Volume 84 — New York Reports

(Reported below, 20 Hun, 36.) The nature of the claim and the material facts appear in the opinion. The judgment comes within the meaning of the phrase “ other property incapable of manual delivery,” in section 235 of the old Code. (Old Code, §§ 231, 462, 463, 464; O'Brien v. Mechanics and Traders' Ins.

This action was brought to recover damages for alleged negligence of the defendant in the performance of a contract as a common carrier for the transportation of eight car-loads of cattle. A memorandum of decision on former appeal will be found in 53 N. Y. 608.

<p>Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made May 11,1880, affirming a judgment in favor of plaintiff, entered on a decision of the court on trial at Special Term. (Mem. of decision below, 21 Hun, 274.)</p> <p>This action was brought by plaintiff as legatee under the will of Mary S. Kirby, deceased, for a construction of the will, he asking that the provision for him “ be adjudged to be a demonstrative legacy, payable out of the principal of the estate in case of a deficiency of income, and that defendant as trustee under the will be required to pay out of the estate an alleged deficiency.”</p> <p>The. substance of the will in question and the material facts appear in the opinion.</p> <p>Plaintiff has no title whatever of any sort in the corpus of the estate. (1 R. S., 729, § 60 ; Boynton v. Hoyt, 1 Den. 53; Grout v. Van Schoonhoven, 1 Sandf. Ch. 336; Perry on Trusts, 524; Forbes v. Richardson, 11 Hare, 354; Long v. Short, 1 P. Wms. 403; Creed v. Creed [H. of Lds.], 1 Drury & Warren, 416; Addecott v. Addecott, 29 Beav. 460 ; Hindle v. Taylor, 20 id. 109; Baker v. Baker, 6 H. of Lds. Cas. 616; Earle v. Billingham, 24 Beav. 445.) The executors hold the property absolutely in trust for certain purposes, and they cannot alienate or apply any part of it to any other purpose. (In the Matter of Fero, 9 How. Pr. 85.) They cannot change its investment. (1 R. S. 730, § 65; Conger v. Jones, 18 Barb. 467; L'Amoreux v. Van Rensselaer, 1 Barb. Ch. 34.) A legacy to the widow, substantially in lieu of dower, and accepted by her as such, does not "abate on a deficiency of assets. (Heath v. Dindy, 1 Russ. Ch. Cas. 543.)</p> <p>The testatrix intended that §2,000 per annum of her property should go to the support and use of plaintiff. (2 Jarman, 204, 309, 534, 537; Moseley v. Marshall, 22 N. Y. 200 ; Stewart v. Chambers, 2 Sandf. Ch. 382.) The annuity is in the nature of a demonstrative legacy, and on a failure of the fund is to be made good out of the general assets. (2 Story’s Eq. Jur., § 1064a; Willard’s Eq. Jur. 502; Walton v. Walton, 7 Johns. Ch. 258, 262; Enders v. Enders, 2 Barb. S. C. 362, 365, 367; Newton v. Stanley, 28 N. Y. 61; Pierrepont v. Edwards, 25 id. 128; Williams on Executors, 995, 996, 1000, 1004; 1 Roper, 192, 203, 218, §§ 4, 193, 199, 208, 219, 220, 233; La Grice v. Finch, 3 Meriv. 50; Wilcox v. Rhodes, 2 Russ. Ch. 452 ; Chaworth v. Beech, 4 Ves. Ch. 555 ; Gillaume v. Alderney, 15 Ves. 383 ; Sadler v. Turner, 8 id. 617; Raymond v. Brodbelt, 5 id. 199; Kirkpatrick v. Kirkpatrick, cited in Roberts v. Peacock, 4 id. 159; Mann v. Copland, Madd. 223; Creed v. Creed, Cl. & F. 491; 1 Shep. Touchstone, 433.)</p>

This action was brought by plaintiff, as administratrix of David Wachtel, deceased, against defendant, a benevolent association, organized under the laws of the State of New York, to recover the sum of - $560, which defendant, by its constitution, agreed to pay, upon the death of a member, to his personal representatives. The defense was that the deceased had been, prior to his death, expelled from the association for non-payment of dues.

decision of the court on trial at a Special Term. This action was brought to restrain defendant from interfering with plaintiff’s alleged right of drainage across defendant’s premises, and for damages, etc. The facts appear sufficiently in the opinion. An easement of the character of the one in suit -can only he created by deed or grant, or by prescription, from which a grant may he inferred.

This action was brought to recover damages for alleged negligence causing the death of plaintiff’s intestate. The facts appear sufficiently in the opinion.

This action was brought to recover damages for the death of Jane Ilart, plaintiffs intestate, alleged to have been caused by the defendant’s negligence. The claim of the plaintiff was that the deceased, in crossing upon the defendant’s bridge over the Hudson river at Albany, fell from the footway through the open draw and was drowned.

The nature of the action and the facts are set forth sufficiently in the opinion. The claim was bona notdbilia in the place where the parties reside, and not under any possible view assets due or collectible in this State. (Been v. Sherman, 73 N. Y. 299; Holcomb v. Phelps, 16 Conn. 136 ; Abbott, Adm'r, v. Coburn, 28 Vt. 670; Burbank v. Payne, 17 La. Ann. 15; Sawyer v. Ins. Co., 46 Vt. 697; Lewis v. Union Ins. Co., 97 U. S. 682; Smith v. Mut. Ins.

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department,"entered upon an orde,r made June 26,1880, affirming a judgment in favor of plaintiff, entered upon the report of a referee. (Beported below, 21 Hun, 344.)</p> <p>This action, was brought to foreclose a mortgage executed by defendant George Foster, to plaintiffs testator. Subsequent to the execution of the mortgage Foster conveyed the premises to defendant Wright, by deed absolute on its face, containing a covenant by which Wright assumed and agreed to pay the mortgage. Plaintiff asked a personal judgment against Wright for any deficiency; Wright contested this liability, claimingl that the deed to him was intended simply as a mortgage. I</p> <p>The further facts pertinent to «the questions discussed appear sufficiently in the opinion.</p> <p>The referee erred in receiving the testimony of the attorney as to what occurred in his office August 10, 1874, when Foster, Wright and Crosby were present, such communications being privileged. (Code Civil Pro., § 835; Williams v. Fitch, 18 N. Y. 550; Bk. of Utica v. Mersereau, 3 Barb. Ch. 595 ; Parker v. Carter, 4 Munf. 273; Whitney v. Barney, 30 N. Y. 330; Britton v. Lorenz, 45 id. 51; Yates v. Olmstead, 56 id. 632 ; Bacon v. Frisbie, 10 N. Y. Wkly. Dig. 134.) .The conveyance to Wright, though an absolute deed in form, being in fact only a mortgage and never having been accepted by defendant Wright with knowledge that it contained the assuming clause, no personal judgment could have been rendered against defendant for any deficiency. (Thomas on Mortgages, 192; 61 N. Y. 471; 22 id. 438, 439; Chan. [2d ed.] 478; 8 Wend. 234; 2 id. 318 ; Richard v. Saunderson, 41 N. Y. 179; 46 id. 605 ; 52 id. 251; 68 id. 499 ; Gurnsey v. Rogers, 47 id. 241; Vrooman v. Turner, 69 id. 280 ; King v. Whitley, 10 Paige, 464; Trim v. March, 54 N. Y. 599.)</p> <p>A mortgagor who is personally liable to the mortgagee for the payment of the debt secured by the mortgage, but who has parted with all his interest in the -mortgaged premises, while a proper is not a necessary party to a bill to foreclose the mortgage, even where a mere surety is sought to be held for the deficiency. (Drury v. Clark, 16 How. 424 ; Bigelow v. Bush, 6 Paige’s Ch. 343 ; Cherry v. Monro, 2 Barb. Ch. 618, 627; Gilbert v. Averill, 15 Barb. 20.) The deed from Foster and wife to Wright contained in its assuming clause what was equivalent in law to a covenant on the part of Wright to pay the mortgage debt, due from Foster to Boot. (Russell v. Pistor, 7 N. Y. 171; Brother v. Hughs, 12 id. 74; Lawrence v. Fox, 20 id. 268 ; Belmont v. Coman, 22 id. 438 ; Hartley v. Harrison, 24 id. 170; Burr v. Beers, 24 id. 178; Rickard v. Sanderson, 41 id. 179; Vrooman v. Turner, 69 id. 280 ; Comstock v. Drohan, 71 id. 9 ; Albany City Savings Institution v. Burdick, 20 Hun, 88.) The referee properly found as matter of fact that there was no mistake in the deed. (Long v. Warren, 68 N. Y. 426 ; Irving Nat. Bk. v. Myers, 21 Alb. L. J. 74; Moran v. McLarty, 75 N. Y. 25; Upton v. Tribilcock, 91 U. S. 50; Alb. Sav. Inst. v. Burdick, 27 N. Y. Sup. Ct. 104.) Hnder the pleadings the defendant was not in a position to show a mistake in the deed. (6 Wait’s Pr. 169-177 ; Wells v. Yates, 44 N. Y. 525 ; Bryce v. Lorillard Fire Ins. Co., 55 id. 240; Bush. v. Hicks, 60 id. 298; Andrews v. Gillespie, 47 id. 487; Paine v. Jones, 75 id. 593 ; Heelas v. Slevin, 53 How. 356.) Evidence of the attorney who drew the conveyance from Foster to Wright was properly received. (Brandt v. Klein, 17 Johns. 335 ; Coventry v. Tannahill, 1 Hill, 33, 36, 40 ; Whiting v. Barney, 30 N. Y. 330 ; Britton v. Lorenz, 45 id. 51, 57; Hebberd v. Haughain, 70 id. 54, 61, 62; Mullford v. Muller, 3 Abb. Ct. of App. Cases, 330.)</p>

(Reported below, 21 Hun, 500.) This action was brought to recover damages for alleged negligence causing the death of John McOosker, plaintiff’s intestate.These facts were stipulated on the trial— “ First. That John McCosker, plaintiff’s intestate, was, at the time of his death, in the employ of the defendant as a driller in and about the defendant’s yard at Hunter’s Point.

<p>S. deposited, with defendant, a savings bank, a certain sum of money, receiving a pass-book, which stated that the account was with her, " in trust for Christopher Boone,” plaintiff’s intestate. S. received the passbook and drew out one year’s interest. After her death defendant paid the amount to her administrator, upon production of his letters of administration and of the pass-book. In an action to recover the deposit, held that, in the absence of any notice from the beneficiary, the payment was good and effectual to discharge the defendant; that the deposit constituted S. trustee and transferred the title to the fund from her individually to her as such trustee ; that, upon the death of S., her rights as trustee to demand and receive the fund devolved upon her administrator, and upon his demand defendant was bound to pay it over; it had no right to inquire into the nature of the trust, and owed no duty to the. beneficiary until the latter by notice, by forbidding payment or by demanding it himself, created such right and duty.</p> <p>Borne v. Citizens' Savings Bank (21 Hun, 235) reversed.</p> <p>Martin v. Bunk (75 N, T. 134) distinguished.</p>

(Reported below, 23 Hun, 213.) The nature of the action and the facts appear sufficiently in the opinion. If Reeves took the $15,000 as a loan, the testator’s estate became relieved from liability as partner, and Reeves became debtor to the estate, paying interest. (2 Lindl. on Partn. 806; Barfield v. Loughborough, L. R., 8 Ch. App. 1; Vyse v. Foster, L. R., 7 Eng. & Ir. App.

This action was brought by plaintiffs, as executors of the will of William S. Toole, to obtain a construction of said will.

Appear from order of the General Term of the Supreme Court, in the fourth judicial department, made April 6, 1880, affirming two orders of Special Term,- one ordering a reference of this action to a referee to be agreed upon by the parties, the other referring it to a referee named; defendant having refused to select, or to agree to a referee under the first order. The-nature of the action appears in the opinion.

This was an action to foreclose a mortgage assigned to the plaintiff by one Fraser. The assignment contained a guaranty of the punctual payment of the mortgage, principal and interest. Fraser, by the permission of the plaintiff, managed the foreclosure action. He told the attorneys that the plaintiff was willing to wait for her money until he, Fraser, could foreclose and sell the property, and by his direction he was not made a party.

(Mem. of de? cisión below, 18 Hun, 582.) The nature of the action and the facts are set forth sufficiently in the opinion of Earl, J. The property of the Eoosevelt Hospital is exempt from the payment of this assessment by the special act creating it.

This action was brought to recover damages for the alleged conversion of a quantity of corn. The answer alleged in substance that defendants purchased of one Atkinson, in the usual course of business, sixteen bills of exchange, and among them three bills of exchange drawn against the corn then shipped on board a vessel, receiving the bills of lading therefor as collateral, and that defendants paid for said bills of exchange in good faith, before notice of plaintiffs’ claim.

This action was brought to obtain a construction of a provision in the will of Ernest S. McCrackan, deceased. This will was dated the 11th .day of October, 1875; the testator died in February, 1878.

(Heported below, 21 Hun, 450.) This action was brought to recover a balance alleged to be unpaid on account for moneys deposited by George F. Falkland, plaintiffs intestate.

■ Appeal from order of the General Term of the Supreme Court, in the first judicial department; affirming an order of Special Term, which dissolved a preliminary injunction herein and refused an application to continue the same on the ground as stated in the order “ that the court has no jurisdiction in this action.” (Reported below, 22 Hun, 568.) The plaintiff and the defendant, the Dominion Telegraph Company, are corporations organized under the laws of Great Britain.

This action was brought by George S. Boardman, plaintiffs’ testator, in August, 1875, to compel defendant to pay dividends upon certain shares of preferred stock held by him and to restrain it from paying dividends upon certain portions of its common stock until the claim of plaintiff was paid and satisfied. The original plaintiff having died after trial and before the decision the present plaintiffs were substituted.

<p>The director of a corporation occupies a fiduciary position, and so is within the rule disenabling one intrusted with powers to be exercised for the benefit of others, from dealing in his own behalf in respect to matters involving the trust.</p> <p>• The right of the corporation, or those claiming through it, to avoid any such dealings does not depend upon the question whether the director was acting fraudulently or in good faith.</p> <p>But an act of a director, claimed to be in hostility to this rule, in the absence of bad faith on his part, cannot be avoided without a restoration to him of what the corporation received.</p> <p>Where a director receives the property of the corporation as collateral security for a debt honestly due him, ara liability justly incurred, the rule has no application, as the payment of the debt or the discharge of the obligation is an essential prerequisite of an avoidance of the transaction ; and this is so whether the pledge be taken for a present or a precedent debt.</p> <p>The director of a railroad corporation cannot purchase its bonds below par except on peril of avoidance by the courts upon application of the corporation .</p> <p>But as he may be the lawful holder of such bonds, knowledge upon the part of a purchaser from him for value and in good faith of bonds so bought ' that he is a director, does not put such purchaser upon inquiry, or charge him with constructive notice of the defect in the title.</p> <p>Where, however, bonds are taken from a director in pledge for a precedent debt, the pledgee takes no better title than his pledgor, and they are subject in his hands to any defect in the title of the latter.</p> <p>Under the provision of the General Railroad Act (sub. 10, § 28, chap. 140, Laws of 1850) authorizing a corporation organized under it to borrow moneys necessary for completing, finishing or operating its road, to issue and dispose of its bonds and to mortgage its property and franchises “ to secure the payment of any debt contracted for the purposes aforesaid,” a railroad corporation may pledge its bonds for moneys loaned, and also as security for a precedent debt incurred for moneys borrowed for the purposes specified.</p> <p>Upon foreclosure of a mortgage given to secure its bonds, a holder of bonds so pledged as collateral is not limited to proof of an amount simply equal to the amount of his debt, but is entitled to prove the whole amount of his bonds, and to share in the distribution accordingly up to the amount of his debt.</p> <p>The L. & I. Co. by its charter (§ 5, chap. 730, Laws of 1871) is authorized to “ advance moneys * * * upon any property, real or personal.” It discounted a note secured by pledge of the bonds of a railroad corporation. Ueld, that conceding the discount'was in violation of the provision of the statute against unauthorized banking, and so the note was void, the loan and its security were valid and could be enforced.</p> <p>Where the president of a railroad corporation received the notes of the corporation secured by its bonds delivered as collateral fora sum due him upon his salary, held, that such a debt fairly and honestly incurred could be so secured; and that he was entitled to prove such bonds.</p> <p>Also held, that one to whom bonds were pledged as security for an indebtedness for rent of offices was entitled to prove them; that a business office was essential and necessary and was embraced within the authority to issue bonds.</p> <p>A pledgee of certain of the bonds claimed that the pledge had been foreclosed by sale at auction and that through such sale he became the owner; the terms of the sale, or whether before sale there was a demand of payment or notice to redeem did not appear. Reid, that as no right to sell was shown, the holder of the bonds must still be treated as pledgee.</p> <p>Where a question arises under a Federal law and respects a corporation created by its authority, the rulings of the Federal courts must be followed.</p> <p>Accordingly held, that the decision of the United States Supreme Court, in (?. M. Go. v. Nat. Bank (96 U. S. 64), was conclusive here, holding that a contract of loan made by a National bank was valid and could be enforced although violative of the'provision of the National Banking Act (U. S. R. S., § 5200), prohibiting a loan to one individual exceeding one-tenth part of the capital of the hank.</p>

(Reported below, 13 J. & S. 452.) This action was brought by plaintiffs who composed the firm of Frank & Hirsh, to recover a balance alleged to be due upon their deposit account with defendant. The facts appear sufficiently in the opinion.

This was an action to recover possession of a strip of land called “ the beach,” lying along the front, upon the bay, of defendant’s land, in the town of East Hampton, Suffolk county, and between high-water mark and the “ cliff” or upland. Th.e case is reported upon a former appeal in 68 H. Y. 459. Plaintiffs claimed title under what is known as “-Dongan’s Patent,” issued by Governor Dongan in 1686 to plaintiffs in trust for the use of the inhabitants of the town.

This action was brought upon an undertaking executed by Stephen B. Adee, defendants’ testator for bail. The material facts are stated in the opinion. No cause of action survived the death of Stephen B. Adee. (3 Williams on Executors [7th ed.], 1869; De Golyer on Guarantees, etc. [Am. ed], 422; Smith on Mercantile Law, 286 ; Randall v. Sackett, 77 N. Y. 480, 482; Jardan et al. v. Dobbins, Admr., 122 Mass. 168; Harris v. Fawcett, L. R., 15 Eq.

<p>A passenger, when taking or leaving a railroad car at a station, has a right to assume that the company will not expose him to unnecessary danger, but will discharge its duty which requires it to provide passengers a safe passage to and from the train.</p> <p>A passenger, therefore, is not, in all cases liable to the charge of contributory negligence because he attempts to cross an intervening track without looking for approaching trains.</p> <p>Defendant ran a train upon its road daily from S. to E. S., primarily for the purpose of carrying its employees to E. S., where it had a machine shop and freight-house ; it carried, however, on this train persons going as ordinary passengers, on payment of fare, and it was in charge of a uniformed conductor. There was a station-house at E. S., on the south, side of the road; this train did not stop at the station, but at a point 1,300 feet further east, opposite the freight-house located north of the road. At this point there were about twenty tracks ; the road was not planked and there was nothing to indicate on which side passengers should leave the train. E., plaintiff’s intestate, a girl seventeen years of age, took this train, in cpmpany with an old lady, at S. to go to E. S., where she resided. The train stopped at the usual place on the third track from the south. The two south tracks were used for ordinary passenger trains. E. got off on the south side of the train and assisted her companion to alight. There was a path about seventy feet west leading south to or near the house where she was employed, which was south of the road. The two walked a few steps in a south- ■ westerly direction until they reached the second track, when a passenger train from the east, which was behind time and running thirty-five or forty miles an hour, struck and killed them both. In an action to recover damages the evidence tended to show that they did not look to the east after leaving the car, and that if they had done so they could have seen the approaching train; also that no person connected with the train gave any instructions to passengers where to alight or any warning of the approaching train. Held, the fact that the deceased did not look, while it was a material and important one for the consideration of the jury upon the point of contributory negligence, did not establish it as matter of law; and that a refusal of the court to charge that it was per se negligence was not error.</p>

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, in favor of plaintiff; entered upon an order made April 8, 1880, denying a motion for a new trial, and directing judgment on a verdict.</p> <p>This action was brought to recover damages for the death of James Masterson, plaintiff’s testator, alleged to have been caused by defendant’s negligence.</p> <p>Plaintiff’s evidence was to the effect that the deceased was engaged as a mason at North Albany on the 24th of September, 1878. At the close of the day’s work he and two others rode home to the city of Albany in a wagon driven by one Atwood, who was drawing bricks to the place where they were at work, and who invited them to ride. One of them sat on the seat in front with the driver, and the other two on a box in the rear, one facing to the front and the other, the deceased,-to the rear. The driver drove down on the west.side of Broadway in said city, until within a few rods of the railroad crossing, where he turned to the east side to avoid a truck, and then turned back to the west side of the street again, directly at the crossing. The defendant’s road, composed of four tracks, crosses diagonally over Broadway. This course took the wagon across the railroad at a right angle. While passing over the second track, the wheels struck into a “ hole in the track,” which caused a jar that precipitated the deceased from the box on which he was sitting to the track and killed him. There is also a horse railroad company, The Albany and Watervliet Turnpike arid ¡Railroad Company, having two tracks on Broadway'; the accident occurred at the intersection of these two tracks with those of the defendant.</p> <p>The further material facts are set forth in the opinion.</p> <p>The injury must have been occasioned solely by the negligence of the defendant, and either by direct proof given by the plaintiff, or from the circumstances attending the injury, the jury must be authorized to find affirmatively that the person injured was free from fault which contributed to the accident, or the action is not maintained. (Reynolds v. The N. Y. C. & H. R. R. R. Co., 58 N. Y. 248; Cordell v. The N. Y. C. & H. R. R. R. Co., 75 id. 330.) The deceased was bound to exercise such care and watchfulness as a prudent man, approaching and crossing such a place, would ordinarily exercise. (Kellogg v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 72.) The horse railway company was bound to keep its tracks in good repair, and “ at all times to keep the street and pavement within and between the rails of said tracks, and to the extent of two feet beyond and outside of said rails, in good and proper condition ; ” for a failure to do this, defendant being liable for such conduct, it could maintain an action therefor against the horse railway company. (Lowery v. Brooklyn C. & N. R. R. Co., 76 N. Y. 28; Moore v. Goedel, 34 id. 527.) While the driver’s negligence may not be imputed to the deceased, yet the law forbids a recovery, even admitting that there was negligence concerning the crossing ; not because deceased is chargeable with contributive negligence, but for the reason that the defect in the roadway did not cause the death. (Cosgrove v. N. Y. C. & H. R. R. R. Co., 13 Hun, 329; Barringer v. N. Y. C. & H. R. R. R. Co., 18 id. 398.)</p> <p>There was evidence of gross negligence oil the part of defendant in allowing the planking between the rails to remain out of repair so as to render the crossing difficult and unsafe for vehicles passing along the" street, which presented on this subject a proper case for the jury. ( Wasmer v. Del., L. & W. R. R. Co., 80 N. Y. 212; McMahon v. Second Ave. R. R. Co., 75 id. 231; Gale v. N. Y. C. & H. R. R. R. Co., 76 id. 594, 595; Worster v. Forty-second Street, etc., R. R. Co., 50 id. 203; Conroy v. Twenty-third Street R. R. Co., 52 How. 49.) It does not relieve the defendant from liability that the accident occurred at the point of intersection of its road with that of a horse railroad. If it was equally incumbent on both companies to keep the crossing in repair, either one is liable for omitting to perform his duty. (Webster v. Hudson R. R. Co., 38 N. Y. 260; Sheridan v. Brooklyn, etc., R. R. Co., 36 id. 39; Colegrove v. N. Y. & N. H. R. R. Co., 20 id. 492; Chapman v. N. H. R. R. Co., 19 id. 341; Eyler v. County Comm’rs, 49 Md. 258; State v. Gorham, 37 Me. 451; Watson v. Tripp, 11 R. I. 98; Willard v. Newbury, 22 Vt. 458; Lowell v. Proprietors of Locks, etc., 104 Mass. 18.) A railroad company is required to restore a street intersected by its road “to its former state or to such state as not unnecessarily to impair its usefulness.” (2 R. S. [6th ed.] 533, § 39, subd. 51; Cott v. Lewiston R. R. Co., 36 N. Y. 214; People v. Troy & B. R. R. Co., 37 How. 427; Richardson v. N. Y. C. R. R. Co., 45 N. Y. 846; People v. N. Y. C. & H. R. R. R. Co., 74 id. 302 ; Gale v. N. Y. C. & H. R. R. R. Co., 76 id. 594; Wasmer v. Del., L. & W. R. R. Co., 80 id. 212; 10 Weekly Dig. 100, 101.) The question of contributory negligence was properly submitted to the jury. (Weston v. N. Y. Elev. R. R. Co., 73 N. Y. 595; Jetter v. N. Y. C. & H. R. R. R. Co., 2 Abb. Ct. of App. Dec. 458; Weed v. Ballston, 76 N. Y. 329, 333; Stackes v. N. Y. C. & H. R. R. R. Co., 79 id. 464; Johnson v. H. R. R. Co., 20 id. 65; Conroy v. Twenty-third Street R. R. Co., 52 How. 49.) ■ It is a matter of right to have the issues of negligence submitted to the jury, when they depend on conflicting evidence, or on inferences to be deduced from a variety of circumstances, in regard to which there is room for a difference of opinion among intelligent men. (Wolfkiel v. Sixth Ave. R. R. Co., 38 N. Y. 49 ; Hart v. Hudson R. Bridge Co., 80 id. 622; Weber v. N. Y. C. & H. R. R. R. Co., 58 id. 451; Bernhard v. R. & S. R. R. Co., 1 Abb. Ct. of App. Dec. 131.) The deceased was a voluntary passenger, riding with the consent of the driver, but had no connection with or control over him, and the negligence of the driver, therefore, was not imputable to him, and is no defense to the action. (Dyer v. Erie Ry. Co., 71 N. Y. 228, 234; Robinson v. N. Y. C. & H. R. R. R. Co., 66 id. 11.)</p>

This action was commenced by Jane C. Ham, and she dying, was continued by Watson Ham, as her administrator.

<p>Where the gravamen of an action is fraud, plaintiffs having failed to establish the fraud cannot maintain the action on the theory that a liability founded on contract was disclosed by the evidence.</p> <p>In an action' founded on fraud, a counter-claim founded on contract cannot be allowed.</p> <p>Plaintiff s complaint alleged in substance that under color of a contract defendant fraudulently obtained money from the State by means of false representations, false vouchers and collusion with State officers. Defendants set up as a counter-claim a balance due them from the State for work done under the contract. To the answer a reply was served. Held, that the cause of action set up as a counter-claim was not 'one arising out of the transaction upon which plaintiff’s claim was founded, within, the meaning of the Code of Procedure (§ 150); and that a counterclaim founded on contract was not proper in such an action.</p> <p>A State by coming into court as a suitor does not subject itself to an affirmative judgment upon a set-off or counter-claim.</p> <p>Authority to render a judgment against the State in one of its own courts cannot be implied but must be express. It cannot be claimed under general laws in which the State is not mentioned.</p> <p>Accordingly held, that the provision of the Revised Statutes (3 R. S. 553, § 18) providing that civil actions or proceedings instituted in the name of the State “ shall be subject to all provisions of law respecting similar suits and proceedings” instituted by individuals, save where otherwise provided, and that the State shall be liable to be nonsuited, etc., did not authorize an affirmative judgment against it on a counter-claim.</p> <p>Judgment was rendered upon the report of referees in favor of plaintiff. This was reversed by the General Term. The attorney-general on appeal to this court gave the required stipulation for judgment absolute. SeM,that this was not an assent to an affirmative judgment on the counterclaim ; that it waived no legal objection to the counter-claim, or immunity of the State from such a judgment.</p> <p>It was claimed on the part of defendants that the counter-claim, having been put in issue, would be barred if no judgment was rendered thereon. Held, untenable; that defendants' demand for a balance due, not being the proper subject of a counter-claim in this action, was not properly in issue and the judgment rendered would not conclude defendants in respect thereto.</p> <p>It seems that the right of a debtor of the United States government, when sued by it, to interpose a counter-claim or counter-credits, rests in all cases upon the provisions of the act of Congress granting and regulating it (Act of March 3,1797, §§ 3 and 4); and while, under said act, a defendant upon complying with its conditions may give in evidence any counterclaim he may have in his own right, which is a proper subject of set-off, such counter-claim is available only to the extent necessary to defeat the claim of the government, and no affirmative judgment for any excess can be rendered against it.</p>

Upon settlement of the case defendants’ counsel requested and the referee made a number of additional findings of fact. The new Code does not change the former practice of obtaining findings of fact in the settlement of a case when the action is tried before a judge or referee. (Code of Civil Procedure, § 1023, and note.)

(Reported below, 22 Hun, 559.) The following facts appeared: John IT. McCunn died in 1872, possessed, among other property, of a leasehold interest in certain premises in the city of New York. His will was duly proved December 4, 1872, and James M. Gano, Thomas McCunn and Jane W. McCunn were appointed and qualified as executors and executrix thereof.

This action was originally brought by Russell D. Miner; he haying died during its pendency, the present plaintiff, as administratrix, with the will annexed, was substituted.

This action was brought to restrain defendant from constructing its road across the highway or avenue in Kings county known as “ Ocean Parkway.” The fhcts appear sufficiently in the opinion.

The nature of the- action and the facts are set forth sufficiently in the opinion. Defendants’ testator did not exercise that care, diligence, prudence and caution in the care, management and preservation of the bonds, which he was by law bound to exercise, and his executors are liable. ( Walton v. Walton, 2 Abb. [N. S.] 428; 1 Keyes, 15; Montgomery v. Dunning, 2 Bradf. 220; Thompson v. Thompson, 1 Bradf. 24; Redfield on Wills, 389 ; Bouv.

(Reported below, 18 Hun, 362.) The nature of the action and the facts are set forth sufficiently in the opinion. The application of the income rested in the discretion of the executor, and the court cannot interfere with the exercise of such discretion unless it appears that the executor is acting mala fide. ( Withers v. Yeadon, 1 Rich. Eq. [Ct. of App. S. C.]; Collins v. Carlisle, 7 B. Monr. [Ky.] 13 ; Chamber v. Atkins, 1 Simons & Stuart, 382; Mason v. James et al., 3 Edw.

(Reported below, 19 Hun, 481.) The complaint alleged in substance that the plaintiff’s intestate, Ira Riggs, was for upward of fifteen years next preceding his death of unsound mind, and for that cause legally incapable of mating the dispositions of his property to the defendant which are thereinafter set forth; that shortly prior to his death he, in form, transferred to the defendant several sums of money, amounting in all to the sum of $4,000, which the defendant received;…

<p>It seems that, as a general rule, investments by executors or testamentary trustees of- the funds in their hands, which take those funds beyond the jurisdictiqn of the court, will not be sustained, and the trustee who so invests does so at the peril of being held responsible for the safety of the investments.</p> <p>This rule, however, is not so rigid as to admit of no possible exceptions, although the case must be very rare and the circumstances very unusual and peculiar to make it an exception.</p> <p>The rule relates only to voluntary investments by the trustee, and does not govern a case where, by act of the testator, a foreign investment has been made, or where, without the fault of the trustee, the assets have been transmuted' into a debt which can only be secured and saved by taking a foreign security.</p> <p>Where, therefore, the assets of an estate had all passed into the possession of one of two executors and trustees, and, upon his death, the surviving executor found that the deceased had mingled the assets with his own, and had partly converted them to his own use and partly lost them by unsafe investments, and, as the best possible arrangement to secure the fund, the survivor took from the estate of the deceased a bond secured by mortgage on real estate in Ohio, which was guaranteed by the widow who was sole legatee and at that time solvent, and also took further collaterals for greater safety, the securities being at the time perfectly good, held, that it was the right and the duty of the survivor to accept the securities; and that he could not be made personally liable for so doing.</p> <p>The rule that each of several co-executors is only liable for his own acts, and cannot be made responsible for the negligence or waste of another, unless he in some manner aided or concurred therein, applies as well where the executors are also trustees.</p> <p>Also, held, that while it was the duty of the surviving executor to foreclose the mortgage in case of non-payment, he was entitled to exercise the reasonable discretion of an ordinarily prudent man as to the time and occasion.</p> <p>Ormiston v. Olcott (22 Hun, 270), reversed.</p>

The nature of the action and the facts are set forth sufficiently in the opinion. A cause of action existed against Cummisky and a judgment can be given herein in relation to his claim to the salary.

decision of the court, on trial at Special Term. (Reported below, 19 Hun, 550.) This action was brought by plaintiff, as superintendent of the insurance department of the State of Hew York, 'to foreclose a mortgage executed by defendants, Allen Munroe and Julia T., his wife, upon lands owned by the latter, given to secure a bond of the former. The bond and mortgage were executed to the Hew York State Life Insurance Company, to secure the sum of §40,000 loaned to Allen Munroe.

Allen, defendant’s intestate, was referred under the statute, and confirming said report. The nature of the claim and the facts appear sufficiently in the opinion. The referee erred in finding that the estate of defendant’s intestate was liable to contribute to the plaintiff.

<p>Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made May 14, 1880, affirming a judgment in favor of plaintiff, entered upon .a decision of the court on trial without a jury. (Reported below, 21 Hun, 166.)</p> <p>This action was brought upon a draft drawn by defendant, the Mechanics & Traders’ Bank of Hew Orleans, upon M. Morgan’s Sons, bankers of Hew York city, dated Hew Orleans, March 17,1879, payable to the order of plaintiff.</p> <p>The facts appear sufficiently in the opinion.</p> <p>All the proceedings taken herein against the bank were void, because the said bank had ceased to exist as a corporation before the action was commenced. It had no capacity to sue or to be sued. (State Savings Asso. of St. Louis v. Kellogg, 52 Miss. 583; Thornhill v. The Bank, 1 Wood’s U. S. C. C. 1; Mudge v. Gommrs. of Exch. Bkg. Co., 10 Rob. [La.] 464; Dorville v. City Bank, 9 id. 362; French v. Stanton, 1 La. Ann. 8; City Ins. Co. v. Commercial Bank, 68 Ill. 348; Willitts v. Waite, 25 N. Y. 581.) The obligation of parties to commercial paper is to be ascertained and determined, not by the law of the place where the payment is to be made, but by the law of the place where such contract has its legal inception. (Everett v. Vandryes, 19 N. Y. 436; Aymar v. Sheldon, 12 Wend. 439; Cook v. Litchfield, 5 Sandf. 330; Duscomb v. Bunker, 2 Metc. 8; Lowry's Admrs. v. Bank of Georgia, 7 Ala. 120; Dunn v. Adams, 1 id. 527; Cox v. Adams, 2 Kelly [Ga.], 158; Hatcher v. M'Morine, 4 Devereux, 122; Dow v. Rowell, 12 N. H. 49; Yeatman v. Cullen, 5 Blackf. 240; Holbrook v. Vibbard, 2 Scam. 465; Trimley v. Vignier, 1 Bing. N. C. 151; Slocum v. Pomery, 6 Cranch, 221; Story on Prom. Notes, § 339 and notes; Dundas v. Bowler, 3 McLean, 397; Norton v. Cook, 9 Conn. 314; Burrows v. Jemino, 2 Stra. 733; Story on Prom. Notes, § 168; Story on Bills, § 165; Rouquette v. Overmann, L. R., 10 Q. B. 536; Clopton v. Hall, 51 Miss. 482; Rorer on Interstate Law, 49; Fitch v. Remer, 1 Bliss, 337; Phil. Loan Co. v. Towner, 13 Conn. 249; Levy v. Levy, 78 Penn. St. 507; 2 Kent’s Com. 560, note d ; First Nat. Bank of Toledo v. Shaw, 61 N. Y. 283, 293; Willitts v. Waite, 25 id. 577; Cantwell v. Dubuque W. R. R., 17 How. 16; Artisans’ Bank v. Park Bank, 41 Barb. 599; Western Bank v. City Bank of Columbus, 7 How. 238; Bank of U. S. v. The U. S., 2 How. [U. S.] 711; De Wolf v. Johnson, 10 Wheat. 367; 6 Curtis, 438; Cope v. Alelen, 53 Barb. 350; Dolman v. Cook, 1 McCarter, 56; Campion v. Kille, id. 229 ; Andrews v. Torrey, id. 355; Chase v. Dow, 47 N. H. 405; Musson v. Lake, 4 How. [U. S.] 262; Wood v. Gibbs’ Admr., 35 Miss. 560; Matter of Glyn, 15 Nat. Bank. Reg. 495; Cooper v. The Earl of Waldegrawe, 2 Beav. 282; Trimbey v. Vignier, 1 Bing. N. C. 151; Rouquette v. Overmann, L. R., 10 Q. B. 525; Gibbs v. Fremont, 9 Exch. 25; 22 L. J. [Ex.] 302; Crawford v. Branch Bank, 6 Ala. [N. S.] 15 ; Bailey v. Heald, 17 Tex. 102; Snaith v. Mingay, 1 M. & S. 87; Baker v. Sternes, 9 Ex. 684; Robertson v. Burdekin, 1 Ross’ Leading Cases, 812; 1 Daniel on Neg. Inst. 743, § 898; Freese v. Brownell, 35 N. J. L. 286; Everett v. Vendryes, 19 N. Y. 436; Hunt v. Standart, 15 Ind. 33; Raymond v. Holmes, 11 Tex. 55; Kuenzi v. Elvers, 14 La. Ann. 391; Lenning v. Ralston, 23 Penn. St. 137; Price v. Page, 24 Mo. 67; Boneden v. Page, id. 595; Page v. Page, id. 596; Bk. of U. S. v. U. S., 2 How. 711; 1 Daniel on Neg. Inst. 721, § 865; Hyde v. Goodnow, 3 N. Y. 266; Evans v. Anderson, 78 Ill. 558.) Drawers are simply sureties, and are held according to the law of the place where the hill is drawn, that is, the place where their contract is made. (Allen v. Mer. Bk. of N. Y., 22 Wend. 215, 240; Bk. of Rochester v. Gray, 2 Hill, 227; Carroll v. Upton, 2 Sandf. S. C. 171; Allen v. Kemble, 6 Moore’s P. C. 314; Phillimore’s Internat. Law, § 1349 [4th ed.], p. 661; Hicks v. Brown, 12 Johns. 142.) All personal contracts are to be governed by the law of the place of contract. (Ivey v. Lalland, 42 Miss. 444 ; 2 Am. Rep. 606; Upton v. Hubbard, 28 Conn. 274, 286 ; Story’s Confl. of Laws, § 514; Burns v. Provincial Ins. Co., 35 Barb. 525 ; Matter of Wilder, 22 La. Ann. 219 ; 2 Am. Rep. 721; Lenning v. Ralston, 23 Penn. St. 137, 140.) Where a law of limitation of actions operates upon the debt, the courts of every State will sustain that defense when the defense is good in the State in which the contract was made, on the principle of upholding lex loci contractus. (Perkins v. Guy, 55 Miss. 153; 30 Am. Rep; 510; Baker v. Stonebraker, 36 Mo. 338, 340.) The instrument sued on is not in the law merchant a bill of exchange; because it has never been accepted. (Jones v. Pacific W. Co., 29 Am. Rep. 308.) The breach of the drawer’s contract was not here, but in Hew Orleans. (2 Daniel’s negotiable Instruments [2d ed.], § 970; Chitty on Bills, 266, 93, 217; Fitzgerald v. Staples, 88 Ill. 234; 30 Am. Rep. 551; Bayley, 28; Story’s Confl. of Laws, 208 ; Hicks v. Brown, 12 Johns. 142; Aymar v. Sheldon, 12 Wend. 445.) The right of action against foreign corporations exists only by statute, and is limited to property in this State; as to the ownership of which property they differ in nowise from individuals. (Hulbert v. Hope M. I. Co., 4 How. 275; Gibbs v. Queens Ins. Co., 63 N. Y. 114; Brewster v. Michigan C. R. R., 5 How. 183; Whitehead v. Buffalo & L. H. R., 18 How. Pr. 218, 232; Case v. Ohio Ins. Co., 2 C. R. 82 ; Van Buskirk v. The Hartford Fire Ins. Co., 14 Conn. 583.) The money deposited with M. Morgan’s Sons, by said bank, became the property of the bankers, and the bank became their creditor. (Matter of Franklin Bank, 1 Paige, 249 ; Chapman v. White, 6 N. Y. 412; Commercial Bank v. Hughes, 17 Wend. 94; Graves v. Dudley, 20 N. Y. 76.) The said bank being a Louisiana corporation, the moneys due to it from M. Morgan’s Sons were, in the eye of the law, likewise located in Louisiana. (Willitts v. Waite, 25 N. Y. 584; Hoyt v. Comm, of Texas, 23 id. 224 ; 2 Kent’s Com. 429; Atwood v. The Protection Ins. Co., 14 Conn. 555, 562; Van Buskirk v. The Hartford Fire Ins. Co., id. 583; Milne v. Moreton, 6 Binn. 361.) The plaintiff being a National bank organized under the law of the TJnitéd States, and having its banking office in the. city of New Orleans, was not a resident of the State of New York, but was a resident and citizen of the State of Louisiana, and it had no right to sue another foreign corporation in our tribunals. (Bowen v. First Nat. Bk., 34 How. 408; U. S. R. S., §§ 5134, 5146 ; Cook v. State Nat. Bk., 50 Barb. 339 ; 3 Abb. [N. S.] 339; Western Bk. v. City of Columbus, 7 How. 238.) The courts of one State will execute and give effect to an assignment affected by, and made operartive under, the laws of another State, to the same extent and in the same manner as if voluntarily made by any individual, except where the interest of the citizens of their own or other States would be prejudiced thereby; and when to give effect to such foreign assignment would be contrary to the established law or policy of their own State. (2 Kent’s Com. 406, 407, 454; Osgood v. Maguire, 61 N. Y. 524, 529 ; Kelly v. Crapo, 45 id. 86; The Watchman, 1 Ware, 233; King v. Johnson, 5 Harring. 31; Varnum v. Camp, 1 Greene [N. J.], 326 ; Richmondville Manfg. Co. v. Prall, 9 Conn. 487 ; Ivey v. Lalland, 42 Miss. 444 ; 2 Am. Rep. 606; Dunlap v. Rogers, 47 N. H. 281; Dalton v. Currier, 40 id. 237, 248; Sanderson v. Bradford, 10 id. 264; Saunders v. Williams, 5 id. 213; 2 Pars, on Cont. 570, note e.) Where a citizen of a State pursues a fellow-citizen in another State, he may be treated as a trustee and called to account as such in the courts of his own State. (Story’s Confl. of Laws, § 403, etc.; Sill v. Worswick, 1 H. Bla. 690; Phillips v. Hunter, 2 id. 402; Hunter v. Potts, 4 Term, 182; Ex parte Frank, 1 Cook’s B. L. 336; S. C., 7 Bing. 762; Blake v. Williams, 6 Pick. 312; Harris v. Breed, 7 Cush. 16 ; Peck v. Hibbard, 26 Vt. 698; Engel v. Scheuerman, 40 Ga. 206; 2 Am. Rep. 573 ; Dehon v. Foster, 86 Mass. 545; Vail v. Knapp, 49 Barb. 299 ; Field v. Holbrook, 3 Abb. 377; Dobson v. Pearce, 12 N. Y. 169 ; Mitchell v. Bunch, 2 Paige, 606; Mead v. Merritt, id. 402; Bushby v. Munday, 5 Mad. 297; Van Buskirk v. Hartford Fire Ins. Co., 14 Conn. 583, 588; Potter v. Brown, 5 East, 131.) Every subject is to be deemed to be a party to the laws of his own government. (Mather v. Bush, 16 Johns. 233; Consequa v. Fanning, 3 Johns. Ch. 587; Touting v. Hubbard, 3 Bos. & P. 291; Conway v. Gray, 10 East, 536; 2 Pars. on Cont. 568 ; Campbell v. Hall, Cowp. 208; Holmes v. Remsen, 4 Johns. Ch. 460; Keyser v. Rice, 47 Md. 203; 28 Am. Rep. 448.) In all cases where there is no law of the State violated, or the right of the citizen interfered.with, and where the litigants are subject to the " same laws, our courts refuse, on principles of comity, to interfere. ( Willitts v. Waite, 25 N. Y. 577, 587; Story’s Confl. of L., § 413; Van Buskirk v. Hartford Fire Ins. Co., 14 Conn. 583, 586; Olivier v. Townes, 2 Martin [La.], 97; Abraham v. Plestow, 3 Wend. 538, 549; Holmes v. Remsen, 20 Johns. 229.) Under this spirit of comity our courts have recognized that a foreign assignee in statutory assignments, or one deriving title through such assignee, has a standing in our courts. (Hoyt v. Thompson, 5 N. Y. 320, 344; Story’s Confl. of L., § 420; Willitts v. Waite, 25 N. Y. 584.) An assignee can, not only be a party in a State court, but he can sue for and recover penalties not known to the State court. (Cook v. Whipple, 55 N. Y. 150; Thompson v. Sweat, 73 id. 622; Ansley v. Patterson, 77 id. 156; Claflin v. Houseman, 93 U. S. [3 Otto] 137.) The insolvent laws of every State operate upon the citizens of that State, and upon the claims held by them as against citizens of the same State, without respect to the place of origin or performance of the contract. (Scribner v. Fisher, 2 Gray, 43, 48; Burrall v. Rice, 5 id. 539 ; Brown v. Collins, 41 N. H. 405; Baldwin v. Hale, 1 Wall. 223; Newmarket Bank v. Butler, 45 N. H. 236; Kelley v. Drury, 9 Allen, 27; Mather v. Bush, 16 Johns. 233; Hempstead v. Reed, 6 Conn. 480, 491; Norton v. Cook, 9 id. 314; Ogden v. Saunders, 12 Wheat. 213 ; May v. Breed, 7 Cush. 42; Dawes v. Head, 3 Pick. 144, 149; Goodwin v. Jones, 3 Mass. 517; Lanckton v. Wolcott, 6 Metc. 307; Richardson v. Wyman, 4 Gray, 555 ; Dearborn v. Ames, 8 id. 1; Speed v. May, 17 Penn. St. 94 ; Lowry v. Hall, 2 Watts & S. 131; Milne v. Moreton, 6 Binn. 360.)</p> <p>An action against a foreign corporation may be brought by a non-resident, “ when the cause of action shall have arisen, or the subject of the action shall be situated within the State.” (Code of Procedure, § 427; Chitty on Bills, 144 [11th Eng. ed.] ; Cumberland Coal Co. v. Hoffman Coal Co., 30 Barb. 168 ; Burckle v. Eckhart, 3 N. Y. 132; Johnson v. Adams Tobacco Co., 14 Hun, 89; 2 Kent’s Com. * 460 ; Cooper v. Earl of Waldegrave, 2 Beav. 282; Bk. of Commerce v. The Rutland R. R. Co., 10 How. Pr. 1; Whitehead v. Buffalo & L. H. R. R. Co., 18 id. 233; Pomeroy v. Ainsworth, 22 Barb. 128 ; Conn. Mut. Life Ins. Co. v. Cleveland R. R. Co., 41 Barb. 9; 23 How. Pr. 180; Everett v. Vendryes, 19 N. Y. 436; Spencer v. Rogers Locomotive Works, 8 Bosw. 612; Western Bk. v. City Bk. of Columbus, 7 How. Pr. 238; Cantwell v. Dubuque & West R. R. Co., 17 id. 16 ; Citizens' Bk. v. Park Bk., 41 Barb. 599; 1 R. S. 771; 2 id. [6th ed.].) The Mechanics and Traders’ Bank was not dissolved as against creditors attaching its property in this State. (1 Ray’s Stats, of La., § 284; Matter of independent Ins. Co., 1 Holmes, 103, U. S. C. Ct. [Mass.]; Thornhill v. The Bk., 1 Woods, 1; Matter of Washington Marine Ins. Co., 2 Benedict, 292.) Even though the decree of the District Court of Louisiana dissolved the Mechanics and Traders’ Bank, it could only do so as regards its property in Louisiana. As to property in the State of Mew York it could take effect only subject to the claims of creditors. (Hamilton v. Accessory Transit Co., 26 Barb. 46; City Ins. Co. v. Com. Bankk, 68 Ill. 348; Murray v. Vanderbilt, 39 Barb. 140.) The laws of Louisiana could not affect the property in Mew York as against creditors, and as to them the property was liable ,to attachment as to defendant’s debts. (Holmes v. Remsen, 20 Johns. 229; Abrahams v. Plestoro, 3 Wend. 548; Hoyt v. Thompson, 5 N. Y. 341; Johnson v. Hunt, 23 Wend. 91; Willetts v. Waite, 25 N. Y. 577; Kelley v. Crapo, 45 id. 86; Story’s Conflict of Laws, §§ 413,414; 2 Kent’s Com. 406, 407.) The plaintiff has the same right to sue here as a domestic corporation. (2 R. S. 457, § 1; 3 id. [6th ed.] 744, § 1; Merrick v. Van Santvoord, 34 N. Y. 217; U. S. R. S., § 5136 ; U. S. Const., art. 4, § 2; Citizens' Ins. Co. v. Com. Bk., 68 Ill. 348; Betton, Assignee, v. Valentine, 1 Curtis, 168; Merrick's Estate, 2 Ashmead, 485; Lowring v. Hall, 2 Watts & Serg. 129 ; Harrison v. Sterry, 5 Cranch, 302; Ogden v. Saunders, 12 Wheat. 262, 363, 364; Blake v. Williams, 6 Pick. 303; Hoyt v. Thompson, 5 N. Y. 351; Abraham v. Plestoro, 3 Wend. 538; Johnson v. Hunt, 23 id. 89.) The commissioners in liquidation of the bank, having been made defendants by an order of the court upon their own application, they are in the same position as the Mechanics and Traders’ Bank tyould be were it defending the action, and it would have no defense. (Willetts v. Waite, 25 N. Y. 586; Story’s Conflict of Laws, § 412 et seq. ; Westlake’s Conflict of Laws, § 281.) The deposit of the defendant, the Mechanics and Traders’ Bank of Mew Orleans, with M. Morgan’s Sons, was liable to attachment. (Code, §§ 646, 648; Lyman v. Cartwright, 3 E. D. Smith, 117; Willetts v. Waite, 25 N. Y. 577 ; Crosby v. Lumberman’s Bank, Clarke’s Ch. 234, 286; Betton, Assignee, v. Valentine, 1 Curtis, 171; Blake v. Williams, 6 Pick. 303.)</p>

This action was brought by plaintiff as assignee under a general assignment for the benefit of creditors, executed to him by James Doyle, to recover damages for the alleged taking and conversion of a portion of the assigned property. Defendant levied upon the property in question under and by virtue of certain executions issued to him as sheriff, against said Doyle. The further material facts appear in the opinion.

(Reported below, 20 Hun, 325.) This action was brought by plaintiffs, as assignees of Eliza A. Graham, to recover certain dividends declared by defendant, The First National Bank of Norfolk, on shares of its stock standing in the name of said assignor. The defense was payment. The following facts among others were found by the referee. Said defendant was organized under the National Banking Act and was located and doing business at Norfolk, Virginia.

<p>These were appeals from judgments of the General Term of the Supreme Court, in the fourth judicial department, entered upon orders made August 17, 1880, modifying by striking out allowances for costs, and affirming, as modified, judgment, entered on reports of a referee.</p> <p>These actions were brought to have certain bonds, issued by plaintiff to pay for subscriptions for stock of the Cayuga Lake Railroad, authorized by chapter 314, Laws of 1869, as amended by chapter 152, Laws of 1870, delivered up and canceled, and to restrain defendants from transferring them.</p> <p>R is reported on a former appeal in 75 N. T. 398.</p> <p>The referee found in substance in each, case that a majority of the tax payers of the town of Springport, owning more than one-half of the taxable property of ■ the town, duly executed and acknowledged consents in writing that the commissioners for said town, appointed under said act, might borrow, on the credit of the town, $100,000, and issue its bonds for the purposes of the act; that after the presentation of the consents to the assessors and before they met to act thereon, revocations in writing, signed by certain of the tax payers who had signed the consents, and executed and acknowledged in the same manner as the consents, were delivered to the assessors; but that the assessors, being of the opinion that, under the statute, they were not authorized to take cognizance of said revocations, without regard to them, made their affidavit required by statute to authorize the issue of bonds, and filed the same with the consents in the town clerk’s office, and that they were filed in the office of the county cleijk, but that said revocations were not filed; that rejecting the tax payers who signed said revocations, there was not a consent in writing of a majority of the tax payers of the town owning more than one-lialf of the property assessed; that the railroad commissioners of the town issued $100,000 of bonds to the railroad company, receiving in exchange that amount of stock, which bonds were purchased by defendants in good faith and for value; that plaintiff demanded a return of the bonds, but did not offer to surrender or transfer the stock.</p> <p>There was no complete revocation of the consents. (People ex rel. Yawger v. Allen, 52 N. Y. 538 ; Howland v. Eldridge, 43 id. 457.) A partnership as between partners may be dissolved, and yet either partner has a continuing right as to strangers to bind his co-partners. ( Wardwell v. Haight, 2 Barb. 549; Van Eps v. Dillaye, 6 id. 244; City Bk. of Brooklyn v. McChesney, 20 N. Y. 240.) The authority of an agent may be revoked as between him and his principal, and yet the principal be bound by the agent’s subsequent acts in favor of third persons! (Farmers and Mechanics’ Bk. v. Stickney, 8 L. R. 161; Lefler v. Field, 50 Barb. 407 ; Edwards v. Shafer, 49 id. 291, Morey v. Webb, 58 N. Y. 350; Beard v. Kirk, 11 N. H. 397; Fellows v. Hartford & N. Y. S. Co., 38 Conn. 197; Story’s Eq., § 470 et seq.) It was necessary that the revocation should be filed. (Town of Venice v. Woodruff, 62 N. Y. 462.)</p> <p>A tax payer who had once given his consent had no further right in the matter. (People v. Mitchell, 35 N. Y. 555.) There is no remedy provided for the correction of errors into which the assessors may fall in respect to matters referred to their determination. (Howland v. Eldridge, 43 N. Y. 457.) Although the authority of an agent, as between himself and his pripcipal, be revoked, yet the latter is bound by the agent’s subsequent acts in favor of third parties, who have not been notified of such revocation. (Farmers and Mechanics' Bank v. Stickney, 8 Law, 161; Story’s Equity, § 470 et seq. ; Storey v. Webb, 58 N. Y. 350; Lefler v. Field, 50 Barb. 407; Edwards v. Schaffer, 49 id. 291.) The failure of the town to tender to the defendants the stock for which these bonds were issued is a bar to the prosecution of the action. (Story’s Equity Jur., §§ 1520-1524; Tripp v. Cook, 26 Wend. 143, 160; Smedberg v. More, id. 238, 247; Hazel v. Dunham, 1 Hall, 655, 658; Browne v. Howe, 2 Barb. 586, 595; Taylor v. Fleet, 4 id. 95, 103; Bench v. Sheldon, 14 id. 66, 71; Munn v. Worrall, 16 id. 509, 583; Greenleaf v. Mumford, 19 Abb. Pr. 469, 476; Stanley v. Gadsby, 10 Pet. 521.)</p> <p>The affidavit of the assessors is not conclusive evidence of the fact that a majority of the tax payers have given their consent to mortgage the .town. (People ex rel. Martin v. Brown, 55 N. Y. 180; Horton v. The Town of Thompson, 71 id. 513; This Plaintiff v. These Defendants, 75 N. H. 397-406; The People v. Bachullor, 53 N. Y. 128.) The revocations should have been deducted from the consents hy the assessors, in determinating the question whether the requisite number of consents had been procured. (People ex rel. Yawger v. Allen, 52 N. Y. 538; 75 id. 397.) The claim of the defendants that the plaintiff cannot succeed because it did not tender the stock issued by the railroad company to the commissioners at or before the commencement of the action is untenable. ( Weismer v. Village of Douglas, 64 N. Y. 91; 75 id. 397-407; Schermerhorn v. Talman, 14 id. 93, 129, 142.) The certificate was never any thing but evidence of the ownership of a proportionate part of the property and franchises of the company. (Arnold v. Ruggles, 1 R. I. 105; Angell on Corporations, § 562.) The railroad commissioners are not the town, or even officers of the town, and their acts or omission to act in no way affected it. (Horton v. Thompson, 71 N. Y. 513.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order, made February 10, 1880, which affirmed a judgment in favor of defendant, entered upon a decision of the court, after verdict taken by direction of the court for plaintiff with leave to either party, to enter judgment according as it should thereafter be • determined by the court. (Reported below, 20 Hun, 188.)</p> <p>The nature of the action and the facts are set forth sufficiently in the opinion.</p> <p>The act to abolish imprisonment for debt (chap. 300, Laws of 1831) was, by implication, a repeal of article 5, chapter 5, title 1, part 2, Revised Statutes. (Hickman v. Pinckney, Court of Appeals, June 1, 1880.) It is not consistent that a statute should remain in force which could shield the fraudulent debtor from arrest under section 179 of the Code of Procedure, and thus'nullify the later legislation. (Code of Procedure, § 468.) The fifth article afforded relief to the insolvent debtor from the apprehension of arrest, and from imprisonment on the copias [see §§ 10 and 11], but did not contemplate a case where the debtor had been charged in execution. (Art. 7, §§ 21, 22.) The whole proceeding before the county judge was, therefore, wholly unwarranted and void. (Speer v. Wandell, 1 Comst. 149; Jefferson Co. Bank v. Powell, 3 How. Pr. 113; Matter of Walter Brady, 69 N. Y. 215; People ex rel. Galsten v. Brooks, 40 How. Pr. 165; Spencer v. Barber, 5 Hill, 568.) The county judge had no general jurisdiction to discharge Maxwell from the execution. The recitals in the order were not proof of the facts recited to confer jurisdiction. (McElroy v. Mancius, 13 Johns. 120; Burnett v. Burch, 1 Den. 141; Bullymore v. Cooper, 46 N. Y. 575; Frees v. Ford, 6 id. 175; Simmons v. De Barre, 8 Abb. Pr. 269.) The discharge does not contain a recital of facts necessary to confer jurisdiction. (Castellanos v. Jones, 5 N. Y. 164; Hal v. Sweet, 40 id. 97; 2 R. S., chap. 5, p. 35, art. 7; Otis v. Hitchcock, 6 Wend. 433 ; Bullymore v. Cooper, 46 N. Y. 246; Matter of Brady, 69 id. 215; People v. Abel, 3 Hill, 109; People v. Reed, 5 Den. 554; Matter of Prime, 1 Barb. 296.) The inventory was evasive, and not “ true and full.” (Bullyman v. Cooper, 46 N. Y. 246; Stanton v. Ellis, 12 id. 575; People v. Bancker, 5 id. 106.) The omission to state the consideration for the drafts on the Metropolitan Bank was fatal to the proceedings. (Slidell v. McCrea, 1 Wend. 156; McNair v. Gilbert, 3 id. 344; Rockwell v. McGovern, 69 N. Y. 294; Doicken v. Ahlbon, 2 Abb. N. C. 375; Stanton v. Ellis, 16 Barb. 319; 3 Cow. 59; Morrow v. Freeman, 61 N. Y. 515.) The judge had no jurisdiction without publication of the contents of the order, and proof of its publication. (See pp. 11, 22, 23, §§ 3, 4, art. 5, and § 10, art. 3, 2 R. S; 2 R. S., chap. 5, art. 3, 5, §§ 3, 4, 10, pp. 11, 22,23; People v. Grey, 19 How. Pr. 238; Stanton v. Ellis, 19 Barb. 319.) The appellants were entitled to judgment on the verdict. It was error for the justice to reserve the case fo.r his own consideration; he had no power to do it. (Sayles v. Sims, 73 N. Y. 551; Purchase v. Mattison, 25 id. 212; 1 Bla. Com. 60, 81, etc. ; Sedgwick on Statutory and Constitutional Law, 31, 195, 209, 212, etc. ; Tonnell v. Hall, 4 Comst. 140; new Code, § 158, subd. 2.)</p> <p>Article 5, chapter 5, title 1, part 2, Revised Statutes, had not been repealed when Maxwell made his application under it. (Code of Procedure, § 178 ; Code of Civil Procedure, §§ 2147-2218.) The discharge was conclusive evidence of the proceedings and facts therein contained. (Code of Civil Procedure, §§ 2181, 2196, 2197; Stanton v. Ellis, 2 Kern. 575; Hart v. Dubois, 20 Wend. 236 ; People v. Warren, 5 Hill, 440; Hayden v. Palmer, 24 Wend. 366; American Flask & Cap Co. v. Son, 3 Abb. [N. S.] 333.)</p>

(Reported below, 20 Hun, 349.) The nature of the action and the material facts are set forth in the opinion. Where accommodation paper is diverted, it can- only be enforced by a bona fide holder for value.

Charles Donohue, justice of the Supreme Court, which dismissed a writ of habeas corpus issued on behalf of James Jourdan, the relator, and remanded him to custody; which order was brought up for review at General Term by writ of certiorari ¡ the order appealed from dismissed said writ.

(Reported below, 21 Hun, 349.) This action was against defendant, as sheriff of the county of Oneida, for ah alleged escape of one John Tillinghast, who had been received into his custody, under four several final precepts or mandates issued by the surrogate of Oneida county, in a proceeding originally commenced by John Boyle, as a creditor of one Boss Taylor, deceased, and of whose estate the said John Tillinghast had been appointed administrator, with the will annexed.

(Reported below, 22 Hun, 33.) This action was brought to recover damages for alleged negligence causing the death of James M. Loitus, plaintiffs intestate. The facts are set forth sufficiently in the opinion. He who has what is more than ordinarily dangerous must use more than ordinary care to prevent injury to others thereby.

Bagley, Jr., pay or deliver over to James T..01well, receiver appointed herein, the rents and securities collected and received by himself, or his agent or agents, of Nichols & Pennoyer, or either of them, for rent of the premises described in the complaint as the dock property, or the equivalent of such rent or securities in money.” _ (Beported below, 12 Hun, 17.) This action is brought by the plaintiff to foreclose two mortgages executed by the defendants, David Vrooman…

<p>It is competent for a person against whom supplementary proceedings for the collection of a tax have been instituted, ex parte, under the statute of 1867 (chap. 361, Laws of 1867) to move for a dissolution of the order for his appearance and examination on the ground that it was improvidently granted.</p> <p>Where, upon such motion, the question as to whether the person proceeded against was a resident of the county was in dispute, and the evidence in relation thereto was conflicting, held, that the question was not reviewable here. (Code of Civil Procedure, § 1337.)</p>

This action was first tried before a referee, and from the judgment in favor of the plaintiff, entered upon the referee’s report, the defendant appealed to the general term of the supreme court of the first department, which affirmed the judgment with costs. The defendant then appealed to the court of appeals, and a new trial was ordered (see 77 N. Y., 320), with “ costs to abide the event.” Upon the second trial the plaintiff again succeeded.

<p>In an action to foreclose two mortgages, it appeared that there was a prior mortgage upon the premises, the beneficiary owner whereof, in pursuance of an agreement under which a fourth mortgage was executed and accepted, covenanted that said mortgage should .have priority of lien over his mortgage, as if it had been previously executed and recorded. The lien of the first mortgage was subsequently discharged. Held, that the covenant did not give the fourth mortgage a priority of lien over plaintiff’s mortgages ; that the intent of the parties to the agreement under which the fourth mortgage was taken was not to place that mortgage ahead of plaintiff’s mortgages, or to give its owner an interest in the first mortgage, but simply that the liens prior to the fourth mortgage should only be the amount of plaintiff’s mortgages; and that the agreement was fully satisfied by a discharge of the first mortgage.</p> <p>It was stipulated in plaintiff’s mortgages which were executed prior to the passage of the act (chap. 538, Laws of 1879) reducing the rate of interest to six per cent, that the principal sum should bear interest at seven per cent until paid. By the decision and judgment entered thereon, interest was directed to be paid on the amount found due, from the date of the decision, at the rate of seven per cent. Held, error; that after entry of judgment the mortgages were merged therein, and thereafter plaintiff was entitled to interest, not by virtue of the mortgages, but of the judgment and so, that the interest should have been at the lawful rate.</p> <p>Tayl&r'v. Wing (23 Hun, 233), reversed.</p>

<p>Where, on the trial of an indictment containing different counts, there is a specific verdict of guilty on one count and the veydict is silent as to the other counts, it is equivalent to an acquittal on those counts, and a judgment on the verdict is as to them a bar to further prosecution.</p> <p>Upon a reversal of the conviction the trial and conviction are not a bar to a new trial upon the count on which the verdict of guilty was rendered; but the reversal does not disturb the verdict of acquittal upon the other . counts.</p> <p>An indictment contained two counts, one charging burglary and larceny, the other the receiving of stolen goods with knowledge ; there was no separate count for burglary or larceny. The prisoner’s counsel, on trial, moved to strike out the count “for burglary ” because of failure of proof; this was granted ; he then moved to quash the count “ for larceny,” which was denied, the question df larceny was submitted to the jury without objection and the prisoner was convicted thereof. The conviction was reversed on writ of error and a venire de nova ordered. Held,, that the effect of the decision upon the motion to strike out the count for burglary was simply to hold that the prisoner could not be convicted, on the evidence, of burglary, and to strike out so much of the count as charged that offense ; that the new trial must be had upon the same indictment; but that upon the new trial the prisoner could only be tried for larceny.</p> <p>The trial was had after the passage of the act of 1876 (chap. 182, Laws of 1876) declaring that persons jointly indicted shall be competent witnesses for each other. One L. who was jointly indicted with the prisoner was called as a witness on his behalf. His testimony was objected to and refused. Held,, error.</p> <p>Some of the stolen property was found in the prisoner’s possession; lie claimed that he purchased it, and offered to prove what was said as to the mode of obtaining the property at the time of the alleged purchase by the men of whom the alleged purchase was made. This was objected to and excluded. Held, error; that while not competent to prove that the alleged vendors came by the property in the mode asserted, it was relevant and competent upon the issue of guilty knowledge.</p> <p>Wills v. People (3 Park. Or. 478), People v. Panels (id. 385),overruled.</p> <p>The prosecution proved the finding at the house of the prisoner other goods than those named in the indictment, and there was testimony tending to prove that those other goods had been stolen and received with guilty knowledge. The prisoner offered to show, by his own testimony, that he purchased a part of "these goods at L., and that he asked the persons of whom he bought them to go and look at and identify them. This was objected to and rejected. Held, that if the proof given by the prosecution was competent, such testimony was erroneously rejected; that the prisoner had the right to meet the evidence against him by testimony tending to show that he came by the property honestly.</p> <p>The act of 1877 (chap. 167, Laws of 1877) in relation to criminal offenses committed on railroads, providing that for any crime or offense committed within this State- * """ * * “ in respect to any portion of the lading or freight of any railroad train or car,” an indictment may be found and tried in any county through which the train or car shall have passed in the course of that trip, includes the offense of receiving with guilty knowledge goods stolen from a railroad train, and an indictment therefor may be found and tried in any county through which the train passed.</p>

(Reported below, 23 Hun, 159.) This action was brought to recover damages for the death of James Knupfle, plain tiff’s intestate, alleged to have been caused by defendant’s negligence. It appeared that the driver of one of defendant’s ice wagons, which was drawn by mules, left them standing upon Atlantic avenue, in the city of Brooklyn, unfastened and unattended, while he went into'a store.

These were appeals from orders of the General Term of the Supreme Court, in the third judicial department, made May 4, 1880, modifying and affirming as modified orders of the Special Term, in each of the causes above entitled, which required the defendant to furnish a bill of particulars. (Reported below, 22 Hun, 167.) Each action was brought upon a policy of insurance issued by the defendant upon the life of Walton Dwight, plaintiff’s intestate.

This action was brought to recover damages for the alleged taking and conversion of a quantity of furniture. In March, 1857, George W. Edge, defendant’s intestate, leased a hotel, situate in Jersey City, to one Moses Bean, for five years from May 1, 1857. Bean entered into possession of the demised premises; he had in the hotel the furniture in question. On the 1st day of November, 1860, Bean let the hotel, and the furniture in it, to one Henry Gr.

(Reported below, 20 Hun, 70.) This action was brought by plaintiffs as executors of the will of Erancis B. Hegemen, deceased, to obtain a construction of certain clauses in his will. The only one in question here was the seventh clause which is set forth in the opinion, with the facts pertaining thereto. The word “ children ” as used in the will is to be construed as meaning issue.

• Appeal from order of the General Term of the Supreme Court, in the fourth' judicial department, made January 6, 1880, which reversed a judgment in favor of plaintiff, entered upon a verdict, (Reported below, 19 Hun, 519.) This action was brought by plaintiff as assignee of one Ward H. Van Housen, for the alleged taking and conversion of a stock of goods which had been levied upon by defendant as sheriff of Steuben county, under and by virtue of executions against said Van…

<p>The jurisdiction of Quasi judicial officers to make a decision in any case is always open to inquiry, and the decision may be attacked collaterally for want of jurisdiction.</p> <p>There can be no bona fide holder of town bonds within the meaning of the law applicable to negotiable paper, as they can only be issued by virtue of special authority conferred by some statute, and are only binding upon the town when issued in the way pointed out by the statute.</p> <p>All persons, therefore, taking such bonds are chargeable with knowledge of the statute under which they were issued, must see to it that its provisions were complied with; and in the absence of some provision making the action of the officer or agents of the town binding and conclusive, the fact that the holder of such bonds purchased for value and in good faith, does not preclude tho town from showing that they were illegally issued.</p> <p>The decisions. of the Federal courts holding a contrary doctrine held not to be controlling.</p> <p>Under the provisions of the act of 1866 (§ 2, chap, 898, Laws of 1866) authorizing certain towns to subscribe for the stock of the N. T. & O. M. E. E. Co., and to issue bonds for moneys borrowed to pay therefor, provided the consent in writing of a majority of the tax payers, owning more than one-half of the taxable property of. the town shall first have been obtained, and provided' that the fact that such majority has been obtained, “ shall be proved by affidavit, in writing,” of one of certain specified town officers, and declaring that such affidavit “ or a certified copy thereof shall be evidence of the facts therein contained,” the affidavit is not conclusive but only prima facie evidence of the facts and may be disputed.</p> <p>Accordingly held, in an action to. recover the amount due upon certain interest coupons cut from bonds issued by railroad commissioners appointed for defendant under said act, and which had been purchased for value and in good -faith, that defendant was not precluded by an affidavit of its assessor from showing that in fact the consent of a majority of the tax payers of the town had not been obtained.</p> <p>People v. Mitchell (85 N, T. 551), Bank of Borne v. Village of Borne (19 id. 20), distinguished.</p> <p>Caguán v. Town of Hancock (22 Hun, 201), reversed.</p>

This action was brought upon a contract dated January 26, 1874,’made between Joseph F. Hill, plaintiff’s assignor, and Morris Brown and Nelson Thompson, the original defendants herein. Brown haying died during the pendency of the action, his executors were substituted as defendants in his stead. The facts are sufficiently set forth in the opinion. The contract sued upon was illegal and void as against public policy.

(Mem. of decision below, 17 Hun, 135.) The case is reported upon a former appeal in 57 H. Y. 275. This action was brought to recover the purchase-price of a quantity of hops alleged to have been sold by Richard Hunter, plaintiffs’ testator, to defendants.

(Reported below, 9 Hun, 418.) This action was commenced in March, 1870, by James L. Mitchell, the testator of the present plaintiff, to have it adjudged that certain leases obtained by defendant during the existence of a partnership between him and said Mitchell were taken for the benefit of the partnership, and were held by defendant as trustee, etc. It is reported on the former appeal in 61H. Y. 123.

(Reported below, 22 Hun, 95.) The nature of the action and the material allegations of the complaint are set forth in the opinion. The cause of action set out in the complaint is within the statute (Laws of 1875, chap. 49), so as to sustain a suit by the people under that statute.

This action was brought upon a judgment of the Circuit Court of Warren county in the State of Mississippi. That action as appeared by the record was brought and judgment recovered by William R. Greene and others, composing the firm of William R. Greene & Co., for the use of plaintiff upon a policy of insurance issued to that firm by defendant. ) The further material facts appear in the opinion.

<p>A broker’s note or memorandum of sale of goods, containing the names of the vendor and vendee and the terms of sale, and delivered to both par-. ties makes a valid contract of sale within the statute of frauds.</p> <p>In an action to recover the purchase-price of goods alleged to have been sold, to arrive, by plaintiffs to defendants, through a broker, it appeared that the broker entered the contract of sale in his hook, made two copies thereof, one of which he delivered to the plaintiffs and sent the other by his clerk to ,the defendants in the usual course of business ; that snbsequently the broker had a conversation with one of the defendants as to the purchase, and informed him that he had executed the broker’s note; that after the arriva) of tlig goods defendants requested plaintiffs to enter the goods at the custom house in bond, which they did and then sent defendants an order for the goods and an account of the sale, to which no objection was made; that defendants made arrangements with ware-housemen to store the goods, stating they had bought them, and that subsequently they rejected the goods on the ground that the quality was inferior to that contracted for. The defendants did not deny, as witnesses, the receipt of the broker’s note. Held, that the evidence of such receipt was sufficient to require the submission of that question to the jury, and that a nonsuit was error.</p>

Appeal froln judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made April 22, 1880, which affirmed a judgment in favor of defendants, entered upon a decision of the court on trial, at Special Term. The nature of the action and the material facts are stated in the opinion. The act of 1853, chap. 502 was constitutional.

(Reported below, 21 Hun, 240.) This action was brought by plaintiff, as superintendent of the insurance department of the State of Hew York, to foreclose a mortgage executed by defendant Hall and wife, to the Mutual Protection Life Assurance Society, on June 29, 1871. The mortgage and accompanying bond were assigned in October 1811, to the then superintendent of said department to be held by him under-the insurance act, as security for the policy-holders of the mortgagee.

' The objections raised and the facts pertinent thereto appear in the opinion. The effect of stating in the proposals certain prices for certain items is not to destroy competition, even as to those items, but simply to transfer it to those items which are directly submitted to competition. (Matter of the N. Y. Protestant Epis. School, 75 N. Y. 324, 327.) The court has power to reduce instead of vacating an assessment where justice is satisfied by a reduction.

<p>The provision of the National Guard Act of 1870 (§ 253, chap, 80, Laws of 1870), entitling a member of the National Guard to an exemption from the assessed valuation of his property to the amount of §1,000, during the period of his military service, was repealed by its omission from the section as amended in 1875 (§ 59, chap. 223, Laws of 1875).</p> <p>. No contract relation existed between the State and a member of the National Gúard who had enlisted prior to the passage of the repealing act and whose term of service had not then expired, which would prevent it from taking effect as to him ; he enlisted subject to the right of the State at any time to modify or repeal the exemption, and upon the repeal his right to the exemption, as to all subsequent assessments, ceased.</p>

” (Reported below, 22 Hun, 472.) This order is appealable. (Ins.

, Eighth avenue, in the city of Hew York. The grounds of the motion appear in the opinion. . The omission to award damages .for injuries sustained by reason of the change of grade was a substantial error for which the assessment should be vacated. (Laws of 1852, chap. 52, § 3, p. 47 ; People v. Green, 64 N. Y. 606 ; People ex rel.

Cogér, a purchaser upon sale under judgment herein, to complete his purchase. (Reported below, 24 Hun, 202.) This action was brought to foreclose a mortgage. Judgment of foreclosure and sale was perfected, and upon the sale said Coger became the purchaser, but refused to complete his purchase. The ground of the refusal and the facts pertinent thereto appear in the opinion.

in favor of plaintiff entered upon a decision of the court on trial at Special Term and granted a new trial. (Reported below, 14 Hun, 537.) • This action was brought to set aside an assignment of a judgment to defendant Braniff of an action to foreclose a mortgage made by the plaintiff herein, and also to set aside a sale under said judgment, a deed on such sale to defendant Garrett, a judgment for a deficiency and to enjoin Braniff from enforcing said foreclosure judgment.

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made on the second Tuesday of June, 1880, which affirmed a judgment in favor of plaintiffs, entered upon a verdict, and affirmed an order denying a motion for a new trial. (Mem. of decision below, 21 Hun, 211.)</p> <p>This action was brought to recover damages for the alleged talcing and conversion of a quantity of personal property consisting of tools, machinery and other property used in the business of manufacturing agricultural implements, which property had been" levied upon by defendant, under and by virtue of an execution against Linus G. Steele, plaintiff’s husband.</p> <p>The facts appear sufficiently in the opinion.</p> <p>As matter of law, the Steele mortgage was rendered fraudulent and void by the. agreement between the mortgagor and mortgagee, allowing the latter to go on and sell the property mortgaged, make it up into agricultural implements, and use and en joy the proceeds for his own purposes. (Southard v. Pinckney, 72 N. Y. 424; Edgell v. Hart, 9 id. 213, 216; Yates v. Olmsted, 56 id. 632; Russell v. Winne, 37 id. 593; Chatham Nat. B’k v. O'Brien, 6 Hun, 231; Ford & Rockwood v. Williams, 13 N. Y. 577; Griswold v. Sheldon, 4 id. 581; Dutcher v. Swartwood, 15 Hun, 31; Wood v. Lowry & D., 17 Wend. 492; Benedict & O. v. Smith, 10 Paige, 126.) The original mortgage never having been refiled it ceased to be valid as against the creditors of the mortgagor one year from the date of filing. (3 R. S. [6th ed.] p. 144, § 12, marg. p. 136.) To avoid the effect of a failure to file a copy of the chattel mortgage there should be an actual change of possession, not a constructive possession, nor a paper change, nor a symbolical change. (Topping v. Lynder, 2 Rob. 488; Porter v. Parmele, 52 N. Y. 185, 189; Bullis v. Montgomery, 50 id. 352 ; Fitch v. Humphrey, 1 Denio, 163 ; Hale v. Sweet, 40 N. Y. 97, 101; Crandall v. Brown, 18 Hun, 463 ; Ely v. Comley, 19 N. Y. 496; Camp v. Camp, 2 Hill, 628; Hanford v. Archer, 4 Hill, 173, 297; Otis v. Sill, 8 Barb. 102, 109, 110 ; Benedict v. Smith, 10 Paige, 126 ; Thompson v. Van Vecten, 27 N. Y. 568; Wood v. Lowry, 17 Wend. 492.)</p> <p>It is now well settled that the legal effect of a chattel mortgage is to vest in the mortgagee the entire legal title to the property mortgaged, subject only to be defeated by the performance of the condition by the mortgagor. (Thomas on Mortgages, p. 442 ; Mattison v. Baucus, 1 Comst. 295; Bragelman v. Dane, 69 N. Y. 69; Butler v. Miller, 1 Comst. 496 ; Hill v. Beebe, 3 Kern. 565.) Under the danger clause,” in this mortgage, the mortgagee had an absolute and legal right to take possession of the property at any time he deemed himself unsafe, and for his own interest, and thus bar the equity of redemption even before the debt became due. (Smith v. Post, 1 Hun, 516; Huggans v. Fryer, 1 Lans. 276; Chadwick v. Lamb, 29 Barb. 518; Hill v. Beebe, 1 Kern. 565; Peck v. Milk, 20 Barb. 616; Nelson v. Drake, 14 Hun, 465.) By the breach in the condition of the mortgage, the legal title to the property in question became absolute in the mortgagee, and the mortgagor thenceforth can claim no legal rights thereto. (Sickles v. Mead, 2 Lans. 222; Lewis v. Palmers, 28 N. Y. 271; Hall v. Sampson, 35 id. 274; Judson v. Easton, 58 id. 664; Campbell v. Berch, 60 id. 214.) The plaintiff, under the assignment given to her by the mortgagee, possessed every right which the mortgagee had. (Campbell v. Berch, 60 N. Y. 214; Nelson v. Drake, 14 Hun, 465; Rich v. Milk, 20 Barb. 616; Alexander v. Hard, 64 N. Y. 228.) At the time the levy was made the judgment debtor had no interest in the property in question, and the. sheriff was a trespasser. (Campbell v. Grant, 39 Barb. 606 ; Judson v. Easton, 58 N. Y. 664; Butler v. Miller, 1 Comst. 496; Powell v. Preston, 1 Hun, 513; Galen v. Brown, 22 N. Y. 37.) The respondent having taken possession of the property by virtue of the mortgage, the debt was extinguished, and she lost nothing by omitting to refile the mortgage. A refiling is only necessary when the debt, or some part thereof, remains unpaid. (Levin v. Russell, 42 N. Y. 251; Otis v. Sill, 8 Barb. 102; Ely v. Canly, Sheriff, etc., 19 N. Y. 496; Porter v. Parmely, 52 id. 185.) Even if mortgagee had consented to have some of the machines sold after the execution of the mortgage, this would not make the mortgage void. It would do no more than discharge the lien on the goods actually sold. (Yates v. Olmstead, 56 N. Y. 632; Conklin v. Skelly, 28 id, 360.)</p>

These were appeals from two orders of General Term of the Supreme Court, one of which reversed an order of Special Term which directed the retaxation of costs of appeal to this court; the other… Held: that the order giving each respondent costs of appeal to this court was erroneous.

Mem. of decision below (19 Hun, 630). James Hack, a resident of Monroe county, died in January, -18Y7, leaving a will and codicil, and leaving his widow and three children, by a former wife, him surviving. The will gave his estate, real and personal, to his wife for life, remainder to her and his daughter. The daughter having subsequently died, the codicil was executed which gave the estate to his wife absolutely.