Volume 82 — New York Reports

the court on trial at Special Term. (Reported below, 13 J. & S. 1.) On and before March 9, 1870, the defendants were bankers at the city of oNew York, having funds of plaintiffs on deposit. The plaintiffs wishing to invest in bond and mortgage, -one William 0. Barrett, their attorney, told them that he had arranged with Mrs. Margaret G. Halpine, that she should give her bond and - a mortgage for a loan of $17,500.

(Reported below, 20 Hun, 292.) The nature of the action and the material facts appear in the opinion. If mutual rights of á present action or a present set-off do not exist, an assignee takes a claim, free and clear of a set-off and none can attach afterward his hands.

<p>The refusal of an arbitrator to hear testimony, which is pertinent and material, is sufficient misconduct to authorize the setting aside of his award, although lie may think he has sufficient other evidence.</p> <p>The construction by arbitrators of the submission to them is not conclusive; it is for the court to determine whether they have exceeded their powers or refused to exercise them.</p> <p>The general rule that their decisions are not reviewable on the mere ground that they are erroneous applies only to their decisions on matters submitted to them.</p> <p>A submission by the parties hereto to arbitrators in the usual form contained this clause: “ The arbitration shall be conducted and decided upon the principle of fair and honorable dealing between man and man.” Held, that this did not justify a decision of the arbitrators that the submission limited them to passing upon the statements of the parties only. The statements presented by the parties were conflicting ; plaintiff insisted upon calling witnesses in his behalf to disprove defendant’s statements, and named two witnesses whom he offered to produce. A majority of the arbitrators refused him permission and refused to receive any evidence other than the statements, basing their refusal upon the ground that under the submission their powers were limited to the statements. Held, that it was not necessary for plaintiff, in order to preserve his rights, to produce or name his witnesses, or to state what facts he intended to prove by them; and that the refusal was misconduct which vitiated the award.</p>

<p>The record of an assignment of a mortgage is constructive notice to all persons of the rights of the assignee, as against any subsequent acts of the mortgagee affecting the mortgage; it protects as well against an unauthorized discharge as against a subsequent assignment by the mortgagee.</p> <p>It is not required, in order to make it the duty of a county clerk to record an assignment of a mortgage, that it should contain a statement of the place of record of the mortgage, or a description of the lands mortgaged; it is sufficient if it so identifies the mortgage that by examining the records the one referred to can be ascertained.</p> <p>It is not imposed by statute as a duty upon the county clerk to note an assignment upon the margin of the record of a mortgage, and his omission so to do does not affect the rights of the assignee.</p> <p>Moore v. Sloan (50 Barb. 443), overruled.</p> <p>Defendant D. executed to V. a mortgage for $1,200, which the latter assigned to plaintiff; the assignment gave the date of the mortgage, the name of the mortgagor and mortgagee, and covenanted that there was due thereon $1,200; the assignment was recorded, but the clerk did not minute on the margin of the record of the mortgage the fact of the assignment; there was no other mortgage of D. bearing the same date. V. thereafter, without authority, executed a discharge of the mortgage, which was recorded. L., a subsequent grantee of the premises, executed a mortgage thereon to H., both having actual knowledge at the time that such discharge was fraudulent; H. assigned said mortgage to defendant J., who, in an action to foreclose plaintiff’s mortgage, claimed his to be the prior lien. Held, untenable; that the assignment to plaintiff was sufficient to identify the mortgage, and his rights under it were not affected by the fraudulent discharge, as against any one claiming a right under it; that J., by his assignment, gained no other or greater right than his assignor had at the date of the assignment, as against plaintiff’s mortgage; and as H. had knowledge of plaintiff’s rights, he took his mortgage subject thereto and so transferred it.</p> <p>The mortgage from L. to H. was made without consideration, for the accommodation of the former, and it had no inception until purchased by J. Held, that this did not change the position of J. or transform the character of his holding from that of assignee to that of mortgagee; also, held, that plaintiff was not estopped from enforcing his mortgage, as against J. by the fact that after he had knowledge of the fraudulent discharge he took no steps within a reasonable time to correct the record.</p> <p>Viele v. Judson (15 Hun, 328), reversed.</p> <p>Costello v. Mead (55 How. 356), overruled.</p> <p>Cornish v. Abington (4 H. & H. 550), Horn v. Cole (51 N. H. 287), Stevens v. Dennett (51 id. 324), Gregg v. Von Phut (1 Wall. 280), Hill v. Hpley (31 Penn. St. 331), Chapman v. Chapman (59 id. 214), Pickard v. Sears (6 A. & E. 469), Gregg v. Wells (10 id. 91), Niven v. Belknap (2 Johns. 573), distinguished.</p> <p>To sustain an estoppel becaus of omission to speak, there must be both the specific opportunity and the apparent duty to speak; the party maintaining silence must have known that some one was relying thereon, and was either acting or about to act as he would not have done had the truth been told.</p>

(Reported below, 7 Daly, 513.) .The nature of the action and the facts are set forth sufficiently in the opinion. The court erred in excluding the testimony of the witness as to the handwriting of Elizabeth Saunders, on the ground that it had not been shown he had ever seen her write her signature, or had ever received any letters signed by her, or had shown in any way that he was acquainted with her signature. (Cowen & Hill’s Notes to' 1 Phil.

The nature of the action and the facts are set forth sufficiently in the opinion. Acceptance of the work by the defendants after the trial provided for in the contract is conclusive evidence of the plaintiff’s performance.

<p>These were cross-appeals. The defendants, Cary and others appealed from judgment of the General Term of the Supreme Court, in the first judicial department, affirming, as to ,them, a judgment in favor of plaintiff entered upon a verdict, and affirming an order denying a motion for a new trial. The plaintiff appealed from an order of said General Term reversing its judgment as to defendant Smith, and granting a new trial.</p> <p>The nature of the action and the facts appear sufficiently in the opinion.</p> <p>To establish a prima facie case of negligence, it is not sufficient for the plaintiff to prove that.he has suffered a loss by some event which has happened by the act or omission of the defendant. He must also prove that the defendant, in such act or omission, violated a duty resting on him. (Sheldon v. The H. R. R. Co., 14 N. Y. 218-224; Losee v. Buchanan, 51 id. 476, 489; Curtis v. Rochester & Syr. R. Co., 18 id. 534; Cleveland v. N. J. Steamboat Co., 68 id. 366; Weitner v. Del. & Hud. C. Co., 4 Robt. 234; Shearman & Redfield on Negligence, §§ 12 and 429.) Trustees are not liable for loss resulting from errors of judgment made in the discharge of their duties. (Scott v. De Peyster, 1 Edw. Ch. 513; Spering's Appeal, 71 Penn. St. 11; Miller v. Proctor, 20 Ohio St. 442; Gould v. Branch Bk. of Mobile, 11 Ala. 191; Hodges v. N. E. Screw Co., 1 R. I. 312; Harmon v. Tappenden, 1 East, 555; Overend v. Gurney, 4 Ch. App. 701; Green’s Brice’s Ultra Vires, note, 407, 408 ; Overend v. Gibb, 5 H. of L. R. 480, 494; Field on Corp. 183, 184, 186; Angell & Ames on Corp., § 314; Hinley v. Merriman, 39 Tex. 56, 62; Ellig v. Naglee, 9 Cal. 683, 695; Salter v. Salter, 6 Bush [Ky.], 638; Cross v. Petree, 10 B. Monroe, 413; Perry on Trusts, § 276; Thompson v. Brown, 4 Johns. Ch. 619, 627; Knight v. Earl of Plymouth, 3 Atk. 480; Dickens, 120; Manhattan Bk. v. Lydig, 4 Johns. 347; Clark v. Anderson, 13 Bush [Ky.], 111-117; Griffith v. Follett, 20 Barb. 620, 634; Kavanagh v. City of Brookyn, 38 id. 237; Yanderheyden v. Young, 11 Johns. 150, 157, *158; Williams v. Weaver, 75 N. Y. 30, 33; Lange v. Benedict, 73 id. 12; Hawley v. James, 5 Paige’s Ch. 318; Perry on Trusts, § 511; Tiffany & Bullard on Trusts and Trustees, 739; Lewin on Trusts, *338, 449 et seg.; Hill, on Trustees, *488, 764; Roosevelt v. Roosevelt, 64 N. Y. 651; 6 Hun, 35, 42, 43.) The court erred in charging that as defendants, as trustees, acted gratuitously, that did not in any way diminish or affect their liability, and also in excluding the evidence offered to show that the trustees received no compensation. (Litchfield v. White, 7 N. Y. 438, 444; Story’s Equity Jurisprudence, § 1268; First Nat. Bk. v. The Ocean, Nat. Bk., 60 N. Y. 278-294; 2 Leading Cases in Equity, Part 1, p. 228; Clark v. Anderson, 10 Bush [Ky.], 108.)</p> <p>Agents, directors or trustees are liable to their principals when they do acts outside of their .instructions or powers, or when acting within their powers they are careless and negligent. (Ackerman v. Emott, 4 Barb. 626, 645, 646; Cloud v. Bond, 3 Mylne & Craig, 490, 496; Ringold v. Ringold, 1 Harris & Gill [Md.], 25; King v. Talbot, 40 N. Y. 76; Overend v. Gibbs, L. R., 5 Eng. and Irish App. 480, 494; Spering’s Appeal, 71 Penn. St. 11.) That the trustees acted gratuitously does not relieve them from liability. (Charitable Corporation v. Sutton, 2 Atk. 405; Litchfield v. White, 3 Sandf. 551; Donaldson v. Holdane, 7 Cl. & Fin. 771; Thorne v. Deas, 4 Johns. 84, 96, 97; Spering's Appeal, 71 Penn. St. 11, 21; Giblin v. McMullen, L. R., 2 Privy Council Cases, 318, 337; First Nat. Bk. v. Ocean, Bk., 60 N. Y. 295; Grill v. R. R. Co., L. R., 1 C. P. 612; Beal v. R. R. Co., 3 Hurlst. & Colt. 341; Nolton v. R. R. Co., 15 N. Y. 449; Wilson v. Brett, 11 M. & W. 113, 115.) Where trustees invest illegally, the theory of the law is that they are using their own money, and they are bound to restore the money of their cestui gue trust, in solido. (Adair v. Brimmer, 74 N. Y. 553; London & Birmingham R. R. Co., 5 De Gex & Smales, 414.) A trustee may not escape responsibility by simply staying away from meetings, or may not acquiesce with impunity because an act has been done. (Arthur v. Griswold, 54 N. Y. 400-406; Land Credit Co. v. Fermoy, L. R., 8 Equity, 11, 12; Bk. Com’rs v. Bk. of Buffalo, 6 Paige, 503; Angell & Ames on Corp., § 312; Robinson v. Smith, 3 Paige, 232; Scott v. Depeyster, 1 Edw. Ch. 513; Butts v. Wood, 38 Barb. 189; Bliss v. Matteson, 45 N. Y. 26; Van Houten v. First Church,, 17 N. J. Eq. 132; 3 R. S. [N. Y., 6th ed.] 747, § 46; Ex parte Brown, 19 Beav. 104; Robinson v. Beall, 20 Ga. 303, 304; Soc. of Shakers v. Underwood, 9 Bush [Ky.], 621; Gillet v. Phillips, 13 N. Y. 117; Lefevre v. Lefevre, 30 id. 31; Marsh v. Savings Fund, 5 Phila. 31; Weetjen v. Vibbard, 5 Hun, 265, 267; McCubbin v. Cromwell, 7 Gill. & Johns. [Md.] 168; Laroe v. Douglas, 13 N. J. Ch. ; 2 Beasley, 308, 312, 313; 2 Story’s Eq., §§ 1275, 1280, 1283; Crane v. Hearn, 26 N. J. Eq. ; 11 C. E. Green, 378; Oliver v. Court, 8 Price, 166; Liquidators, etc., v. Douglas, 11 Sessions Cases [3d series], 11, 12; Lingard v. Bromley, 1 Vesey & Beame, 117.) The general rule that trustees are not liable for the acts and defaults of co-trustees has no application here. (Brice v. Stokes, 11 Vesey, 324; Townley v. Sherborne, Cro. Car. 312; Joy y. Campbell, 1 Sch. & Lef. 341; Monell v. Monell, 5 Johns. Ch. 295; Williams v. Nixon, 2 Beav. 472; White & Tudor’s Leading Cases in Equity [4th Am. ed., Hare & Wallace’s notes], 1794.) Although a trustee under a will, or an executor, who does not receive the money, or assume any control over it, is not responsible, yet if he knows, or has reason to know, that his co-trustee is using it improperly, or that it has “got into a course of abuse,” he is liable if he fails to interpose. (Brice v. Stokes, 11 Vesey, 319; 327; Adair v. Brimmer, 74 N. Y. 539, 541, 566; Clark v. Clark, 8 Paige, 153; Mucklow v. Fuller, Jacob, 198, 199, 201; Lincoln v. Wright, 4 Beav. 427, 430; Williams v. Nixon, 2 id. 472 ; 2 Story’s Eq. Jur., § 1280a; Booth v. Booth, 1 Beav. 125, 129; Thompson v. Finch, 22 id. 316, 326, 327; Stiles v. Guy, 1 Hall & T. 330.) It is not enough to exonerate Mr. Smith for him simply to show that he was not present at the meeting of the directors and that he only knew it after the purchase was made. (Land Credit Co. v. Lord Fermoy, L. R., 8 Eq. 12; L. R., 5 Ch. Appeals, 753, 765, 769, 771; Power v. O' Connor, 19 Weekly Rep. 923, 926; Lockwood v. Reilly, 1 De Gex & Jones, 464, 476; Sherman v. Parish, 53 N. Y. 489.) The discharges in bankruptcy of Gearty and Hoffman were not bars to this action. (§§ 5067, 5071, 5115, 5119, U. S. E. S. [2d ed. 1878]; Zinn v. Ritterman, 2 Abb. [N. S.] 261, 263; Kellogg v. Schuyler, 2 Denio, 73; Crouch v. Gridley, 6 Hill, 250; Hodges v. Chase, 2 Wend. 248; Strong v. White, 9 Johns. 288; 14 id. 128; Re Rosey, 8 B. 509, and Re Vetterlein, 13 Blatchf. 44; Re Baxter, 18 N. B. R. ; Liquidators, etc., v. Douglas, 22; Session Cases [2d series], 476, 477; Hart v. Story, 1 Johns. 143; Steinbach v. Hallett, id. 141; Wheaton v. McGlade, 1 Wend. 34; Arnoux v. Steinbrenner, 1 Paige, 82; Reeder v. Seelye, 4 Cow. 548; Phoenix v. Hill, 3 Johns. 249; St. John v. Dennison, 9 How. 345.)</p>

(Reported below, 20 Hun, 150.) The facts sufficiently appear in the opinion. In auditing the relator’s bill it was not the duty of the board to particularly specify the items allowed or disallowed. ■ (1 R. S. 835, § 48 [5th' ed.] ; People ex rel. Johnson v. Board of Supervisors of Del. Co., 45 N. Y. 196.) After the board has audited a bill a mandamus will not issue to control or correct its action.

This action was brought to recover for services alleged to have been rendered by plaintiff as attorney and counsel. In 1855 Richard Beckwith, defendant’s intestate, upon inquisition in proceedings de limatioo was adjudged a lunatic and a committee of his person and estate was appointed. In 1871 . the plaintiff made application in behalf of Beckwith that the inquisition be superseded and the committee discharged; the application was denied.

(Be-ported below, 20 Hun, 285.) The motion was made on behalf of Simon Weil and others, composing the firm of Weil Brothers, who claimed as subsequent attaching creditors. The material facts appear in the opinion. The levy in this case was an actual satisfaction of the judgment and would bar a subsequent lienor from moving against the attachment. (Code of Civil Proe., § 628; Hayden v. Agent of Auburn State Prison, 1 Sandf. Ch. 195; Troup v. Wood, 4 Johns.

West-lake, as general .guardian of the persons and estates of Maude and Mabel Hubbard, infants ; the order of General Term appointed the respondent, Charles A. Hubbard, as such guardian. The facts are sufficiently set forth in the opinion. The court erred in directing the appointment of a non-resident as guardian. (76 Ill. 411; Wend. Note, 13; 1 Black. Com. 163; Forsyth’s Custody of Infants, 135; 25 Wend. 103, 104; Willard’s Eq. Jur. 619, 620; In re O'Neal, 3 Am.

<p>Under the provision of the State Constitution (art. 3, § 18) prohibiting the construction of a street railroad without the consent of a specified portion o'f adjacent property owners, or in lieu thereof a determination of commissioners appointed by the General Term of the Supreme Court, that such railroad ought to be constructed and a confirmation thereof by the court, the determination of commissioners is inoperative until so confirmed. The General Term has not a mere formal function ; and, while the proceeding before it, is in the nature of an appeal, it has original jurisdiction so far that it has the power and it is its duty to review the whole case and to pass upon the sufficiency of the facts to warrant the determination, and it is within the discretion of said court whether or not to confirm the commissioners’ report.</p> <p>The exercise of this discretion is not reviewable here.</p> <p>It seems that where an order of General Term in such proceedings refusing to confirm the report of commissioners does not state whether it was made upon questions of law or fact it is to be presumed that the court examined and passed upon the questions of fact as well as those of law.</p> <p>Brnmet v. Hoyt (17 Wend. 416); Merritt v. Thompson (27 N. Y. 233); Barrett v. Wilson (1 C. M. & R. 586); Baton v. Benton (2 Hill, 576); Wakeman v. Price (3 N. Y. 334); Thurber v. Townsend (22 id. 518); Starr v. Trustees of Rochester (6 Wend. 566); Uegina v. Stock (8 Ad.& Ell. 405); LoweU v. Oha/rwpion (6 id. 410), distinguished.</p>

This action, was brought to recover for services alleged to have been performed by plaintiff and his wife in caring for and nursing James Hill, defendants’ testator, during his lifetime. The case, upon a former appeal, is reported in 64 H. T. 589. The facts, so far as material, are set forth in the opinion.

(Reported below, 7 Daly, 531.) This action was brought to recover damages for the alleged failure of defendant to perform a contract. On January 11, 1871, the parties entered into a contract by which the plaintiff, Sarah James, in consideration of one dollar, agreed “ to sell and convey, or cause to be conveyed,” as there- • inafter stated, to the defendant, four lots of land in the city of New York, for the sum of $11,000 for each lot.

(Eeported below, 18 Hun, 190.) This action was brought upon an undertaking executed by defendants to discharge an attachment issued in an action brought by Solomon Stein and another against Dearborn B. McCrillis. The undertaking was in the form prescribed by the Code of Civil Procedure (§ 668), conditioned that the attachment debtor would pay on demand the amount of any judgment recovered against him in said action, not exceeding a sum specified.

(Reported below, 13 J. & S. 205.) The nature of the action and the facts appear sufficiently in the opinion. If it appeared that defendant had obtained the property of plaintiff without consideration and tortiously, a recovery could be had although a conspiracy was alleged in the complaint; proof thereof was not essential. (Hutchins v. Hutchins, 7 Hill, 104; Savarty v. Vanarsdale, 65 Penn.

(Mem. of decision below, 16 Hun, 591.) This action was upon a bond executed by defendant, as surety for one Davis, the condition of which and the material facts are set forth substantially in the opinion. Plaintiff having concealed from defendant the fact that his principal was in default when the bond was executed, is not entitled to recover.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, reversing an order of Special Term which vacated an assessment upon certain lots of the petitioner, for regulating, grading, etc., the eastern boulevard in the city of New York. (Reported below, 20 Hun, 530.)</p> <p>The work was done by the department of public works, under chapter 528, Laws of 1873. No proposals were advertised for, and no contract for the work let, but it was done by day’s work.</p> <p>The work should have been done by contract founded on sealed bids or proposals, after advertisements pursuant to section 91 of the charter of 1873, chap. 335. (Matter of the Emigrant Industrial Sav. Bk., 75 N. Y. 388.) Nothing else than the entire work authorized by the legislature can constitute a local improvement, or any improvement, or justify any tax. (People ex rel. Williams v. Haines, 49 N. Y. 587.)</p> <p>There was no obligation upon the commissioner of public works to do the work by contract. (Laws 1873, chap. 528; id., chap. 335, § 73; Laws 1870, chap. 626; Laws ,1866, chap. 367, § 4; Astor v. Mayor, etc., 62 N. Y. 576.) Municipal officers, in the absence of specific restrictions as to the mode of doing work, may pursue any mode in their discretion. wisest. (Kingsley v. Brooklyn, 7 Abb. N. C. 42; Greene v. The Mayor, 60 N. Y. 303.) There was no obligation upon the board of assessors to wait for the entire work to be completed before laying an assessment, nor to include the entire expense in one assessment list. (In the Matter of Dugro, 50 N. Y. 513; In the Matter of Ellsworth, 53 id. 64; Manice v. The Mayor, 8 id. 120; Matter of Ingraham, 64 id. 310.) The board of assessors having determined the benefit derived by the petitioner from the improvement for which the assessment was laid, it is not subject to review in this proceeding. (Matter of McCormick, 10 Abb. [N. S.] 234; Matter of Eager, 58 Barb. 560; S. C., 46 N. Y. 100; In re Ingraham, 4 Hun, 500; Phillips v. The Mayor, 2 id. 215; In re Anderson, 60 N. Y. 457; Matter of Burke, 62 id. 228; Matter of Astor, id. 576, 587; In re Ingraham, 64 id. 311; Matter of Bassford, 50 id. 511; Matter of Orphan Asylum, 70 id. 476; Matter of Williamson, 3 Hun, 65.)</p>

Where a uniform course has been adopted by public officers in interpreting a law, it should be assumed that that course is proper. (People ex rel. Williams v. Dayton, 55 N. Y. 367; Story on Const., § 408; Cooley’s Const. Lim. 67.) The petition for the vacation of the assessment should have been denied, because of the loches of the petitioner before instituting these proceedings.

<p>Plaintiffs, on the 6th of November, 1868, wrote to S. of the firm of S. & Co., of which firm defendant was a member, stating that they understood S. & Co. had “ a lien,” etc., on the mills of the IT. S. W. Co.'; that said company was offering to buy of them on credit, and inquiring as to its “ ability to pay.” Defendant answered under date of November 7, 1868, stating that said company consigned all its goods to them, for which they had a ready sale, sometimes on orders largely ahead of the production ; that so far as they could judge, it had made money; that they could only form an opinion as to its management from the period they had been in connection with it; that it had nothing to conceal and would no doubt fairly answer all plaintiffs’ inquiries. In an action to recover damages for alleged fraudulent representations and concealments, it appeared that S. & Co., at the time the answer was written, had a chattel mortgage for $300,000 on the personal property of said company, which was on record; also a mortgage on its real estate. Nothing was said of this, and defendant testified that the omission was because the mortgage was on record and, therefore, was intentional. He did not admit, however, that it was with any wrong intent. Held, that the evidence did not warrant a finding of "a fraudulent suppression; that from the terms of the letter of inquiry, defendant might reasonably assume that the object was not to elicit information as to the “ lien,” etc., of the existence of which plaintiffs were aware.</p> <p>Up to August, 1867, the U. S. W. Co. had consigned its goods to another firm. On that day the account and the goods on hand were transferred to S. & Co. It appeared that most of the old goods transferred depreciated in value and were sold below invoice prices. The market for woolen goods was a declining one from August, 1867, to the date of the letter, but for a few months prior to that date, good styles of goods were selling very well. The company changed from old to new styles, when the business went into the hands of S. & Co., and it was manufacturing good styles in large quantities, which sold well and freely in 1868, previous to November, and about twenty per cent of the goods were sold on orders in advance of production. Defendant admitted in December, 1870, that they were not making money in the woolen department. Held, that the representations in the letter in question, coupled as they were with a disclaimer of knowledge save during the period of the business connection between said company and defendant’s firm, and with the suggestion that inquiries should be made of the company, would hardly justify a reliance on the letter as a recommendation; but that the evidence failed to show the falsity of the representations, or that it was written in bad faith; that it could not fairly be deemed to apply to the old transactions of the company or the old goods, and only spoke as of its date, not as to subsequent transactions.</p> <p>Also held, that as the statements were not shown to have been untrue, it was immaterial what became of the property of the company, or whether defendant had falsely recommended the company to other parties..</p>

This action was brought to foreclose a mortgage. Defendant Lott was the holder of a junior mortgage, and upon affidavits showing his interest, and an offer to pay the amount of plaintiff’s mortgage with costs, and a refusal thereof, moved before judgment for an order requiring plaintiff to assign his mortgage, etc. The order directed that upon the payment by Lott, or by such person as he should name, of the amount due on the mortgage? with costs, the said Lott should be…

Eldridge from his office as attorney and counselor, and forbidding him from practicing law for three years, on account of alleged professional misconduct. The facts appear sufficiently in the opinion. The affidavits and papers upon which the proceedings were instituted are not evidence upon the issues. Upon the trial of the issues the common-law rules of evidence must be observed. (People v. Cooper, Ct. App. MS.; 1 Roscoe’s Cr. Ev. 773; Benedict’s Civil and Crim.

Appeals by certain policy and annuity bondholders from order of the G-eneral Term of the Supreme Court in the third judicial department, affirming an order of Special Term, granted on the coming in of the report of a referee appointed to take proof of claims against defendant, The ISTorth America Life Insurance Company. The nature of the orders and the facts appear sufficiently in the opinion.

<p>Appeal from order of the General Term of'the Supreme Court in the second judicial department, affirming an order of Special Term, appointing commissioners under the act chapter 347, Laws of 1866, as amended by chapter 85, Laws of 1879, to appraise the compensation to be paid to owners of lands and water rights, to be taken for the purposes of said acts.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>The act of 1866 (chap. 347) is unconstitutional and void, because it is a local act, and more than one subject is expressed in its title and in the act itself. (People v. O'Brien, 38 N. Y. 193; People v. Suprs. C. Co., 43 id. 11; People v. Hills, 35 id. 449.) The statute is one that must be literally construed and complied with before the court can acquire jurisdiction, as it is in derogation of private right. (R. & S. R. R. v. Davis, 43 N. Y. 137; Matter of Marsh, 71 id. 315.) This proceeding cannot be maintained until all the owners have been brought in, and effort made to agree with them upon compensation. (Potter’s Dwarris on Statutes, 396; Taylor v. Porter, 4 Hill, 140; Westervelt v. Gregg, 12 N. Y. 202 ; Happy v. Mosher, 48 id. 313 ; Stuart v. Palmer, 74 id. 183.) The Constitution itself provides for the appointment of commissioners, and the legislature can only provide for their appointment for the purposes and under the circumstances established by the Constitution. (Rochester W. Works v. Wood, 41 How. 53 ; Constitution, art. 1, § 7.) That provision of section 4 of chapter 347, Laws of 1866, which provides that the court, on appeal from the award of the commissioners, may “ increase or diminish the amount of compensation” is unconstitutional. (Constitution, art. 1, § 7; Roch. W. Works v. Wood, 41 How. 53.) The act is unconstitutional, because it makes no provision for notice of the application to appoint commissioners. (Stuart v. Palmer, 74 N. Y. 183.)</p> <p>The act creating the corporation of “the village of Middletown,” and the acts amendatory thereof are not unconstitutional, under section 16 of article 3 of the Constitution of the State of Hew York. (People ex rel. City of Rochester v. Briggs, 50 N. Y. 553 ; Kerrigan v. Force, 68 id. 381; People ex rel. v. Brinkerhoff, id. 259 ; Matter of P. & C. I. R. R. Co., 67 id. 371; People ex rel. v. Banks, id. 568; People ex rel. v. Dunlap, 66 id. 162 ; Sun M. Ins. Co. v. Mayor, 8 id. 241; Matter of Van Antwerp, 56 id. 261; People v. Lawrence, 36 Barb. 177; People v. B. & F. Plankroad Co., 27 Barb. 445 ; De Camp v. Eveland, 19 id. 81; Mosier v. Hilton, 15 id. 657; Grenton v. Griffin, 4 Abb. Pr. [N. S.] 310 ; People v. Trustees of Dansville, 1 Hun, 593.) As the title of the act of 1866 states it is an act to amend the charter, it is not material that it mentions some of the particulars contained in the act and omits others. (People ex rel. Faulkner v. Trustees, 1 Hun, 593.) The Constitution does not require a full declaration and statement of all that was to be accomplished by the proposed act in the title of a private or local bill. (People ex rel. Com. v. Banks, 67 N. Y. 568.) The acts of 1866 (chap. 347) and of 1879 (chap. 85) are not unconstitutional upon the ground that they authorize the taking of private property. (50 N. Y. 553; 2 Black. Com. 14, 18.) The petition is well executed, though it does not embody a resolution of the board of trustees authorizing its presentation. (Mad. Ave. Bap. Ch. v. Bap. Ch. in Oliver St., 46 N. Y. 131; Matter of St. Ann's Church, 23 How. Pr. 285; Matter of Sec. Bap. Soc. in Canaan, 20 How. Pr. 285; South Bap. Soc. v. Clapp, 18 Barb. 35.) Ho undertaking having been filed on this appeal, as required by sections 1326 and 1334 of the Code of Civil Procedure, the appeal is ineffectual for any purpose and cannot be entertained by this' court. (Raymond v. Raymond, 76 N. Y. 106 ; N. Y. Weekly Dig. 149.)</p>

This action was brought to set aside an assessment upon premises of plaintiffs for repairs upon a street in the city of Buffalo, known as the Hamburgh Turnpike.” The facts appear sufficiently in the opinion. This action can be maintained. (Scott v. Onderdonk, 14 N. Y. 9; Lewis v. Buffalo, 29 How.

<p>The P. C. & F. D. M. E. E. Co. was incorporated by the legislature of Missouri in 1860 ; by its charter the County Court of any county through which the road was located, and any city or town, were authorized to subscribe for stock, and to issue bonds to pay therefor; by another section (§ 7) a provision is made for taking a vote of the taxable inhabitants of a strip of country on either side of the road, and if a majority vote in favor of a tax to pay for stock, it is made the duty of the court to levy and collect the tax. Held, that the charter gave no authority to the taxable inhabitants of a strip of country alon'g the road to vote for the issue of bonds, or for an issue of bonds upon a vote in favor of subscribing for stock, but only authorized the levy and collection of a special tax to pay for stock.</p> <p>A new Constitution was adopted by said State in 1865, which prohibited the general assembly from authorizing any county, city or town from becoming a stockholder in, or loaning its credit to any company, unless two-thirds of the qualified voters should assent thereto (art. 11, § 14), but it was provided (art. 11, § 8) that all statute laws then in force not inconsistent with the Constitution should continue in force. In 1868 an act was passed by the legislature of said State authorizing the subscription for stock of a railroad company upon a vote of two-thirds of the qualified voters, at an election for that purpose, in favor thereof, and an issue of bonds in payment. In July, 1869, in proceedings under the said charter, an election was ordered in a strip of land described as “ part of the municipal township of Greene; ” the election' was held August 17, 1869, at O. P., in the district described, and a majority voting at the election voted in favor of a tax; this vote was subsequently declared by the County Court to be a nullity. In .1870 an act was passed amending the act of 1868 ; it contained a provision (§ 7) declaring that in all cases where by the provisions of the charter of any railroad company the “taxable inhabitants” of any portion of any municipal township had or might thereafter vote to take stock, they should have all the privileges conferred by the act of 1868 upon counties or townships, and the same ■ power and duty was given and imposed upon the County Court to issue bonds, etc., to be paid, however, by tax upon the districts voting. Thereupon, and in 1871, the County Court of the county including said township of Greene granted an order reciting the election so held, and directing the issuing of county bonds; bonds were accordingly issued. In an action to recover the amount of certain coupons to said bonds, held, that the act of 1870 did not legalize the vote at such election; that said provision of the act, if it authorized the issue of bonds in such cases, was in contravention of the State Constitution; that the constitutional provision continuing in.force acts not inconsistent did not apply, as no law then existed authorizing the issue ; that, therefore, the issuing of said bonds was unlawful, and the bonds were void.</p> <p>Smith v. Gla/rk Gounty (54 Mo. 58), State v. Greene Gounty (id. 540), distinguished.</p> <p>The bonds recited that they were issued in pursuance of a vote of the taxable inhabitants at C. P., held August 17, 1869, and that for the payment thereof special taxes would be levied “ on the real estate lying in the district voting at such election.” Held, that the county was not estopped by the recitals from alleging the invalidity of the bonds ; that said recitals did not import that the bonds were legally issued, but on the contrary, that they were issued without authority.</p> <p>Hodge v. Gounty of Platte (16 Hun, 285), reversed.</p>

The material facts appear in the opinion. The mere possession of stolen goods is evidence prima facie of neither stealing nor receiving. (Roscoe’s Crim. Ev. 92, 817; People v. Knickerbocker, 43 N. Y. 177; 2 Bishop’s Grim. Proc., chap. 47, § 988.) The presumption arising from the possession of stolen property is, that the party stole the property, not that he received it. (Roscoe’s Crim.

The indictment charged and the proof established the commission of the burglary, at City Island, in the county of Westchester, the stealing of certain property and the bringing of the same by the prisoner into the county of Hew York. There could be no conviction of the crime of burglary, it having been committed in another county than the one in which the trial was had. (3 E. S. [6th ed.] 1021, § 50; 1 Hale’s P. C. 507, 536; 2 id. 163; 2 East’s P. C. 771; 1 Hawk.

Zabriskie to a satisfaction-piece of a mortgage held by her, by means of false pretenses. (Reported below, 20 Hun, 55.) The facts material to the questions discussed appear in the opinion. The prosecutrix was bound, in order to establish guilt, to show that she was influenced by the alleged false pretenses.

<p>Under the provision of the New York charter of 1870 (§ 20, chap. 137, Laws of 1870), declaring that no vote shall he taken ,in either board of the common council upon the passage of a resolution or ordinance contemplating a specific improvement, or laying a tax or assessment until after notice shall be published at least three days, each board, separate and independent of the other, must cause notice of the introduction of a resolution into its own body to be published for three days before final action thereon ; a publication by one- board will not suffice.</p> <p>In re De Pierris (20 Hun, 305), reversed.</p>

” The relator was appointed engineer in August, 1875, by the commissioner of public works. The incumbent of that office was required by the commissioner to exercise, and did exercise, general supervision over all the work carried on under the immediate supervision of the bureau of street improvements, and he certified to the correctness of vouchers for payment therefor.

This action was brought to foreclose a mortgage upon premises situate in the city of New York; the venue was laid in the city and county of New York.

(Mem. of decision below, 20 Hun, 400.) This was an action for divorce a mensa et thora. An order was made therein directing the payment of a sum of money for alimony and counsel fees.

(Beported below, 15 Hun, 600.) This action was brought to restrain defendants from obstructing or interfering with a right of way claimed by plaintiff over defendants’ premises. The facts upon which depend plaintiffs right to the way are set forth sufficiently in the opinion. The trial court found in addition thereto that defendants were making excavations and constructing a building across and over the way claimed, and were thereby obstructing and closing it.

This action was brought in 1874, upon a promissory note for $1,000, dated April 13, 1868, and also upon a contract bearing the same date, executed by defendant, by which he agreed to pay plaintiff $5,000, “ out of any moneys or property ” which should be received by him from the sale or license of certain patented inventions, being improvements in harvesters, the same to be paid by defendant as fast as received. • The action has been twice tried; upon the first trial the…

(Reported below, 18 Hun, .4.) The relator, as a tax payer of said town, made application for the writ for the purpose of reviewing the proceedings of the defendant in including in the annual tax-roll of the town of Flushing items for the payment of interest and an installment of principal falling due on bonds of the town, issued under authority of defendant to pay for the improvement of a highway in said town.

(Reported below, 18 Hun, 146.) The nature of the action and the facts are set forth sufficiently in the opinion.

Livingston and another, asking for an order directing the receiver of defendant to pay a quarter’s installment of rent falling due May 1, 1879, under a lease from them to defendant. The petitioners executed to defendant, a corporation organized under the laws of this State, a lease of certain premises in Rew York city, for five years, from May 1, 1876, at an annual rent of $12,000, payable quarterly.

<p>An assessment for paving and grading a street in the city of New York was made prior to January, 1876. A strip of land one hundred feet wide, marked on the map annexed to the assessment as avenue B, crossing the street in question at right angles, was omitted from the assessment. Said avenue was closed by statute in 1875. (Chap. 49, Laws of 1875.) The said strip, prior to the assessment, was not designated on the tax map of the city and no valuation thereof appeared upon the tax assessment-rolls. It was divided between the adjoining lots and assessed upon the tax-roll for 1876, which assessment was made prior to January 1, but did not become effectual until May 1 of that year. (§ 8, chap. 802, Laws of 1859.) In proceedings to vacate the assessment, held, that as there was no lawful valuation of said strip of land when the board of assessors acted, they had no power to make such valuation or to assess it; that they were under no legal obligation to suspend their proceedings until the new assessment-roll became operative; and that, therefore, the omission of said strip of land did not invalidate the assessment.</p> <p>It did not appear from the record that the petitioner was assessed for paving the street along avenue B, or that the cost thereof was included in the assessment. Held, that this was fatal to the application.</p>

<p>The firm of C. F. P. & Co. made their promissory note payable to their order and indorsed the same. L., one of the firm and also a member of the firm of J. S.’s Sons, indorsed his own name and the name of the latter firm thereon without their knowledge or consent, and delivered it to a firm to whom he was individually indebted to be applied upon the debt, who transferred the note to plaintiffs for value, before maturity, plaintiff having no notice of the circumstances attending the execution of the note. In an action against the members of the firm of J. S.’s Sons upon the indorsement, held, that the defendants were liable.</p> <p>One of the firm to whom L. transferred the note was one of the directors of the plaintiff. Held, that it was not thereby made chargeable with, or affected by, his knowledge of the transaction; that the knowledge acquired by him, not as an officer of the plaintiff or while engaged in its business, but in an individual capacity could not operate to its prejudice, nor was there any presumption that he communicated it to plaintiff.</p> <p>The purchase of a promissory note for a sum less than its face is a discount thereof within the meaning of the provision of the banking act of this State (§ 18, chap. 260, Laws of 1838), which authorizes associations organized under it to discount bills, notes, etc.</p> <p>Niagara Go. Bank v. Baker (15 Ohio St. 68), TP & M. Bank v. Baldwin (23 Minn.), distinguished.</p> <p>Plaintiff was organized under said act. The note in question was purchased by it at a greater discount than lawful interest. Held, that this did not invalidate its title; that if any penalty was incurred thereby (as to which gumre), it was only the penalty prescribed by the act (see amendment, chap. 193, Laws of 1870); that this was not available as a defense as it was not set up in the answer.</p> <p>It seems that it would not have availed if it had been pleaded.</p> <p>Also, held, that the violation of the statute was not a fact affecting the good faith of plaintiff as holder of the paper.</p> <p>Also, held, that if the purchase of the note was beyond the scope of plaintiff’s powers as defined by the act under which it was organized, it would not avail defendants.</p>

This was an action of trespass. The complaint alleged the entry by defendants in December, 1877, upon the lands of plaintiff, the cutting down and carrying away of trees and timber, etc. The answer alleged in substance that one David Westervelt became the owner and possessor of the locus m quo in 1831, and that he and his successor in title and interest had owned and occupied the same since that time. The facts appear sufficiently in the opinion.

The nature of the action and the facts appear sufficiently in the opinion. To create an estoppel in pais defendants were obliged to show that plaintiff did or said something inconsistent with his title to mislead defendants, which defendants relied on, and by which they were damaged. (Jewell v. Miller, 10 N. Y. 402; Payne v. Burnham, 62 id. 73 ; Howell v. Wilcox, 44 id. 403; Barnard v. Campbell, 55 id. 463; Bowen v. Bowen, 30 id. 540; Plumb v. Catt. Bank, 18 id. 395; Seld.

(Reported below, 20 Hun, 137.) The nature of the indictment and the facts appear sufficiently in the opinion. In passing the ordinance the common council exceeded its powers, and it is inoperative and void. (Mayor, etc., v. Thorn, 7 Paige, 261-263 ; Met.

(Reported below, 18 Hun, 548.) The ordinance in question, which was passed in July, 1877, declared it to be unlawful for any person to peddle or deliver milk from any vehicle in any of the public streets or alleys of said city, without having first been duly licensed by the mayor, as therein provided, and that any person violating the ordinance should be adjudged guilty of a misdemeanor.

The nature of the action and the facts are set forth sufficiently in the opinion. The mere silence of the owner, after his property has been taken by a trespasser, will not in law amount to a ratification and adoption of the unlawful act.

Rodman and others, composing the firm of Hodman & Adams, in place of the plaintiff above named herein. The facts appear sufficiently in the opinion. It is only when the order is in favor of and accepted by the appellant, or that by means of it he gains some substantial benefit, that an appeal is waived. (Benkard v. Babcock, 27 How.

The rights of a policy-holder against a company whose action has prevented his performance of his part of the contract differ from those of one in a company which has been dissolved. (Lancaster Case, 78, 89; Un. Central Life v. Poettker, 4 Am. L. R. 109; Kennedy Case, Cairn’s Dec. 7.) The contract of insurance is not only an entire contract in itself, but involves the supposition of a company insuring others so as to make each risk subject to the general average.

<p>Error to the General Term of the Supreme Court, in the fourth judicial department, to review judgment affirming a judgment of the Court of Sessions, in and for the county of Seneca, entered upon a verdict convicting the plaintiff of the crime of assault and battery with intent to ldll. (Reported below, 21 Hun, 882.)</p> <p>The indictment contained ten counts, the last two of which are as follows:</p> <p>“And the jurors aforesaid, upon their oaths aforesaid, do further present that the said Andrew W. Pontius, late of the town of Fayette, in the said county of Seneca, afterward, to wit: on the 27 th day of January, in the year of our Lord 1879, at the town of Seneca Falls, in the county of Seneca, aforesaid, with force and arms, to wit: with a large rounded blunt stone (the same being then and there a dangerous and deadly weapon), wMch the said Andrew W. Pontius then and there in his right hand had and held, in and upon one John G. Iloster of Seneca Falls, in said county of Seneca, in the peace of God, and the said people, then and there being, then and there did make an assault, with intent to commit murder, on the said John G. Hosier, and did then and there cut, heat, strike, wound and evil treat him the said John G. Hosier, and other wrongs to the said John G. Hosier, then and there did, to the great damage of him, the said John G. Hosier, contrary to the form of the statute in such case made and provided, and against the peace of the people of the State of Hew York and their dignity.</p> <p>“And the jurors aforesaid, upon their oaths aforesaid, do further present that the said Andrew W. Pontius afterward, to wit: on .the 27th day of January, in the year of our Lord 1876, at the town of Seneca Falls, in the said county of Seneca, with force of arms, and not having the fear of God before him, in and upon the said John G. Hoster, in the peace of God and the said people, then and and there did feloniously, willfully and with a deliberate and premeditated design to effect the death of the said John G. Hoster, did make an assault, and that the said Andrew W. Pontius, with a certain stone of no value (the same being then and there a dangerous and deadly weapon), which he,, the said Andrew W. Pontius, then and there in his right hand had and held, in and upon the right side and- toward the top and back of the head, three inches above the right ear of him, the said John G. Iloster, then and there feloniously and willfully and of his malice aforethought, did heat, cut, strike and wound, and that he, the said Andrew W. Pontius, with the stone aforesaid, so as aforesaid sued in cutting, beating and wounding the aforesaid John G. Iloster, then, and there feloniously, willfully and of his malice aforethought and with deliberate and premeditated design to effect thedeathof the said John G. Iloster, did strike, wound, penetrate, beat the said John G. Hosier, in and upon the head of the said John G. Hosier, two wounds of the length of three inches each, and of the depth of one-half inch, which said wounds were likely to produce death, with the intent to kill and murder him, the said John G. Hosier, contrary to the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity.”</p> <p>The facts pertinent to the questions discussed appear sufficiently in the opinion.</p> <p>As the indictment alleges an assault with a deadly weapon, with intent to kill, it was improper and unjust to permit the people to give evidence of forgery. (Wharton’s Criminal law [2d ed.], 238 ; 2 Bussell on Crimes, 772; Van Pelt v. Magraw, 4 N. Y. 110 ; The People v. Olcott, 1 Park. 252.) It was not proper evidence to go to the jury, what Iloster said about Pontius’ house having been burned. (Green v. Disbrow, 56 N. Y. 371.) It was improper for this jury to examine the different J’s in the index of the ledger, or to look at or compare any part of the index with- the alleged forged notes. (Van Wyck v. McIntosh, 14 N. Y. 439.) When irrelevant evidence is offered it may be rejected at once, or the judge may let it in, and repudiate it if it shall fall short of any tendency to prove the issue. ( Weidler v. Bank, 11 Serg. & Rawle, 134, 139.) The question to the defendant, how much was the undertaker’s bill, in connectian with the death of his child, was improper. (Green v. Disbrow, 56 N. Y. 334; Daly v. Erickson, 45 id. 791; People v. Crops, 76 id. 288.) The criminal law does not permit the joinder of two or' more distinct offenses in one count of an indictment. (2 Colby’s Criminal Law, 118; The People v. Wright, 9 Wend. 193; Dawson v. The People, 25 N. Y. 399, 402; Reed v. The People, 1 Park. 481.)</p> <p>It was proper and competent to prove the facts tending to show a motive on the part of the prisoner to commit the crime. (Stout v. The People, 4 Park. Cr. 71; People v. Wood, 3 id. 681; Pierson v. The People, 18 Hun, 239, affirmed by Court of Appeals.) The forged notes were certainly competent on the question of motive. (Beebe v. Bull, 12 Wend. 504, 507; Magee v. Badger, 34 N. Y. 248; Elton v. Markham, 20 Barb. 343; Caldwell v. Murphy, 11 N. Y. 417; Jones v. Osgood, 6 id. 233.) It was competent and proper for both the witness and the jury to make the comparisons which they did make. (Miles v. Loomis, 75 N. Y. 288.) It was competent and proper to show by the expert, Stevens, that the body of the $1,000 note and the signature were in the same handwriting. (Haughey v. Wright, 12 Hun, 180.) It was competent to prove that the prisoner told the witness, in 1877, that he owed the complainant $6, which was to be paid from the $12 coming from Mer- " ritt, as corroborating the testimony of complainant. (Nicholls v. Van Valkenburg, 15 Hun, 230, 233.) The ruling of the court that comparisons must be confined to papers in the case was correct. ( Van Wyck v. McIntosh, 14 N. Y. 439; Randolph v. Loughlin, 48 id. 456 ; Merritt v. Campbell [Court of Appeals, January 13, 1880], 21 Alb. L. J. 153.) The objection of the prisoner’s counsel to the hypothetical question put to the physician, William A. Swaby, that it was not a question of scientific skill, one way or the other, was properly overruled. (Koenig v. The Globe Mutual Life Insurance Co., 10 Hun, 558.) It was material and competent to show the relations between the complainant and the prisoner, to show the pecuniary condition of the prisoner at the time. (Nicholls v. Van Valkenburg, 15 Hun, 230, 233; Dunn v. The People, 29 N. Y. 523, 526; Gardner v. The People, 6 Park. Cr. 155.) The decision of the court on a motion in arrest of judgment is not the subject of exception. (People v. Allen, 43 N. Y. 28-32.) A bill of exceptions, in a criminal case, brings up for review no questions, except those which arise on a trial of an indictment. [Freeman v. The People, 4 Denio, 21; The People v. Gardner, 6 Park. Cr. 155; The People v. Allen, supra.) An indictment containing one good count will sustain a general verdict of guilty, although there may be other defective counts therein. [People v. Davis, 56 N. Y. 95, 100.) A count in an indictment charging the use of different prohibited means to perpetrate the alleged crime, charging all as constituting the one offense specified, is good and sufficient. [People v. Davis, supra, 100, 101; People v. Casey, 72 N. Y. 393, 396, 397.)</p>

This action was brought to recover back moneys alleged to have been paid by plaintiff under protest and to release its property from a levy and threatened sale under a tax-warrant issued by defendant’s comptroller. The facts are sufficiently set forth in the opinion. The company’s remedy is by a review of their decision by certiorari. (Swift v. City of Poughkeepsie, 37 N. Y. 512; People ex rel.

The facts appear sufficiently in the opinion. The fire commissioners had jurisdiction to make the order dismissing the relator, and in then proceedings have complied with every condition prescribed by the statutes which define their powers. (Laws 1873, chap. 335 ; id. 1870, chap, 137.) It was the province of the commissioners to judge of the credibility of the relator, and to believe or disbelieve his statements, according to their judgment. (Elwood v. Western U. Tel.

the third judicial department, affirming an order of Special Term, which granted a reference to ascertain the damages sustained by defendant by reason of a temporary injunction granted herein. (Reported below, 15 Hun, 14.) This action was brought to restrain ■ the defendant from entering upon certain land to which plaintiff claimed title, and from cutting timber, or from otherwise injuring or intermeddling therewith.

” The order of General Term also ordered that plaintiff “enter judgment in this action upon the decision heretofore made by the General Term, * * * and file a judgment-roll with the clerk * * x within twenty days after service of a copy of this order.” And that in so doing he might “ file one of the printed copies of the case on appeal submitted on the argument of the appeal.” And in case of failure to comply the defendant was authorized to enter judgment.

■ Appeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 17 Hun, 115.) 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 first judicial department, affirming a judgment in favor of defendants entered upon a verdict. This action was brought upon the contract, which, with the material facts, is set forth in the opinion.

(Reported below 18 Hun, 298.) This action was brought to recover of defendants the amount of a judgment held by plaintiff against one John B. Gaylord. Defendants were sought to be made liable because of a clause in a deed from said Gaylord and wife to defendants of certain premises upon which the judgment was a lien, by which the conveyance was made subject to the liens thereon, which the grantees assumed and agreed to pay.

(Reported below, 13 J. .& S. 80.) The judgment of the General Term sustained the demurrer and dismissed the complaint. The substance of the complaint is set forth in the opinion. The allegations in the complaint as to duress are sufficient to sustain the action. (Smith v. Bromley, 2 Doug. 696; Cockshott v. Bennett, 2 Term R. 763; Middleton v. Anslow, 1 R. Wms. 768; Jackson v. Mitchel, 13 Ves.

<p>' Where tl|e drawer of a check has no funds at the time in the bank to meet it,{the check is due immediately without presentment and demand, and the statute of limitations begins to run from its date.</p> <p>Where, therefore, the holder of the check delays for six years to enforce his claim it is barred by the statute.</p>

This was an action of ejectment to recover an alleged undivided interest owned by plaintiff in certain lands situate in Livingston county, of which Jacob A. Foose, the father of plaintiff, died seized.

(Reported below, 18 Hun, 56.) This action was upon a bond executed by defendants to discharge a warrant issued in proceedings under the act, chapter 482, Laws of 1862, to enforce a lien against the schooner “ La Ninfa.” During the summer of 1877, Fred Beach was engaged in the construction of the schooner “La Ninfa,” at Port Jefferson, in Suffolk county, Long Island, and on the 18th day of September, 1877, she was launched without any sails, and incomplete in other respects.

<p>Appeal from judgment of the General Term of the Superior Court of the city of- Rew York, in favor of defendants, entered upon a case submitted under section 1279 of the Code of Civil Procedure. (Reported below, 12 J. & S. 471.)</p> <p>The question submitted was as to the liability of defendants common carriers for the loss of certain goods.</p> <p>The substance of the facts set forth in the case submitted appears in the opinion.</p> <p>By the law merchant, the defendants are liable for the loss of the goods under the cireumstances stated. „ They were bound to give the consignees a reasonable opportunity to remove them. (2 Kent’s Com. 605; McAndrew v. Whitlock, 52 N. Y. 40; Richardson v. Goddard, 23 How. [U. S.] 28, 39; 4 Bing. N. C. 314; 3 Mann. & Gr. 337; 11 Clarke & Fin. 45 ; Price v. Powell, 3 Comst. 322; Zinn v. N. J. Steamboat Co., 49 N. Y. 442; Sherman v. Hudson R. R. R., 64 id. 254; The Steamboat “ Sultana ” v. Chapman, 5 Wis. 454; Slade v. Payne, 14 La. Ann. 453; Dean v. Vaccaro, 2 Head, 489; The “Paytona,” 2 Curtis’s C. C. 21; Graves v. Hartford & N. Y. Co., 38 Conn. 143; Chicago & Rock Island R. R. v. Warren, 16 Ill. 502; Moses v. Boston & Me. R. R., 32 N. H. 523; The “ Tangier,” 1 Clifford, 396; Bedfield on Carriers, §§ 110, 111; Story on Bailments, § 545.) The decisions of Massachusetts holding to the contrary are not binding upon the courts of this State. (Aymar v. Sheldon, 12 Wend. 439; Benedict on Admiralty, § 313, b; 1 Kent’s Com. 477; Swift v. Tyson, 16 Peters, 1, 19; Luke v. Lynde, 2 Burr, 882, 887; Meade v. Beale, Taney, 339; Austin v. Miller, 5 McLean, 189; The Ship “ George" Olcott, 89; Pine Grove v. Talcott, 19 Wall. 666 ; Robinson v. Commercial Ins. Co., 3 Sumner, 220, 225; 1 Blackstone’s Com. 273 ; 4 id. 67; 1 Clifford, 396; Richardson v. Goddard, 23 How. [U. S.] 38; Moses v. Boston ds Me. R. R. Co., 32 N. H. 523.) The legislature of Massachusetts has no power to make a law impairing the obligation of a contract to deliver to the consignee. (Gelpcke v. Dubuque, 1 Wall. 175, 206 ; Olcott v. Fond du Lac, 16 id. 678.) Even a local usage to the contrary will not avail in an action against a carrier on an agreement to deliver to the consignee. (Ostrander v. Brown, 15 Johns. 39; Collender v. Dinsmore, 55 N. Y. 200 ; 1 Greenl. Ev., § 295 ; Broom’s Legal Maxims, 477.)</p> <p>Defendants "were not liable as common carriers, and were liable as warehousemen, only for ordinary care, although the owner of the goods had no opportunity to take them away before the ñre. (Norway Plains Company v. Boston & Me. R. R., 1 Gray, 263; in Rice et al. v. Hart et al., 118 Mass. 201; Sessions v. Western R. R., 16 Gray, 132; Rice v. Boston & W. R. R., 98 Mass. 312; Miller v. Mansfield, 112 id. 260; Stowe v. N. Y., Boston & Prov. R. R., 113 id. 521.) Inasmuch as delivery cf the goods was to be made in Boston, where the loss occurred, the law of Massachusetts should control the rights of the parties with respect to such delivery. (Barber v. Wheeler, 6 Am. Rep. 434; Grey v. Jackson, 12 id. 1; Curtis v. D., L. & W., 74 N. Y. 116; Knowlton v. Erie R. R., 19 Ohio St. 260 [2 Am. Rep. 395] ; M. & St. P. R. R. v. Smith [Ills. S. C. 1875], 7 Chic. Leg. News, 174; Norway Plains Co. v. B. & M. R. R., 1 Gray, 263; Rice v. Hart, 118 Mass. 201.) It is well settled that a mere usage, which is matter of evidence, is, when proven, to control the question of delivery. (Angelí on Carriers, § 301; McMasters v. Penn. R. R., 69 Penn. St. 374.) Defendants are not liable as common carriers, because their contract as carriers had been fully performed, and matters connected with the performance are regulated by the law prevailing at the place of performance. (Scudder v. Union Bank, 1 Otto [91 U. S.], 413 ; Mills v. Mich. Cent. R. R., 45 N. Y. 626 ; Whitford v. Panama R. R., 23 id. 465; Elmendorf v. Taylor, 10 Wheat. 152; Shelby v. Guy, 11 id. 367; Town of S. Ottawa v. Perkins, 94 U. S. 260; Fairfield v. The County of Gallatin.) Defendants were not carriers between New York and Boston. (Story on Contracts, § 655; 1 Chitty on Contracts [11th ed.] 130; Scudder v. Union Nat. Bank, 1 Otto. 413; M. & St. P. R. R. v. Smith [Ill. S. C. 1875], 7 Chic. Leg. News, 174; Pomeroy v. Ainsworth, 22 Barb. 118; Andrews v. Pond, 13 Peters, 78; Kessler v. N. Y. C. & H. R. R. R. Co., 61 N. Y. 538; Pope v. Nickerson, 3 Story, 474,485; Addison on Contracts, § 240.) They cannot, therefore, be held in this case upon any supposed contract made by them within the State of New York, or its jurisdiction. (Sherman v. Hudson River R. R. Co., 64 N. Y. 260; Ætna Ins. Co. v. Wheeler, 49 id. 616; Hunt v. N. Y. & Erie R. R. Co., 1 Hilton, 228; McDonald v. Western R. R. Co., 34 N. Y. 497; Rogers v. Wheeler, 52 id. 262; O’Neill v. N. Y. C. & H. R. R. R. Co., 60 id.138.) The general obligation created by the law of the place of delivery, in respect to the mode of delivery by a carrier, controls. (Rawson v. Holland, 59 N. Y. 613, 615, 616; Van Santvoord v. St. John, 6 Hill, 157; Goold v. Chapin, 20 N. Y. 259; McDonald v. Western R. R. Co., 34 id. 497; Root v. The Great Western R. R. Co., 45 id. 524; Mills v. Michigan Cent. R. R. Co., id. 622; Henner v. Buffalo & State Line R. R. Co., 44 id. 505, 511; Fenshaw v. Rowland, 54 id. 242; Pelton v. Rensselaer & Saratoga R. R. Co., id. 214; Nutting v. Conn. River R. R. Co., 1 Gray, 502.)</p>

The nature of the action and the facts are set forth sufficiently in the opinion. Whether the hell was rung or not is unimportant, since the only object in ringing a bell is to notify those approaching a railroad crossing of an approaching train. (Chicago, R. I. & P. R. R. Co. v. Houston,, 5 N. Y. Dig., No. 22, p. 523.) The fact that plaintiff testified that he did not hear the bell ring furnished no evidence for the jury.

Where the General Term assumes jurisdiction which it has not, or refuses to exercise jurisdiction which it possesses, to review proceedings at Special Term, this court will review its action and reverse it if wrong. (People v. Ferris, 36 N. Y. 218 ; People v. N. Y. C. R. R. Co., 29 id. 418, 423; Martin v. Windsor Hotel, 70 id. 101; Code, § 190, subd. 2 ; N. Y. Ice Co. v. Ins.

(Beported below, 17 Hun, 204.) This action was brought to recover two installments due upon a contract between plaintiff and one Hammell, the substance of which, and the material facts, appear in the opinion. The rule is settled in this State, that if one person, for a valid consideration, make a promise to another for the benefit of a third person, such third person.may maintain an action upon the promise.

(Eeported below, 13 J. & S. 599.) The nature of the action and the facts appear sufficiently in the opinion. The assessments deducted from the award are not an offset or counter-claim against the plaintiff Hatch. (Pearse v. Barton, 3 Metc. 520; Shaw v. Peckett, 26 Vt. 482; Lane Co. v. Oregon, 7 Wall. 71; Matter of Deering, 55 How.

(Reported below, 13 J. & S. 85.) The nature of the action and the facts appear sufficiently in the opinion. The contract between the parties being that plaintiff should be paid for his services and efforts in bringing the parties together to make an illegal contract in case they made one, and that the amount of his compensation should depend upon a per centage on the amount of that illegal contract, he was not entitled to recover.

<p>By the terms of a mortgage executed by the W. S. E, P. R. Co., defendant C., as trustee for bondholders, was authorized, in case of default, to commence foreclosure on request of holders of bonds to a certain amount; also, on written request of a majority of the bondholders he was authorized to purchase on foreclosure sale, and to take measures to organize a new company for the benefit of the bondholders, upon such terms as a majority of them should direct, to which company he should convey the property. A default having occurred, and the proper request having been made, C. commenced foreclosure. Before sale plaintiff herein, as a bondholder, presented a petition asking for a stay of proceedings. An order was entered in the~action, to which plaintiff’s counsel assented, by which C. was directed to bid “ for the benefit of all the holders of the bonds,” up to $450,000. C. bid $750,000, and took the title to the property. No request was made by a majority of the bondholders for C. to make the purchase. In an action brought by plaintiff to recover the amount of his bonds, held, that as against the plaintiff, C. had the right, and it was his duty to make the purchase, and as no restraint as to price was put upon him by the mortgage, and as the order did not forbid the offer of a higher price than that specified, but simply fixed the minimum price at which he should allow others to purchase, he had the right in his discretion to bid over that sum.</p> <p>C., after such purchase, upon request of a majority of the bondholders, advertised the property for sale and sold it at public auction to the IT. Y. E. R. Co. for $100,000. Held, that such sale was unlawful; that the request of a majority of the bondholders gave no authority to make it, so long as any bondholder dissented and insisted upon the performance of the trust; that if for any reason the due execution of the trust seemed to the trustee to be impossible, he should have sought the direction of the court.</p> <p>The bonds secured by the mortgage amounted to $750,000, the IT. Y. E. E.' E. Co., the purchaser of the property, had a capital stock of $10,000,000,' its property was much more than that covered by the mortgage, and its membership was much greater in number than the bondholders. Held, that said corporation could not be considered as substantially the organization provided for by the mortgage, although a majority of the bondholders had gone into it, and had determined that it was “ for their use and benefit ” that the mortgaged' property should be transferred.</p> <p>Also, held, that plaintiff’s measure of damages was the value of his proportional part of the property so wrongfully sold.</p> <p>At about the time of plaintiff’s intervention in the foreclosure proceedings he brought an action against the mortgagor and defendant C. to set aside and cancel another mortgage, and to enjoin foreclosure proceedings thereon; that action was settled before the sale by C. by'a stipulation duly signed, which provided that plaintiff was “ to have leave to unite with the other bondholders on like terms in the new organization, and agrees to do so as to all bonds which he absolutely owns.” The scheme for the organization, and the articles of association of the IT. Y. E. R. R. Co. had been prepared before the signing of the stipulation, and the defendant claimed on trial of this action that this was “ the new organization ” referred to therein; the evidence was conflicting on this point. The court was requested by defendant .to find, in substance, that by the words “ new organization ” the organization so contemplated was intended. The court declined soto find, “ on the ground that the facts and conclusions sought are not necessary to sustain the decision rendered.” Held-error, that the question was material; that although a refusal to find as requested might have been justified by the evidence, as this was not the ground taken, the decision could not be considered as such refusal; that defendant was entitled to have his request granted or refused without qualification.</p> <p>Under the provision of the Code of Civil Procedure (§ 998), which provides that a refusal to make any finding whatever upon a question of fact, on a trial by the court or a referee, where a request was seasonably ’ made, is a ruling upon a question of law, a refusal of a request to find a fact, on the ground that the fact is immaterial, presents a question of law, and if the fact be material the ruling is error, although the fact be not conclusively proved, and the evidence as to it is conflicting,</p>

(Beported below, 19 Hun, 460.) The relator’s structure being upon property that belongs to the city which is exempt from taxation, is not taxable. (People v. Doe, 36 Cal. 220; U. S. v. R. R. Co., 17 Wall. 322; Laws of 1813, chap. 863, § 178; People v. The Brooklyn Assessors, 39 N. Y. 81; Smith v. The Mayor, 68 id. 552; People ex rel.

This action was brought by plaintiffs, as assignees of the carriers, of the freight, upon a cargo of stoves shipped by defendants from Tonawanda to New York.

The nature of the action and the material facts appear in the opinion. The defendant is not liable for the plaintiff’s debt, unless he was a trustee in 1874, when such debt was contracted.

(Reported below, 19 Hun, 47.) This action was brought to restrain the defendants from removing or in any way interfering with certain beds or deposits of marl upon lands owned by the corporation defendant. The facts, are sufficiently stated in the opinion. The marl was personal property and could not be claimed to be a part of the realty.

This action was brought to foreclose a mortgage. Defendant Field was sought to be charged personally upon a guaranty of the payment of the mortgage and accompanying bond. He defended on the ground, among others, of loches on the part of plaintiff in enforcing collection after notice so to do, to his damage. By the terms of the bond, in case of non-payment of interest .for thirty days after due, the principal became due at the election of the obligee.

(Reported below, 16 Hun, 509.) The relator was appointed to the office in January, 1875, and was removed by the mayor in August, 1877, by notice in writing served upon him. The manner of removing the relator being provided for by section 25 of the charter of 1873 (chap. 335), the provisions of any subsequent section upon the subject are controlled by it.

This action was brought as judgment creditors of defendants, Augüst and Eugene Flauraud, to set aside an assignment purporting to have been executed by them to defendant Salmon, for the benefit of their creditors. The facts pertinent to the questions discussed are set forth in the opinion. One copartner cannot, by virtue of his power as such copartner, make an assignment of the copartnership effects to a trustee for the benefit of the creditors of the firm.

This action was brought to restrain defendants from the use of the word “ Silex” as a trade-mark and for damages, etc. The facts sufficiently appear in the opinion, The word “Silex” is the proper subject for a trade-mark to designate the origin and ownership of glass chimneys.

This action was brought to recover the amount of a reward offered by defendant in the following advertisement published by him in a New York paper: $500 Reward.— A package of 4 pairs diamond earrings, 2 gold chains, and other jewelry, on the train arriving at 6 p. or., between Jamaica, Bushwick and Hunter’s Point. The finder will receive the above reward by leaving or sending his address.

The writ was obtained to review the proceedings of the board of police commissioners of the city of Mew York, removing the relator from the position of clerk in the police department. The relator was removed April 1, 1876; he applied for the writ March 1, 1878. The granting or refusal of a common-law writ of certiorari rests in the discretion of the court, and the exercise of such discretion is not reviewable here.

(Reported below, 20 Hun, 50.) This action was brought by plaintiff as judgment creditor of the firm of Campbell & Moody, of which firm defendant Campbell was the surviving partner, to reach certain lands, the title to which was in defendant Palmer, but which the complaint alleges were held by him in trust for the benefit of said firm. The action was commenced in 1867. Defendant Palmer died May 10th, 1874. Campbell died June 5th, 1874.

(Reported below, 17 Hun, 467.) This action was upon a policy of fire insurance, issued to plaintiff by the defendant September 4,1876, upon a building and personal property.

<p>Trade-marks may consist of pictures, symbols, or a peculiar form or fashion of label, or they may consist simply of a word or words.</p> <p>Where the trade-mark is of the first kind, to constitute an infringement there must be such an imitation as to amount to a false representation, liable to deceive the public.</p> <p>Where, however, the trade-mark consists of a word, it continues to be the distinguishing mark of the manufacture to which it is applied, in whatever form it is printed or represented; and its use by another, in any form, applied to similar articles, is unlawful and may be restrained.</p> <p>The use of the word by another is not justified, although used in connection with different words from those in connection with which it is used by the party who has appropriated it as a trade-mark.</p> <p>To entitle a party to restrain another from continuing the unlawful use of his trade-mark, it is not essential to show an actual intent to defraud.</p> <p>Nor is it essential that the party shall first establish a legal right to the trade-mark in an action at law.</p> <p>Plaintiffs for three years before the commencement of this action- had adopted and used the word “ Pride ” as a trade-mark in the manufacture and sale of, and to designate their cigars. Defendants, with knowledge of this, used the same word on the labels and boxes of cigars manufactured by them. Held, that said word, as applied to cigars, was arbitrary, not descriptive of the article, and one which could lawfully be appropriated as a trade-mark; and that plaintiffs were entitled to an injunction restraining its use by defendants.</p> <p>Also, held, that as the infringement charged was the appropriation of a word, not an imitation of a symbol or label, it was no defense that defendants’ labels did not resemble those of plaintiffs,</p>

This action was brought to recover the amount of certain royalties which the complaint alleged defendants had agreed to pay for an exclusive right to use a certain invention known as “Hawk’s auxiliary air-chamber for stoves, heaters and furnaces,” for which letters patent had been issued to Elizabeth Hawks, and which had been assigned by her to the plaintiff, the defendants, Swett and Quimby, and to one Huttall.

The nature of the action and the facts are set forth sufficiently in the opinion. A cause of action against a defendant on an implied contract to pay up the amount of stock held by him cannot be joined with a cause of action against him for damages for a violation of duty as director. ( Wooden v. Waffle, 6 How. Pr. 145; Hunter v. Powell, 15 id. 221; Flynn v. Bailey, 50 Barb. 73.) If the contract is to stand, it must stand as it was made.

(Reported below, 16 Hun, 317.) This action was brought upon two policies of insurance issued by defendant upon the life of John G. Yose, and assigned to the plaintiff. The complaint alleged the issuing of the policies, copies of which were annexed.

This action was brought by plaintiff, as a creditor of James Buckelew, deceased, under the statute (2 B. S. 151, § 26), against defendants as legatees under the will of the deceased to recover the value of assets received by them. The alleged liability of the testator was for a breach of a warranty against incumbrances contained in a deed.

This action was brought to recover damages for an alleged breach of a covenant contained in a contract between the defendant and Bridget O’Day. By the contract Mrs. O’Day agreed to sell and convey to defendant certain premises for a sum specified.

Appear from order of the General Term of the Supreme Court, in the first judicial department, reversing an order of Special Term. (Reported below, 21 Hun, 509.) The nature of the Special Term order, and of the action, and the material facts appear sufficiently in the opinion. The order was appeal-able. (Code, § 274; Bacon v. Comstock, 11 How. Pr. 197, 200; Code of Civ.

Warren. (Reported below, 21 Hun, 320.) The action against Warren was for the conversion of ¡moneys collected by him in a fiduciary capacity. The plaintiff caused him- to be__ arrested by the sheriff, who took from him bail; they were excepted to and failed to justify.

The requirements of the writ asked for and the material facts appear in the opinion. The order denying the'application was re viewable. (People v. Common Council, 78 N. Y. 56.)

The nature of the action and the facts are set forth sufficiently in the opinion. The plea of tender is never an admission of an amount due greater than the amount tendered. (7 Wait’s Actions and Defenses, 597.) The granting of plaintiff’s motion for judgment on the pleadings was a trial. (Old Code, § 252; Place v. Butternuts Woolen & Cotton Manuf.

An appeal does not lie to this court from an order of the General Term, affirming an order of the Special Term vacating an order of arrest. (Townsend v. Nebenzahl, 10 Weekly Dig. 398; Liddell v. Paton, 67 N. Y. 393.) The order of arrest, like a warrant of attachment, is a provisional remedy, which it is within the discretion of the court of original jurisdiction to either grant or withhold in a proper case. The exercise of such discretion is not reviewable in this court.

These were cross appeals from an order of the General Term of the Supreme Court, in the fourth judicial department, affirming in part and reversing in part a judgment herein in favor of defendant entered upon a decision of the court on trial at Special Term. The nature of the action and the facts are set forth sufficiently in the opinion. Plaintiffs claim that defendant, by various acts, set water back upon his premises was one single cause of action.

York, affirming a judgment in favor of plaintiffs, entered upon the report of a referee. This action was brought by plaintiffs as members of the firm of A. T. Stewart & Co., to recover a balance alleged to be due that firm on account for advances made by it to the late firm of B. Underhill & Co., of which firm defendants were the members. Defendant Vanderbilt alone appeared and defended.

This was an action for divorce a vinculo, on the ground of adultery. The referee found the charge not proved, and reported in favor of a dismissal of the complaint. This report was confirmed, and judgment entered accordingly. The General Term reversed the judgment on the facts and ordered a new trial.