 96; McCartee v. Orphan Asylum, 9 Cow. 437; Kingsland v. Palmer, 52 N. Y. 83; Evarts v. Evarts, 62 Barb. 577.) Plaintiff had a right to require the deposed administrator to render an account of his proceedings; and this gave to the surrogate jurisdiction over the parties and subject-matter; and the decree made by him, even if erroneous, is binding upon all parties, unless reversed on appeal or set aside, and cannot he attacked in a collateral action. (3 R. S. [6th ed.] 102, § 79; Richardson v. West, reported Alb. L. J., 15th May, 1880; Thayer v. Clark, 48 Barb. 243; 41 N. Y. 620; Dayton v. Johnson, 69 id. 419; Rose v. Lewis, 3 Lans. 320; Baggott v. Boulger, executrix, etc., 2 Duer, 160; Scofield v. Churchill, 72 N. Y. 565; Casoni v. Jerome, 58 id. 315; Roue v. Parsons, 6 Hun, 338; Hunt v. Hunt, 72 N. Y. 217; Lange v. Benedict, 73 id. 12; Roderigas, adm'r, v. E. R. Sav. Bank, 63 id. 466; Vanderpoel, receiver, v. Van Valkenberg, 2 Seld. 190; Annette v. Terry, 35 N. Y. 261.)</p>

(Reported below, 18 Hun, 134.) This action was brought by plaintiffs as judgment creditors of defendant William H. Breese, after return of execution unsatisfied, to reach certain real estate, the title to which was in defendant, Ellen Breese, wife of said William H., on the ground that the same was purchased and paid for by her husband, and conveyed to her in fraud of the rights of his creditors.

(Reported below, 13 J. & S. 197.) This action was brought against defendant as surety on a bond given by Charles B. Biker as receiver. In an action between copartners, said Biker was on July 7 appointed receiver of the partnership property, and as the complaint alleged, and was not denied in the answer, on that day “ entered upon the discharge of that trust.” On January 20, 1875, an order was granted, on application of creditors, requiring Biker to give a bond.

This action was brought by plaintiff as president of the Butterfield Despatch, a joint-stock company, to collect an assessment upon certain shares of the stock of the company owned by defendant. The material facts are set forth in the opinion. At common law joint-stock companies are not distinguishable from partnerships. The members are subject to all the liabilities and rules that affect partnerships.