Volume 86 — New York Reports

<p>Appeal from order of the General Term of the Supreme Court, in the second judicial department, made December .14, 1880, affirming an order of Special Term granting a temporary-injunction herein, restraining defendant from maintaining tollgates upon its road and from collecting toll, “ or interfering with or in any way interrupting the free passage or travel of any persons on said road.” (Reported below, 23 Hun, 173.)</p> <p>The nature of the action and the material facts appear in the opinion.</p> <p>The provision of section 5 of chapter 135, Laws of 1876, that “the corporate existence of such plankroad company shall not be extended except in accordance with this act,” is a limited and special, not a general restriction. (Skinner v. Anderson, 12 Barb. 652; McClusky v. Cromwell, 11 N. Y. 601; Benton v. Wickwire, 54 id. 226; 49 id. 456; Waller v. Harris, 20 Wend. 461; Chamberlain v. Transportation Co., 45 Barb. 218; P. R. Co. v. Morely, 23 N. Y. 556; People, ex rel., etc., v. Brinkerhoff, 8 id. 264; Gas-Light Co. v. Mayor, 3 Rob. 100; 33 N. Y. 309; 13 How. 441; Bowen v. Lease, 5 Hill, 226, 227; Matter of The Evergreens, 47 N. Y. 216.) Chapter 135 of Laws of 1876 “ authorizing plankroad companies, etc., to extend then' charters,” by reasons of the exceptions contained in section 6, is a local or private act, and as such violates sections 16 and 18 of Art. 3 of the Constitution, and is therefore void. (People v. O'Brien, 38 N. Y. 194, 195; People v. Brinckerhoff, 68 id. 265; People v. Sup'vrs of Chautauqua, 43 id. 19; 68 id. 383; Matter of Flatbush, 60 id. 407; Huber v. The People, 49 id. 134.) Excepting certain counties from its operation is a distinct provision and should, in any event, have been noted in the title. (Matter of Flatbush, etc., 60 N. Y. 407; People v. Sup'vrs of Chautauqua, 43 id. 23; Gaskin v. Meek, 42 id. 186; People v. Allen, id. 405; Town v. F. & B. P. R. Co., 22 Barb. 635; Huber v. People, 49 N. Y. 134; Matter N. Y. E. R'way Co., 70 id. 336; People v. Com. of Highways, 53 Barb. 70.) Chapter 187, Laws of 1880, is applicable to this case, and enabled defendant to take such proceedings as a “business corporation,” and fully validates its proceedings. (Moore v. Mausert, 44 N. Y. 332; Dash v. Van Kleeck, 7 Johns. 486; People v. Sup’vrs of Essex, 70 N. Y. 236; Hudler v. Golden, 36 id. 446; Benton v. Wickmore, 54 id. 229; People v. Sup'vrs of Col. Co., 43 id. 136; Matter of E. R'way Co., 70 id. 338; Broom’s Legal Maxims, 29, 30; 16 Barb. 51; 3 Den. 374; 8 Barb. 502; 13 N. Y. 299; Town, etc., v. Cooley, 58 id. 116; Tribune, etc., v. Mayor, 48 Barb. 240.) The act of May 6, 1880, in so far as it permits any existing corporation, etc., embracing plankroad companies, to come under the “ Business Corporation Act,” and avail itself of its provisions (one of which is the process for voluntary renewal), repeals, by implication, section 5, chapter 135 of Laws of 1876, requiring as claimed the consent of boards of supervisors, to the extension of plankroad charters in certain cases,-or it affords in any event a concurrent mode of effecting the same object. (P. R. Co. v. Morley, 23 N. Y. 556; People v. Brinckerhoff, 8 id. 264; 33 id. 309; 5 Hill, 226.) The order by throwing the road, especially the part owned by defendant in fee, open to public use, violates the legal rights of the defendant. (Heath v. Barnmore, 50 N. Y. 302, 308; Nicoll v. N. Y. & Erie R. R. Co., 12 id. 121; 5 Den. 389; Matter of P. E. School, 46 N. Y. 178.) When an act is purely local, the taint of unconstitutionally, if it exists at all, afEects and invalidates the entire act. (People v. Sup'vrs Chautauqua Co., 43 id. 10; 60 id. 407; 42 id. 186; id. 405; 49 id. 134; 70 id. 336; 53 Barb. 70; Wenzler v. The People, 56 N. Y. 516; Gaskin v. Meek, 42 id. 186; Kerrigan v. Force, 68 id. 385; People v. Willsea, 60 id. 507.)</p> <p>'The exercise of the right to maintain a public highway by a plankroad company is a “ franchise ” and such company is not a “ business corporation,” and therefore does not fall within the act of 1875. (Chap. 611; 2 Black, 37; 3 Kent, 458.) If the act of 1867 (Chap. 937) ever was intended to apply to plankroad companies, it has, so far as such corporations are concerned, been repealed by subsequent legislation. (Chap. 283, Laws of 1872; chap. 135, Laws of 1876; chap. 151, Laws of 1878; chap. 253, Laws of 1879.) This action was properly brought in the name of the people by the attorney-general, under section 442 of Old Code, subd. 3. Leave of the court was not necessary in' order to bring the action. (People v. Att'y- Gen., 22 Barb. 114.)</p>

This action was brought to compel a reassignment by defendant of a policy of insurance issued to plaintiff npon the life of her husband Aaron Brummer, which policy had been assigned by plaintiff to defendant as collateral security for a loan to her husband.

These are appeals by the plaintiffs and certain of the defendants from a judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made December 14, 1880, which affirmed a judgment entered upon a decision of the court on trial at Special Term. (Reported below, M3 Hun, 264.) The nature of the action and the material facts are stated in the opinion. and defendant Sarah A. Brintnall, appellants.

<p>The object and effect of the act of 1876 (Chap. 371, Laws of 1875), in relation to savings banks, was to prescribe a sole and complete rule for their existence, and the exercise of their powers. It applies to corporations then existing, and whatever right of action existed against their trustees for penalties or forfeitures under former statutes was terminated by it.</p> <p>The provision of said act (§ 33), declaring the trustees of savings banks who vote for the declaring and crediting of any interest or dividend in excess of the interest or profits earned, personally liable to the corporation for the amount of the excess, does not limit the interest, which may lawfully be voted for, to net profits. If the trustee votes for a dividend less than the whole amount of interest or profits earned, without any deduction therefrom for expenses, although the earnings have not been actually received, he does not, in the absence of fraud or bad faith, overstep his statutory duty, and is not liable to the penalty.</p> <p>Whenever a dividend is declared and credited to a depositor it becomes his property, to which he is entitled in preference to the creditors of the corporation.</p> <p>It seems that a trustee, in an action against him to recover the penalty, cannot avoid liability because the manner of voting, and of recording the vote prescribed by the statute was not followed; he can waive the direction, as it was made for his benefit, but cannot take advantage of the omission.</p> <p>The Y. Savings Bank, of which defendant was a trustee, in pursuance of the requirements of its charter (§ 6, chap. 388, Laws of .1869), at the opening of its bank, posted notices of the rate of interest to be paid by it upon deposits; and thereafter paid interest at the rate stated up to January, 1877. In an action brought by plaintiff, who was appointed receiver of said bank, in July, 1877, to recover the interest so paid, the referee found that the interest received from investments of the funds of depositors exceeded" the interest paid them, but that its expenses exceeded its earnings and income. No fraud or other misconduct, or want of ordinary care and skill was imputed to defendant. Held, that defendant was not liable; that the order of payment of the debts of the bank, and what portion of its profits the trustees might from time to time divide, related to its general business, which was left to the judgment of the trustees (§§ 4, 7), and as long as it was exercised in good faith in the due course of management, no common-law liability was incurred ; nor was there any injury to the corporation, so that in the light of the common law there was no rule by which damages could be assessed ; that no liability was imposed under the chapter of the revised charter in reference to moneyed corporations (1 R. S., chap. 18), to which by said charter the bank was made subject “ so far as applicable,” as the prohibition in said chapter against paying dividends to stockholders save from “ surplus profits ” has no application, the interest payable to depositors of savings banks not being dividends within the meaning of the statute, and as said statute prescribes the remedy for its violation; that if said chapter of the Revised Statutes ever had any force as applicable to savings banks it became inoperative after the passage of the said act of 1875; also, that no liability attached under the provision of the act last mentioned (§ 33), declaring the trustees of a savings bank, who vote for a dividend in excess of the interest or profits earned, liable to the corporation for the amount of the excess, as the interest paid was not in excess of that earned.</p> <p>Assessments were made and paid into the bank by the trustees, under a resolution adopted by the board to the effect that such assessments should be considered as loans on interest not to be returned to the payer until the expiration of one year, unless otherwise ordered by the board and the profits of the bank warrant it.” Held, that under the resolution the money advanced became payable absolutely at the end of the year, and before that time at the option of the bank, in case the profits warranted it; but that,- as, so far as it appeared from the pleadings and evidence the fund advanced was joint, and as there was no statement of an individual advance or loan by the defendant, he could not apply the general fund in discharge of any individual liability on his part,</p> <p>Hun v. Cary (82 N. Y. 65), Austin v. Daniels (4 Den. 300), F. Ins. Co. v. Jenkins (3 Wend. 130), Butts v. Wood (37 N. Y. 317), Gillet v. Moody (3 id. 479), Robinson v. Smith (3 Paige, 222), Cunningham v. Pell (5 id. 607), Com. Bank v. Union Bank (11 N. Y. 203), Osgood v. Laytin (3 Keyes, 521), People v. Sup'rs (4 Barb. 64), Vanderkar v. R. & S. R. R. Co. (13 id. 390), distinguished.</p>

This was an action of ejectment brought to recover a parcel of land in the city of New York, to which plaintiffs claimed title as heirs at law of Alpheus Sherman, deceased. The description contained in the deed, construed as to metes and bounds, in conformity with the intention of the parties, governs all other general descriptions and specifications therein.

(Reported below, 28 Hun, 293.) The nature of the action and the facts appear sufficiently in the opinion. A party who elaims to go behind a contract, and recover a right in opposition to it, on the ground of fraud, or other 'ground, must first -restore what he received through the contract. (49 N. Y. 623; 61 id. 145; 13 Barb. 641; 21 id. 82; 32 id. 171.) There is no point of view in which the plaintiff has or ever had any act to perform in relation to the collateral trust.

^This action was brought by plaintiffs, as judgment creditors of defendant John J. Bate, to reach certain stock of the Bate Refrigerating Company issued to defendant Harriet R. Bate, the wife of said John J. Bate. The court found in substance that while Bate was indebted to plaintiffs, he was the owner of certain inventions for refrigerating purposes, for one of which he held' letters-patent.

<p>Where an annual report is filed by a manufacturing corporation which in form complies with the requirement of the Manufacturing Act (§ 12, chap. 40, Laws of 1848), the trustees are not subject to the liability imposed by that act for a failure to file a report, although the one filed is untrue.</p> <p>If the report filed be untrue, and constitutes a false representation, it renders liable only the trustees who signed it, and who signed knowing it to be false.</p> <p>It seems that where the report states the amount of capital paid in, without stating that a portion was paid for in property, as is required by the act of 1853 (Chap. 333, Laws of 1853) when such is the case, the fair import of the statement is that the payment was in cash, as was required by .the original act (§ 14).</p> <p>Such a report, therefore, where a portion of the stock was issued in payment for property, is false, on a strict view of the statute, and the misrepresentation is material within the meaning of the provision of said Manufacturing Act (§ 15), making the officers signing a report which is “ false in any material representation, ” knowing it to be false, liable for the debts of the company.</p> <p>The words, however, “ knowing it to be false ” mean a willful misrepresentation, with actual knowledge of its falsity, not merely such constructive knowledge as can be imputed from the presumption that the officer signing knew the law and comprehended the precise import of the language used, when construed with reference to the statute.</p> <p>To charge an officer, therefore, in such case, for the penalty so imposed, some fact or circumstance must be shown indicating that it was made in bad faith, or wilfully, not ignorantly or inadvertently.</p> <p>Defendant as trustee of a manufacturing corporation signed a report stating that §36,500 of capital had been paid in : in fact, to defendant’s knowledge when he signed, §25,000 of stock had been issued for property purchased, and only $11,500 paid in cash. In an action against him to enforce the liability imposed by said provision, held, that as it was not certified in terms that the amount stated had been paid in cash, and as it was only established by .a process of reasoning that the statement imported a representation that it was so paid, if defendant signed believing he had the right to treat all the stock issued as representing paid-up capital, and without intent to evade the statute or to defraud any one, he did not sign knowing the report to be false within the meaning of the provision ; and so, that, in the absence of any evidence warranting a finding of bad faith or intention to deceive, or any fraudulent purpose whatever, defendant was not liable for the penalty.</p> <p>The report as originally drawn stated : “ Stock issued $36,500,” the words “ stock issued” were erased and the words “ capital paid in” written over-them; this was in the handwriting of the notary before whom the report was verified by the secretary of the company. The notary, as a witness,, could not recollect whether the signatures to the report were on it when it was verified, but stated that from inspection of the paper he should say they were, that he recollected making some change and was positive-that he only saw the paper at the time it was verified. Defendant testified that to the best of his knowledge, when he signed the alteration had not. been made. The good faith of the transaction in the purchase of the-property was not attempted to be impeached. Held, that as the evidence-failed to show any motive or purpose to misrepresent or any guilty knowledge of the inaccuracy of the report, defendant was not liable.</p>

<p>Unless authorized by statute a railroad corporation organized under the General Railroad Act has no authority to transfer or lease its road.</p> <p>The A. & V. R. R. Co. having purchased the road and franchises of the A. N. R. R. Go. on mortgage foreclosure, leased a portion of the road, also its rolling stock, to the R. & S. R. R. Co. during the term of its corporate existence, with a proviso that in case any portion of said road east of the Hudson river should be used as a railway by it, or under it the lessee might terminate the lease on notice. Negotiations were then pending between plaintiff and the A. & V. R. R. Co., for the control, by the former, of the portion of the road thus referred to, in pursuance of which plaintiff removed the rails from so much of said róad as was not leased to the R. & S. R. R. Co., which were sold and the money paid over to the A. & V. R. R. Co. Plaintiff’s road was a short distance from and ran nearly parallel with said portion of the A. & V. Co.’s road so abandoned and they were competing roads. The negotiations finally resulted in a lease executed in 1863, from the A. & V. R. R. Co. to plaintiff, which recited the lease to the R. & S, R. R. Co., and-that the residue of the road “ has for a time ceased to be used for the transportation of persons and property ” and for a nominal consideration leased such residue, the lands upon which it was constructed, and all the alienable rights and privileges of the lessor pertaining to the demised premises, so long as the parties should continue to be railroad corporations, plaintiff covenanting to perform all acts required to be done in relation to the operation or maintenance of the demised line, and to indemnify the lessee against any non-performance or neglect, the indemnity, however, not to extend to any damage to the lessor accruing to it from the neglect to repair or operate, unless the repairs or operation should be required by judgment or order of court. The lessor reserved the right to abandon the demised road, to change its route, or terminate its road at the intersection with that of the R. & S. R. R. Co., if required to protect it and the R. & S. Co., in the enjoyment of that part of the road not leased to plaintiff. Plaintiff never operated that portion of the road so demised, and after its abandonment for railroad purposes those who owned the lands before they were taken by the A. N. Co. resumed possession, restored the fences and used them for farming purposes. In 1877, defendant located its road over, and proceeded to construct the same upon a portion of said lands. In an action to restrain the prosecution of the work, held, that the lease to plaintiff was not authorized, and so was invalid; that it was not a contract contemplated by the act of 1839 (Chap. 318, Laws of 1839), empowering railroad corporations to contract with each other “ for the use of their respective roads,”as it was not a contract for “use” within the meaning of that act.</p> <p>Also held, that in any view plaintiff was not entitled to the interference of "a court of equity; that if any of plaintiff's rights have been infringed, they are legal rights, and as the injury, was not shown to be irreparable, it should resort to an action at law; also that the spirit and policy of the provision of the General Railroad Act (§47, chap. 140, Laws of 1850), requiring railroads to complete and put in operation their roads within five years after their articles of association are filed, applied to the case and a court of equity could not countenance a substantial evasion of the statute.</p> <p>An injunction will not be granted when it will operate inequitably or contrary to the real justice of the case ; equity interferes in this manner to prevent irreparable mischief or to suppress a multiplicity of suits and vexatious litigations.</p> <p>Livingston v. Livingston (6 Johns. Ch. 497), N. F. I. Bridge Co. v. G. W. R. R. Co. (39 Barb. 324), Carpenter v. 0. & S. R. R. Co. (24 N. Y. 655), Wager v. T. U. R. R. Co. (25 id. 526), Williams v. N. Y. C. R. R. Co. (16 id. 97), Henderson v. N. Y. C. R. R. Co. (78 id. 423).</p> <p>The A. & V. R. R. Co. amended its articles of association in 1878, the effect of which if valid was to discontinue that portion of its line embraced in plaintiff’s lease. Beld, that the proceedings were not warranted by the act of 1854 (§ 13, chap. 282, Laws of 1854), as the location of the line or the points of termination were riot the same as either that of the R. & S, Co., or of the plaintiff, and as there was no agreement for the maintenance of the road as, is contemplated by the act; but held that plaintiff was not in a position to avail itself of this objection; as by a stipulation in the lease the right was -reserved to the A. & Y. Co. to terminate its line where it has undertaken to do so, and the plaintiff could not question its power.</p>

This action was brought by plaintiff, as assignee of Henry H. Lawrence, to recover back the sum of $2,000, paid by the latter upon a contract, the substance of which and the material facts are set forth in the opinion. When the defendant announced his positive refusal to convey after Hay 1, he rescinded the' contract;. such rescission was wrongful, and the vendee may elect to assent to such rescission and recover back his deposit.

<p>Depressions in the soil to which the surface water from adjacent lands naturally finds its way and is discharged into some natural outlet are not thereby made water-courses, nor does the doctrine of dominant and servient tenements apply as between them and the higher lands adjoining belonging tp other owners, so as to give the upper proprietor, the legal right as an incident of his estate to have such discharge uninterrupted.</p> <p>As a general rule the lower proprietor may lawfully, when acting in good faith and for the purpose of improving and cultivating his lands, fill them in, although by so doing he prevents the passage of the surface __water. thereon;to the injury of the upper proprietor.</p> <p>The States whose courts have adopted the contrary rule of the civil law and those which have adopted the rule above stf common law, named. i -- ’■''at of the</p> <p>The parties owned adjacent lots on a street near a v formation of the land was such that surface water f j snows would descend and accumulate in the street i¡ lot, and, in times of unusual accumulations, would j depression across defendant’s lot and other low land ant built a house on his lot, filled in the lot and gr in front of it, so as to cut off the flow of the surfa< ter there being an unusually large accumulation i upon plaintiff’s premises and into his cellar. In an ! itural melting plaintiffs jr a natural .ver. Defendip the sidewalk iter, and thereafne street, it flowed jtion to recover damages for the injuries held, that defendant was not liable.</p>

” (Reported below. 23 Hun, 317.) The board of fire commissioners had power, under the charter of 1873, to create bureaus other than those specified in the charter. (Laws of 1873, chap. 335, §§ 28, 77, 79.) The relator was illegally removed from office, and contrary to the provisions of section 28 of the charter of 1873. (People, ex rel.

<p>To constitute a valid oath, for the falsity of which perjury will lie, there must he an unequivocal and present act in some form in the presence of an officer authorized to administer oaths, by which the affiant consciously takes upon himself the obligation of an oath.</p> <p>The mere delivery of an affidavit, signed by the person presenting it, to the officer for his certificate, is not such an act.</p> <p>Upon the trial of an indictment charging perjury in swearing to an affidavit, defendant’s evidence tended to show that no words passed between the accused and the officer; that he simply handed the affidavit signed by him to the officer, who affixed his own name to the jurat. The affidavit began thus: “ C. O’Reilly, being duly sworn, saith.” The trial court charged in substance that these words, handed to the officer, were equivalent to a declaration by the prisoner that he swore to the ^ truth of the statements in the affidavit, and if the prisoner delivered the affidavit to the officer to have it certified as sworn to before him, ‘ ‘ intending thereby to declare * * * that by oath he intended to verify and did verify the statement subscribed by him,” and the officer regarding him as so declaring, signed the j urat for the purpose of evidencing the verification and delivered it to the prisoner who subsequently used it for the purpose intended; that then “the oath was duly and lawfully administered.” Held, error.</p>

These were cross-appeals from an order of the General Term of the Superior Court of the city of Kew York, made January 5, 1881, which affirmed an interlocutory judgment herein, and denied a motion on the part of defendant Spencer for a new trial on exceptions. The nature of the action and the material facts are stated in the opinion. The term “ legal representatives,” as used in the agreement, embraces both assignees and grantees.

This action was for the alleged wrongful conversion of certain goods. The following facts appeared : The firms of Wilhelm & Boerner, and Boas & Stern, were merchants in Berlin, Germany. Prior to August 2, 1876, Wilhelm & Boerner sold to Boas & Stern, on credit, three cases of goods, and delivered to them invoices of the same. The court, found the sale was completed.

The nature of the action and the material facts are stated in the opinion. The court erred in receiving proof of the value of the land. (Hogan v. Cregan 6 Robt. 138.) Assuming that the plaintiff has the right to maintain this action, defendants had the right to insist upon the application of the strict rule of law regulating the damages in such cases.

(Reported helow, 21 Hun, 205.) The action was for the alleged conversion of fifty barrels of whisky. The defendants were copartners under the name of E. J. Curley & Co., and as such carried on the business of distillers, and were the proprieters of a “ distillery bonded warehouse ” at Camp Helson, Kentucky.

<p>Plaintiff and the defendants, F. B. and 0. H. B., were formerly copartners They purchased for the use of the partnership, with moneys of the firm, certain real estate which was thereafter used for partnership purposes. In 1865 defendant W. M. B. became a member of the firm; the real estate continued to he used as before, and the firm expended a large amount in the improvement thereof. In 1869 plaintiff sold out his interest in the .copartnership, and withdrew from the firm; he executing to F. B. and 0. H. B. a quit-claim deed of his interest in the real estate, receiving their bond secured by a mortgage on said real estate for a portion of the purchase-price. The real estate was used and the business was continued by the other partners as before under, a new firm name, and that firm made payments out of the partnership funds upon the bond and mortgage, until the principal was reduced to $15,000. The new firm having become insolvent entered into a composition with their creditors; plaintiff signed the composition agreement, setting opposite his name, “ $5,380 unsecured,” saying at the time that $5,000 was for a deficiency upon a mortgage given him on his retiring from the firm. In an action to foreclose the mortgage in which the mortgagors were sought to be charged with any deficiency, defendants offered in evidence the composition agreement, and also to prove performance of said agreement with all their other creditors, and tenders of performance as to plaintiff; also that the latter said at the time he signed said agreement, that he estimated the deficiency on his mortgage would be $5,000, and that he signed the agreement for such deficiency, the balance of $380 being for a debt. The evidence was rejected on the ground that plaintiff’s claim was not against the firm. Held, error; that the evidence was competent, and if admitted would have constituted a bar to a judgment for a deficiency; that plaintiff’s claim was practically a firm debt and could be so treated by the parties, and plaintiff by signing in effect agreed not to enforce his claim for a deficiency.</p> <p>Baxter v. Bell, ([Mem.], 19 Hun, 367) reversed.</p>

' Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made the first Monday of March, 1880, which affirmed a judgment in favor of plaintiff, entered upon a verdict affirming an order denying a motion for a new trial. This action was brought to recover the purchase-price of a quantity of iron rails, spikes, bolts, etc., alleged to have been sold and delivered by one Culver to the defendant.

Plaintiff contracted to sell to defendants certain lands; the latter refused to complete the pmchase because of alleged defect of title.

This action was brought to set aside certain conveyances of real estate made to defendant by certain members of the firm of Duncan, Sherman & Co., and that the lands be adjudged subject to the lien of a judgment obtained by plaintiff against the members of a firm for a firm indebtedness, execution whereon had been returned unsatisfied.

The nature of the action and the material facts are stated in the opinion. , Plaintiffs were estopped by their acts and by the law from questioning the judgment. (2 Pars, on Cont. 238; Bigelow on Estoppel, 4, 82, note; Lane v. Clark, Clarke Ch. 309 and authorities cited, pt. 2, p. 41; and Chitty Pl. 354; French v. Shotwell, 6 Johns.

This action was brought by plaintiff, as receiver, appointed in supplementary proceedings, against Nelson McChesney, to recover an alleged surplus arising on sale of personal property under a chattel mortgage executed by said Kelson to defendant ; also a surplus arising on sale of property under an execution in favor of defendant’ against said Kelson.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made April 8, 1880, which affirmed a judgment in favor of plaintiff, entered upon a verdict. (Beported below, 20 Hun, 474.)</p> <p>This action was brought to recover damages for alleged breaches of covenants contained in a deed.</p> <p>In April, 1873, the defendant sold and conveyed to the plaintiff certain real estate in the city of Troy, consisting of a dwelling-house and lot, which was described by metes and bounds “ with the appurtenances,” the deed whereof contained the following convenant: “ And the said William Collins doth hereby covenant and agree to and with the said party of the second part, her heirs and assigns, that the premises thus conveyed in the quiet and peaceable possession of the said party of the second part, her heirs and assigns, he will forever warrant and defend against any persons whomsoever) lawfully claiming the same or any part thereof.” There was at that time a water-closet and bath-room in- said dwelling-hquse, connected by means of discharge pipes, with a sewer leading from the premises to and upon certain adjoining lands owned by one John P. Albertson, through which the water and filth from said water-closet and bath-room were discharged. The plaintiff went into possession under her deed. Afterward, Albertson sued the plaintiff, and recovered a judgment perpetually restraining her from such use of the sewer.</p> <p>Further facts appear in the opinion.</p> <p>Whatever right or easement belongs, as matter of legal right, to the thing granted, passes with it and nothing else. (2 Washburne on Real Property, 655, 667; Sparrows v. Kingman, 1 N. Y. 246; Whitney v. Allaire, id. 305.) Where no right exists by which a grantor can properly discharge water or refuse matter upon an adjoining lot, such appurtenant or easement does not pass with the land, notwithstanding the grantor may have in fact been wrongfully discharging water upon such adjacent lot which created a nuisance. (Wash. on Easements, 50, 51, 525; Lampman v. Milks, 21 N. Y. 77; Simmons v. Cloonan, 47 id. 3.) One of the essential qualities of an easement is, that there must be two distinct tenements, the dominant, to which the right belongs, and the servient, on which the obligation rests. (Wolf v. Frost, 4 Sandf. Ch. 87.) Am easement which is extinct, or which has no legal existence, though used de faato does not pass as an appurtenance. (3 Hilliard on Real Property, 514, § 40; Plant v. James, 5 Barn. & Adol. 79; 27 Eng. Com. Law, 191; Huttemeier v. Albro, 18 N. Y. 50; Crippen v. Morss, 49 id. 63; Philbrick v. Ewing, 97 Mass. 133; Booth v. Alock, L. R., 8 Ch. App. 663; Leach v. Schroeder, L. R., 9 Ch. App. 463.) If Collins fraudulently made the representations, as alleged, inrespeet to the right to the unrestricted use of the sewer, an action could not he maintained for breach of covenant for quiet enjoyment. The remedy would be an action for damages on account of the fraud or deceit practiced upon the grantee. (Wardell v. Fosdick, 13 Johns. 325; Whitney v. Allaire, 1 N. Y. 305.)</p> <p>Where a grantor sells real estate which cannot be used and enjoyed in the usual and customary way and as the parties intended and understood it was to be enjoyed, without continuing an existing use of a structure on another’s land visibly connected with the land sold, such easement must pass by the general word, “ appurtenances,” without a particular description. ' (Mott v. Palmer, 1 N. Y. 564; Adams v. Conover, 22 Hun, 424; Pettit v. Shepard, 32 N. Y. 97; Simmons v. Cloonan, 81 id. 559; Curtis v. Ayrault, 47 id. 73; Lampman v. Milks, 21 id. 505; Huttemeier v. Albro, 18 id. 48; French v. Carhart, 1 id. 96.)</p>

This action was brought to recover damages for the alleged conversion of a canal-boat. The material facts are stated in the opinion. The referee erred in holding that the defendants, by leaving the towing'bill in the hands of his attorneys for collection, authorized them to commit a trespass for the purpose of collection, or made themselves liable for such trespass.

The nature of the Special Term order and the material facts are stated in the opinion. The proceedings in this ease, after the adjudication of the defendant a bankrupt and the appointment of his assignees, and the assignment to them, were void as to the appellant’s right in the bankrupt’s estate.

On the 2d day of April, 1878, Quipp & Duke assigned their property to the defendant Eeimann in trust for the benefit of their creditors. He gave the bond required by statute (Laws of 1877, chap. 466, § 5), and the plaintiff, with one Mach, became sureties thereon.

This action was brought to recover damages for alleged negligence of defendant, causing the loss of a number of sheep while being transported over defendant’s road. The sheep were delivered to defendant at Cape Vincent to be transported to Albany, under a contract made by plaintiff with defendant and the New York Central Railroad Company, the portions whereof so far as material, as well as the material facts are set forth in the opinion.

This action was brought to foreclose a mortgage executed by defendant Bradley to the plaintiff, of all the mortgagor’s “ right, title and interest individually, and as a member of the firm of West, Bradley & Cary, in and to ” certain real estate described; “also all the engines, boilers, machinery, fixtures and other property ” in the buildings on the premises, described, “ which taken together make up the manufactories of said firm.” The mortgage was executed October…

(Reported below, 20 Hun, 377.) This action was brought for the partition of certain real estate, of which Samuel Horsworthy died seized. Said Horsworthy died in 1828, leaving a will, the clauses of which having any bearing upon the question in controversy are as follows: “ First. As the dower of my wife will be an ample provision for her, I direct that one-third of the rents or net income of my real estate be paid to her quarterly, in full satisfaction of her dower. “ Second.

This action was brought upon a promissory note, executed by the firm of Hyman & Mayer, of which firm the defendants, Hyman and Mayer were the members, payable to the order of the firm, and indorsed by it to defendant Kohn, who transferred the same to plaintiff.

This action was brought to recover the value of 688,000 cigars, sold by plaintiffs to defendant Richardson on. credit, which sale the plaintiffs alleged was induced by false representations on the part of defendants, made in pursuance of a . fraudulent conspiracy on the part of defendants to cheat and defraud the plaintiffs. The material facts are stated in the opinion.

• The nature of the action and the material facts are stated in the opinion. By the assumption and agreement to pay the debt of plaintiff to Cobb at the time of the settlement between plaintiff and defendants, as between himself and defendants, he became the surety and defendants the principals, although as to' Cobb plaintiff remained a principal, because Cobb was not a party to this arrangement.

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made the second Tuesday of June, 1880, which affirmed a judgment in favor of plaintiff, entered upon an order sustaining a demurrer to defendant’s answer herein. (Reported below, 21 Hun, 304.)</p> <p>The nature of the action and the substance of the pleadings are set forth in the opinion.</p> <p>Where jurisdiction or authority is conferred by statute, the repeal of the statute arrests and puts an end to all proceedings under it, which are not fully completed so that they can stand alone without the exercise of any further power under the repealed' statute, unless there is a saving clause in the repealing statute exempting such proceedings from its operation. (Kay v. Goodwin, 4 M. & P. 341; Surtees v. Ellison, 9 B. & C. 750; Regina v. Denton, 18 Q. B. [N. S.] 761; Rex v. Justices, etc., of London, 3 Burr. 1456; Buller v. Palmer, 1 Hill, 324; N. L., etc., R. Co. v. Boston, etc., R. Co., 102 Mass. 386; Ill., etc., Canal v. Chicago, 14 Ill. 334; Covington, etc., R. Co. v. Kenton Co. Ct., 12 B. M. 144; Hampden v. Com., 19 Penn. St. 329; Hunt v. Jennings, 5 Blackf. 195; McQuilkin v. Doe, 8 id. 581; Pope v. Lewis, 4 Ala. 48; Baily v. Mason, 4 Minn. 545; Springfield v. Commrs. of Hamden, 6 Pick. 501; North Canal St. Road, 10 Watts, 351; Veats v. Danbury, 37 Conn. 412.) Section 1 of the act of 1869 was repealed by section 1 of the act of 1871, by necessary implication. (Ely v. Holton, 15 N. Y. 595; Moore v. Manssert, 5 Lans. 173 ; S. C., 49 N. Y. 332; Bay v. Gage, 36 Barb. 447; State v. Ingersoll, 17 Wis. 631; Steamboat Co. v. The Collector, 18 Wall. 478; Kelsey v. Kendall, 48 Vt. 24.) A subsequent statute, repugnant to a prior one, repeals such prior statute by necessary implication, and if the latter statute was intended as a substitute for the prior one, and was intended to prescribe the only rule which should govern in the cases provided for, it repeals the original act as absolutely as if the repeal were expressly declared. (U. S. v. Tyner, 11 Wall. 88; Norris v. Crocker, 13 How. [U. S.] 429; Davies v. Fairbairn, 3 id. 636; Gwinner v. Lehigh, etc., R. R. Co., 55 Penn. St. 136; Phillips v. Pickford, 9 Man., Gr. & S. 459; Warren v. Phillips, 36 Conn. 357; Jersey City v. R. R. Co,, 20 N. J. Eq. 360; Ind. School Dist. v. Whitehead, 2 Beas. Ch. 291; Farr v. Becket, 30 Vt. 344; Pingree v. Snell, 45 Me. 53.) The bonds could not - be issued under the act of 1871 because that act had no retroactive effect, and does not apply to proceedings commenced before its enactment. (N. Y. & O. M. R. Co. v. Van Horn, 57 N. Y. 473; Burton v. Wickwire, 54 id. 226; The People v. Supervisors, 43, id. 130; Sandford v.Bennett, 24 id. 20; Dash v. Vam Kleeck, 7 Johns. 477; Kelsey v. Kendall, 48 Vt. 24; Smith v. Humphrey, 20 Mich. 398; The State v. Smith, 38 Conn. 397; The State v. Blakemam, 52 Mo. 578; Sandford v. Barclay, 37 Cal. 11.) They could not be issued under the act of 1869 after the act of 1871 took effect because there was no longer any authority to issue bonds under that act, or according to its provisions, except as it was amended by the act of 1871. (The People v. Peck, 4 Lans. 530; The People v. Smith, 55 N. Y. 135; Aspinwall v. Com. of D. Co., 22 How. [U. S.] 364; The C., etc., R. Co. v. Kenton Co. Ct., 12 B. Monr. 144; Matter of B., etc., P. Co., 5 Hun, 485; Falconer v. B., etc., R. Co., 7 Hun, 499; S. C., 69 N. Y. 491; Town of Concord v. Portsmouth Sav. Bk., 92 U. S. 625.) The act of 1871 entirely destroyed the force and effect of the judgment of the county judge. (Aspinwall v. Commrs. of D. Co., 22 How. [U. S.] 364; The C., etc., R. Co. v. Kenton Co., Ct., 12 B. Monr. 144; Matter of Buffalo, etc. R. Co., 5 Hun, 485; Falconer v. Buffalo, etc., R. Co., 7 id. 499; 69 N. Y. 491.) The bonds are all void because made payable at one time and thirty years from their date. (Bacon’s Abr’t, Lit. St. D.; Quick v. Whitewater Township, 7 Ind. 570; Harrington v. Trustees of R., 10 Wend. 547; Ins. Co. v. Ritchie, 5 Wall. 541; Brown v. Commissioners, 21 Penn. St. 37.) The mode in which the commissioners are authorized to contract in behalf of the town being specifically and plainly pointed out and limited by the statute, that mode is exclusive and must be pursued or the contract will not bind the town. (Dillon on Mun. Corp., § 373; Frend v. Dennett, 4 C. B. [N. S.] 576; Head v. Ins. Co., 2 Cranch, 127; Zottman v. Sam Framcisco, 20 Cal. 96; Baltimore v. Reynolds, 20 Md. 1; Dey v. Jersey City, 19 N. J. Eq. 412.) The plaintiff can claim no protection as a bona fide holder of the bonds or coupons. (Marsh v. Fulton Co., 10 Wall. 676; McClure v. Township of Oxford, 94 U. S. 429; Smith v. City of Williamsburg, 24 Barb. 427.)</p> <p>The court in construing statutes should place itself in the situation of the legislature and ascertain the necessity and probable object of the statute, and then give such construction to the language used as to carry the intention of the legislature into effect, so far as it can be ascertained from, the terms of the statute itself. (People, ex rel. Peake, v. Bd. of Suffers of Col. Co., 43 N. Y. 130, 132; Sedgwick on Statutory and Constitutional Law, 325; Ind. School Dist. v. Whitehead, 2 Beasl. Ch. [N. J.] 290.) There is no such repugnancy between the Laws of 1871 and of 1869 as works an entire repeal of the latter by the former. (Angle, Rec'r, etc., v. Tome of Hume, 17 Hun, 374, 378; Fitzpatrick v. Boylan, 57 N. Y. 433, 437.) The proceedings in the different-towns and cities under the act of 1869, being necessarily, in different stages at the time the amendment thereof, by the act of 1871, was passed, the legislature would naturally intend to let what had been so done stand. (Benton v. Wickwire, 54 N. Y. 226; Sedgwick on Statutory and Constitutional Law, 252, 325; People, ex rel Peake, v. Bd. of Sup'vrs of. Col. Co., 43 N. Y. 130, 132.) In ascertaining the intention of the legislature the court may, in construing the act of 1871, consider its title. (People v. Wood, 71 N. Y. 371.) In affirmative statutes such parts of the prior one as may be incorporated into the subsequent one as consistent with it, must be considered in force. (Ely v. Holton, 15 N. Y. 595; Wood v. Oakley, 11 Paige, 403; Benton v. Wickwire, 54 N. Y. 226; Moore v. Mansert et al., 49 id. 332; Hill v. Nye, Admr., 17 Hun, 457, 462; Trist v. Calezas, 18 Abb. 143; 25 How. Pr. 416.) The amendment of the previous law by the act of 1871, as to the time of making said town bonds payable, is not repugnant to, nor does it repeal the provision of said previous law allowing them to be made payable in thirty years. (Ind. School Dist. v. Whitehead, 2 Beasl. Ch. 290, 291; Williams v. Potter, 2 Barb. 316; Moore v. Mansert, 5 Lans. 173; 49 N. Y. 332; Sedgwick on Statutory and Constitutional Law, 319, 365; Daviesse v. Fairbairn, 3 How. [U. S.] 636.)</p>

<p>One who exercises a legal right simply cannot be made liable because his action was instigated by wantonness or malice; the exercise of the right cannot be affected by the motive which controls it.</p> <p>Where, in an action for assault and battery, it appears that plaintiff was a trespasser upon defendant’s premises, and that the latter, in removing him, used more force than was necessary, plaintiff is not entitled to recover exemplary or punitive damages.</p> <p>It seems, that in such an action the fact that plaintiff was the aggressor is proper to be considered in mitigation of the actual damages.</p> <p>In such an action, the court after it had charged, in substance, that if defendant used more force than was necessary to stop the trespass he was liable for compensatory damages, added, “ and in a case where the jury find the defendant’s acts were wanton and malicious they may, in addition to the compensatory damages, return a sum by way of punitive or compulsory damages.” Held, error; that conceding he would have been so liable, if he had taken an opportunity, under pretense of right, to inflict upon plaintiff a wanton and malicious assault, the attention of the jury was not directed to such a question, but they might well have understood the charge as applying to the whole procedure of the defendant, and to the motive with which any degree as well as the excessive force was applied.</p>

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made April 8, 1880, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought to restrain the defendant from selling, as constable of the city of Cohoes, certain machinery levied upon by him, under and by virtue of certain tax and assessment warrants issued to him by the chamberlain of said city.</p> <p>The property in question originally belonged to the Clifton Company, a manufacturing corporation, against which corporation taxes were assessed as appeared by the rolls attached to said warrants. The warrants were issued to the chamberlain, one in August, one in December, 1875, and one in February, 1876. They were placed in the hands of defendant for collection between the 10th and 20th days of May, 1876. • On the 22d day of December, 1875, the property in question was sold by the sheriff under and by virtue of executions issued to him upon judgments rendered in favor of the plaintiffs against said corporation, and was bid in by the plaintiffs.</p> <p>The court found that the sale “ was not accompanied by an immediate or other delivery, nor was it followed by any actual or other change of possession at least until after February 24, 1876, and after the issue of the warrants to the chamberlain, * * * and that no proof has been given, showing that said sale was made in good faith, and without any intent to defraud the creditors of the said Clifton Company; ” and, as conclusions of law, that the sale to the plaintiff was fraudulent and void as against the' creditors of said corporation, and that the city of Cohoes was a creditor within the meaning of the statute of frauds.</p> <p>Further facts appear in the opinion.</p> <p>The trial court erred in finding that the sale by the sheriff was not accompanied by an immediate or other delivery, nor followed by an actual or continued or other change of possession, at least until February 24, 1876. (Fonda v. Gross, 15 Wend. 628; Gardinier v. Tubbs, 21 id. 169; Farrington v. Caswell, 18 Johns. 428, 429, 430; Ludlow v. Hurd, id. 218; Benfall v. Schell, 55 Penn. St. 393; Lathrop v. Neightner, 41 id. 297; Kendall v. Samson, 12 Vt. 515; Johnson v. Jones, 44 Ill. 142; Lee v. Huntoon, Hoffm. 447; Boynton v. Veazie, 24 Mass. 286; Packard v. Diemcent, 11 Cush. 282; Wilkes v. Ferris, 5 Johns. 335; 79 N. Y. 19.) The burden is upon the defendant to show that the Clifton Company had possession; it will not be presumed. (Brown v. Peabody, 13 N. Y. 125; Fisk v. Scutt, 21 Barb. 333; Hoyt v. Van Alstyne, 15 id. 568.) Until fraud and collusion are shown, a judgment is not only proof, but the best proof of good faith. (Candee v. Lord, 2 N. Y. 269; Hall v. Stryker, 27 id. 596.) The fact that the articles sold were principally heavy, bulky machinery nailed or screwed to the floor, of itself is a sufficient reason to excuse an immediate removal from a mill not in use by the former owner. (Mitchell v. West, 55 N. Y. 107; Hanford v. Artcher, 4 Hill, 271.) The issuing of the tax warrants to the chamberlain of Cohoes was not the issuing of a collector’s warrant. Ho levy could be made under it. (Laws of 1869, vol 2, pp. 2351-2, §§ 3-5; Millspaugh v. Mitchell, 8 Barb. 333; Ray v. Birdseye, 5 Denio, 619; Park v. Brown, 17 Barb. 145; France v. Hamilton, 26 How. Pr. 180; Thompson v. Van Vechten, 5 Abb. Fr. 458.) Heither the city of Cohoes nor the defendant is in position to attack the title of the plaintiffs. (Hastings v. Belknap, 1 Denio, 190.) The court erred in holding “ that by the levy made by the defendant, the creditors (the city and county) became and were in a condition to assert their rights as such creditors against such conveyance as fraudulent.” (Stroud v. Butler, 18 Barb. 327, 330; Parker v. Brown, 17 id. 145, 148; Fake v. Whipple, 39 N. Y. 394, 398.)</p> <p>The assessments, the collection of which is sought to be restrained, having been levied, and the warrants therefor having been issued and in the hands of the chamberlain, the public authorities had acquired an equitable lien upon the property of the corporation, prior and superior to the rights of its creditors. (In re Receivership Columbia Ins. Co., 3 Keyes, 123, 124, 125; 1 Story’s Eq. Jur., § 642 [12th ed.], p. 59.) These goods being “ under the control ” of the vendor, an “ immediate delivery, followed by an actual and continued change of the possession ” as it then existed, Was requisite to the validity of the sale under which the plaintiffs claim. (3 R. S. [6th ed.] 143, § 5.) The provisions of the Revised Statutes as to fraudulent sales apply as well to sales under execution as to sales between parties personally. (Masten et al. v. Webb, 9 N. Y. Weekly Dig. 35.)</p>

May 4, 1880, which affirmed a judgment in favor of defendants, entered upon an order nonsuiting plaintiff on trial. This action was brought against defendants, who were assessors of the town of Saratoga Springs, Saratoga county, in the year 1878, to recover damages for an alleged illegal assessment and levy and sale thereunder.

Upon the trial Dorauss who, was the material witness for the prosecution, in answer to questions of the prisoner’s counsel to which no objections were interposed, testified that he had been convicted of burglary and receiving stolen goods; had been sentenced to imprisonment in Clinton prison for four years, and had not been pardoned.

Ebbob to the General Term of the Supreme Court, in the first judicial department, to review judgment entered upon an order made April 2, 1881,-which affirmed a judgment of the Court of General Sessions in and for the city and county óf New York, entered upon a verdict convicting plaintiff in error of an attempt to commit burglary in the third degree. The facts material to the questions discussed are stated in the opinion.

At common law, the only description of property which could be the subject of larceny was “ mere movables having an intrinsic value.” (4 Blackst. Com. 235-236; 11 H. 7, chap. 17; 31 H. & S. chap. 12; Co. P. C. pp. 109, 110; Dalt., chap. 103 (s); De Swans & Lebesile, 7 Co. R. 15 (b); 1 Hale’s Pleas of the Crown, 510-12.) Yo larceny at common law can be committed of dogs. (2 Whart. Am. Cr. Law, 1754-1756; 1 East’s Pleas of Crown, 607; Reg. v. Robinson, Bell.

(2 E. S. 664, § 25.) The material facts are stated in the opinion. The felony under the first count for abduction requires proof of an unlawful taking against the will, and involves personal violence or menace. (Kaufman v. People, 11 Hun, 82; Laws of 1848, chap. 105, § 1.) An indictment created by statute must, in conformity to the rules, allege all the facts and circumstances necessary to bring the act charged as an offense directly within the statute.

The plaintiff in error was indicted for the larceny of certain goods, the property of one Howard. Upon the trial it appeared that on the 21st day of October, 1880, Howard was a dealer in country produce, having a store in the city of New York. On that day Shipply negotiated with him for the goods in question and concluded to buy. The terms were cash.

Ebbob to the General Term of the Supreme Court in the first judicial department, affirming a judgment of the Court of General Sessions in and for the city and county of New York, entered upon a plea of guilty to an indictment under section 29 of the Lottery Act (2 R. S. 666, § 29). That portion of the indictment presenting the question discussed is set forth in the opinion.

The substance of the complaint is set forth in the opinion. As the demurrers admit all the facts contained in the pleading demurred to, not only for the purpose of the argument but as evidence, the plaintiff has legal capacity to sue. (Alcott v. Carroll, 39 N. Y. 436; Mackey v. Auer, 8 Hun, 180.) The laws of the State of Hew York have but one mode in which such corporations can be organized, and the allegation in the complaint is tantamount to setting it out at length.

. Appeal from judgment of the General Term of the Court of Common Pleas, in and for the city and county of New York, entered upon an order made March 4, 1880, which affirmed a judgment in favor of plaintiff, entered upon a verdict. This action was brought to recover the amount of a-deposit made by plaintiff with the defendant. The material facts are stated in the opinion.

Term which corrected the taxation of costs in this proceeding by striking out an allowance of $60, for proceedings before, and for argument at, General Term, and substituting in place thereof $10. (Reported below, 24 Hun, 367.) The nature of the proceedings and the facts are sufficiently stated in the opinion. This is a special proceeding, and being such, the costs are prescribed by statute, and are not in the discretion of the court as to the amount.

Dean, assignee, under an assignment for the benefit of creditors, executed by Sterry Fry. The material facts are set forth in the opinion. Justice to all creditors required that, after an assignment for their benefit, the business should be wound up and the property disposed of at the earliest moment.

These were cross appeals from an order of the General Term of the Supreme Court in the fourth judicial department, made January 2‘2, 1881, which affirmed in part and reversed in part a Special Term order on motion to readjust costs, etc., herein. This action was brought in February 3, 1873, to recover damages for the alleged negligent killing of plaintiff’s intestate. It has been five times tried and twice to this court (75 FT.

This action was brought by plaintiffs, as trustees under the will of Margaret Douglass, deceased, for the alleged conversion of a check. The material facts are stated in the opinion. The plaintiffs had not the legal title or the right to the possession of the check in question.

This action was brought to recover damages for injuries alleged to have been occasioned by plaintiff’s negligence. Plaintiff took passage on one of defendant’s steamships from Liverpool to New York as a steerage passenger. She occupied a lower berth in a section built in two tiers or platforms. In the night time the upper tier of berths fell, and it became necessary to remove the occupants of the lower berths in order to make the necessary repairs.

(Reported below, 19 Hun, 174.) This action was upon a policy of insurance issued by defendant to plaintiff upon his “ two-story frame dwelling-house.” The material facts are stated in the opinion. It was error in the court to rule and decide that the previous policy in the Glens Falls Insurance Company had become void, and there was no double insurance upon the property. (Bigelow v. The N. Y. Central Ins.

This action was brought by plaintiffs, who were stock-brokers in the city of New York, to recover a balance alleged to be due on account of stock transactions between the parties. The material facts appear sufficiently in the opinion. The failure of duty found against the plaintiffs was of a subsequent, not a precedent, duty. A breach of a condition subsequent is to be compensated for by recoupment or counter-claim.

The nature of the action and the material facts are stated in the opinion. The expression of the policy as to the interest of the insured was a sufficient compliance with its condition. (Pitney v. Glens Falls Ins. Co., 65 N. Y. 6; Pelton v. Westchester Fire Ins. Co., Ct. of Appeals, Alb. L. J., June 28, 1879; Lasher v. Northwestern Ins., Co., 18 Hun, 98; Rowley v. The Ernpire Ins. Co., 36 N. Y. 550; Kenney v. Clarkson, 1 Johns. 380; Hitchcock v. Northwestern Ins.

(Reported below, 20 Hun, 133.) This action was brought by plaintiff, as receiver of the property of Lewis Story, to .recover an alleged surplus arising on foreclosure by advertisement, under the statute, of a mortgage on real estate. The defendant was the owner of a mortgage upon a farm. There was another mortgage, a prior lien upon said land. Defendant foreclosed his mortgage by advertisement under an or linary notice of foreclosnre.

The complaint in this action alleged the submission of certain matters in difference between defendants and plaintiff’s assignor, and the making and delivering of an award in pursuance thereof, whereby defendants were required to execute to said assignor their bond obligating them to pay to him the value of three thousand three hundred and eighty-two shares of “ The Heath & Smith Manufacturing Company ” on a day named; the value to be ascertained in a manner therein…

Chapter 604 of the Laws of 1874 is a local act. (People v. Hills, 35 N. Y. 449; People v. O’Brien, 38 id. 193; People v. Briggs, 50 id. 553; Matter of Mayer, id. 504.) The act of 1874 Chap. 604 is unconstitutional, for the reason that being a local act the subject of opening streets is not expressed in the title, as required by section 16, of article 3 of the Constitution.

(Reported below20 Hun, 191.) This action was brought to recover for the loss of certain merchandise, while being transported on defendant’s road, íhe facts proved were substantially these: On the 30th of April, 1873, the plaintiff and one William Brady purchased tickets and took passage on defendant’s road at St. Louis, Mo., for Dennison, Texas.

Appeal by defendant Place from a judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made November 26, 1879, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee.

The nature of the action and the material facts are stated in the opinion, The judgment upon the undertakings was conclusive upon every question necessarily involved. (Secor v. Sturges, 16 N. Y. 548; O’Brien v. Lloyd, 43 id. 248.) Plaintiff could not recover for value of use and occupation if a lease existed. (Bedford v. Terhune, 30 N. Y. 453; 24 How.

(Reported below, 22 Hun, 391.) This action was brought upon the following instrument executed by the parties: “ This indenture made this 18th day of October, 1872, by and between Harrison Gilmore of the first part, lessor, and the Ontario Iron Company of the second part, lessee, witnesseth: That the said party of the first part hereto doth lease and demise to said party of the second part, their successors and assigns, that certain piece or- parcel of land in the town of…

The facts are sufficiently stated in the opinion. A challenge, for favor “ is to determine the indifference of the person proposed as a juror.” (Thomas v. People, 67 N. Y. 218-221; People v. Mallon, 3 Lans. 224; Tohman v. People, 1 N. Y. 379-384.) The forming and expressing an opinion as to the guilt or innocence of the accused renders a juror incompetent.

(Reported below, 21 Hun, 493.) This action was brought upon a bill of exchange executed by the master of defendants’ vessel, which had been chartered by plaintiff for a voyage from Charleston, S. C., to Liverpool or Havre, and upon a eotemporaneous agreement between plaintiff and the master.

This action was brought to recover an alleged balance due on certain contracts for work and materials. The facts pertaining to the questions discussed are stated in the prevailing opinion.

This action was originally brought against William Phelps and Martin E. Kingman, who were formerly partners, doing business under the firm name of Phelps & Kingman, upon a written instrument executed by that firm, of which the following is a copy. “New York, February 15, 1861. “ City Bank, Poughkeepsie, N. Y.: “We hold ourselves responsible for the payment of any sum not to exceed five thousand dollars ($5,000), Mr. C. H. Wood-ruff may require of your bank for legitimate…

<p>Defendants contracted to sell certain real estate to one P., who agreed to pay and secure the purchase-price by conveying to the vendors certain other real estate, paying $3,200 in cash, and giving a bond secured by a mortgage for $6,500 upon the land purchased, payable in two years. When the parties came to execute the contract, it was modified by substituting for the cash payment the vendee’s notes at two and three months, secured by another bond and mortgage on the property purchased. The two mortgages were recorded at the same time ; there was no agreement by which the lien of one was to have the priority over the other. Prior to the maturity of the notes, plaintiff at the request of P., and upon receiving a bonus from him, agreed to take the notes and their collateral mortgage, and to extend the time of payment for a year; P. to give him also other security. Plaintiff was advised by P. that The two mortgages were given at the same time. Defendants thereupon indorsed the notes “without recourse,” and assigned the mortgage to plaintiff. The assignment contained the usual clause constituting the assignee the attorney for the assignors, to collect in their name and to discharge, etc. In an action to foreclose plaintiff’s mortgage, Jidd, that it was not entitled to priority, that the two mortgages should be treated as concurrent, each to share pro rata in the proceeds of the foreclosure.</p> <p>In such case the intention of, and the equities existing between the parties will control.</p> <p>M. Bank v. Bank of N. (9 Wend. 410); Stafford v. Van Rensselaer (9 Cow. 316), distinguished.</p> <p>The authorities in other States, holding that where different obligations maturing at different dates are secured by one mortgage, those first falling due have the priority of lien, distinguished and questioned.-</p>

(Reported below, 21 Hun, 253.) This action was upon a guaranty contained in a contract between the parties, the substance of which, and also the material facts, are set forth in the opinion. The contract being valid the defendant’s claim, to retain the benefits of it, and not to pay therefor is untenable and unconscionable.

<p>In an action to set aside a deed on the ground of fraud and undue influence, it appeared that M. the grantor, who was seventy years of age, and who formerly had been a strong and vigorous man, had become, and was at the time, physically weak, and his mind so impaired as to require the assistance of others in his business affairs, and that he was unable to care properly for his own interests. Defendant, who was a nephew of M., employed S., a neighbor, with whom M. was on intimate terms, to procure the deed agreeing to pay $1,000 therefor. S. had the deed drawn by an attorney without the knowledge of any other person, he giving instructions as to its terms; he brought the attorney with the deed to his residence, then brought M. there, and the deed was executed and acknowledged before the attorney, who was a notary. M. had declared that he intended to give the farm to defendant, but at other times had said that his nephews and nieces were alike to him, and should share equally in his property. The deed conveyed the grantor’s farm, reserving a life estate, and provided for the payment of $500 each to two sisters of the grantee. M., on his return home, stated, in answer to inquiries, that he had signed no paper in regard to his affairs, and, when questioned afterward, emphatically denied that he had executed a deed. About fifteen months after the execution of the deed, M. was adjudged a lunatic in proceedings de lunático. Neither the defendant nor S. were called as witnesses. Held, that the evidence justified a finding of undue influence.</p> <p>Also held, that the commission of lunacy was competent evidence.</p> <p>Also held, that testimony of witnesses that certain acts and statements of M., specified by them, were irrational, was competent and properly received.</p>

tion by the relator, as a resident and elector of the city and county of Hew York, for a writ of peremptory mandamus, directed to defendant, requiring him to issue a new election notice to the sheriff of the county of Hew York, including therein, as one of the officers to be elected at the general election in Hovember, 1881, that of surrogate, in place of Delano G. Calvin, the then incumbent. The General Term order also granted the application.

The General Term order also granted the motion. The action was for a tort. The defendant succeeded and perfected judgment for his costs, upon which execution was issued. This having been returned unsatisfied, an execution against the body of plaintiff was issued.

The order for the defendant’s examination should have been made returnable before the judge granting it, and not before a referee. (Code of Civil Procedure, § 873.) The order affects a substantial right, was not discretionary, and is reviewable in this court.

(Reported below, 20 Hun, 360.) The nature of the action and the material allegations of the complaint are set forth in the opinion. The power of appointment created by the will of Gertrude Cutting is a general beneficial power, and is valid, and there was a valid exercise thereof under the Revised Statutes.

(Reported below, 18 Hun, 1.) This action was brought by plaintiff, as administratrix of the estate of James McNulty, deceased, to restrain defendant from proceedings to enforce a decree of the surrogate of Kings county, requiring plaintiff to pay out of the assets in her hands the balance due on a judgment against her intestate.

Ebbob to the General Term of the Superior Court of the city of Buffalo, to review judgment entered upon an order made July 23, 1881, which affirmed a judgment of a criminal term of said court, entered upon a verdict convicting the plaintiff in error of the crime of murder in the first degree. The plaintiff in error was indicted for the murder of one John Karins.

In two actions pending in the Supremo Court in which said attorney appeared as attorney for plaintiffs, motions were made to dismiss the actions upon the ground that the person so appearing had been convicted of a felony, sentenced and imprisoned in State prison, and that thereby his office was forfeited and vacated. A certified copy of the record of conviction formed part of the moving papers.

The action was for partition of certain premises situate in the city of Hew York. Livingston at the sale bid off two lots for the sum of $12,000 and paid the required percentage and the auctioneer’s fee and signed a memorandum of the purchase.

<p>Where goods, sold to he paid fqr in cash or notes on delivery, are delivered to the purchaser without the cash or notes being given or demanded, the presumption is that the condition has been waived, and that a complete title vests in the purchaser.</p> <p>This presumption, however, may be rebutted by such declaration or acts of the parties, connected with the circumstances, as show an intention that the delivery should not be considered comnlete until performance of the condition.</p> <p>The question with what intent the delivery was made, when any doubt arises, is one of fact.</p> <p>Plaintiffs had had numerous dealings with B. & Co,, selling to them produce for export. Their course of business was, when produce was so sold, to place it on board vessels designated by B. & Co., taking ship’s receipts and measurer’s certificates and delivering them to the vendees after indorsing the receipts; payment therefor was made in cash on the Wednesday or Saturday succeeding the delivery. Upon the bill-heads used by plaintiffs was printed a notice as follows : “ Terms of sale. Cash on delivery, and merchandise billed is not to be deemed and taken as delivered, nor title passed, until paid for, without regard to possession.” In J uly, 1875, plaintiffs sold to B. & Co. a quantity of corn to be delivered to buyer’s vessel. A sale note was’delivered to B. & Co., embodying the contract and stating “ payment cash.” The contract of sale was in writing ; it contained no such provision as in the bill-heads. The corn was delivered as stipulated, on board the designated vessels; ship’s receipts and measurer’s certificates taken therefor. B. & Co. called for the receipts but plaintiffs refused to deliver without a positive assurance of prompt payment ; upon receiving an assurance of payment early the next morning, the indorsed receipts were delivered, and together with them bills with such printed heading, for the price of the corn.- In an action to determine the question as to the title to the corn these facts appeared : It did not appear that at the time of the delivery of the receipts and bills any allusion was made to the printed headings, or that any examination of them was made, or that any condition was attached to the delivery. Held, that the delivery of the shipping receipts upon promise to pay the next day, was presumptive evidence of absolute delivery ' of the corn; and that while the delivery at the same time, of the bills with the printed headings, was a circumstance tending to rebut the presumption, and would have justified a finding that the intention was to make the delivery conditional, yet it was not so controlling as to make'a finding of absolute delivery error as matter of law.</p> <p>The finding of the referee that the condition of cash payment was waived, was not contained in his findings of fact, but was among his conclusions of law. Held, that it was to be assumed that he found the facts necessary to support his conclusions, as the evidence would authorize such a finding.</p> <p>It seems that if the delivery had been conditional, so that the title did not pass as between plaintiffs and B. & Co., the latter could, nevertheless, give a good title to a tona fide purchaser or pledgee.</p>

<p>The complaint herein alleged, in substance, that defendant L. sold and conveyed to plaintiff certain premises, taking back her bond for $22,000 and interest, secured by mortgage on the premises; that thereafter she contracted to sell the premises to defendant W., he contracting to pay $22,000of the purchase-money “by the assumption of” the said mortgage ; that she, at the request of W., deeded the premises to the wife of the latter, subject tó the mortgage; that L. has commenced an action to foreclose the mortgage, and for judgment in case of deficiency against plaintiff. The relief asked was that W. be compelled to pay to L. the amount due on the bond and mortgage, and the latter to 'receive the same and surrender plaintiff’s bond, to be canceled. Held, that the complaint was properly dismissed; that the agreement of W. was, in substance, to indemnify, and the effect of the transaction was to make the mortgaged premises primarily liable for the debt, and W. the principal debtor as between him and plaintiff, and until it was determined that there was a deficiency, and so a personal liability on his part, an action against him was inequitable and could not be maintained.</p>

<p>Under the provision of the Revised Statutes (1 R. S. 738, § 137), declaring that “ every grant in fee of a freehold estate,’! not duly acknowledged or attested as therein prescribed “ shall not take effect as against a purchaser or incumbrancer until so acknowledged,” a grantor who has signed a deed unattested and unacknowledged has still power to effectually convey by deed properly executed; and, as against a grantee claiming under such a deed, the former deed is invalid.</p> <p>It matters not upon what consideration or for what purpose the subsequent deed was executed, or whether the grantee therein had notice of the prior conveyance ; the imperfect deed has no effect against any purchaser or incumbrancer.</p> <p>Covenants of warranty in the unattested deed do not make it operative as an estoppel.</p>

This action was brought to foreclose a mortgage on certain real estate in the county of Westchester. One. of the defenses was that plaintiff’s mortgage was cut off, and his rights as mortgagee barred by the judgment in an action brought by one McFarquhar to foreclose a prior mortgage under the judgment in which the lands had been sold to defendant Horton. The case is reported upon a former appeal in 70 N. Y. 253.

This action was brought to recover back moneys paid by plaintiffs to defendants, on the purchase of four United States seven-thirty notes which plaintiffs alleged were counterfeits. The only evidence of the spurious character of the notes was the record of a judgment in an action brought by the United States government against plaintiffs, to recover back moneys paid to redeem the notes.