Volume 87 — New York Reports

This was an action for the foreclosure of a mortgage to the extent of a balance of $1,770, claimed to be-still due upon it. Held: and having been made under the contract, defendants were bound by the terms of the contract. (Payne v. Wilson, 74 N. Y. 348; Ackermam, v. Hunsicker, 85 id. 43.) The contract between plaintiff and Niebuhr entitled plaintiff to a mortgage on this house and lot for $1,770.

This action was upon two promissory, notes executed by defendant Thompson, payable to the order of James Reid & Co., and indorsed by that firm to plaintiff on the last day of grace, as collateral security for an indebtedness of that firm. Thompson offered to show by way of set-off an indebtedness of said firm to him existing at the time of the transfer. This was excluded and said defendant’s counsel excepted.

This action was for the foreclosure of a mortgage. The referee reported that John J. Nathans, a judgment creditor of defendant Hope, the mortgagor, was entitled to the surplus arising on the sale. It appeared that said Nathans’ judgmént was perfected', and transcript.filed in the office of the clerk of the city and county of New York, January 28, 1878. On November 13,1878, the lien of said judgment was suspended on appeal by order of that date as prescribed by the Code.

(Reported below, 24 Hun, 627.) This action was for a limited divorce on the ground of cruel treatment.

<p>Where a legatee and. executrix named in a will, hy a power of attorney duly executed, appointed another her agent and attorney, in her name and place to present the will for probate, to have the same duly proved, and to ask for and receive letters of administration, held, that the attorney so appointed was “ a person interested in the estate” within the meaning of the provision of the act of 1837, “concerning the proof of wills,” which prescribes who may have a will proved (§ 4, chapter 460, Laws of 1837); and so, that he had a right to ask by petition for the issue of the letters of administration to which he was entitled; and that the surrogate had jurisdiction to act upon such petition.</p> <p>Where, after proceedings .for the probate of a will, a minor becomes interested by reason of the death of one of the parties, and the surrogate " ascertains ” that fact (§ 6), it is his right and duty to bring in such minor, and to appoint for him a special guardian in case he has no general guardian.</p> <p>The affidavit of an attorney or counsel in the case is quite sufficient to give the information and authorize the surrogate to act.</p> <p>Where a testator, not an inhabitant of this State, dies out of it leaving assets, the surrogate of the county where the assets are has jurisdiction to take proof of the will, and may act although the original will is in the possession of a court or tribunal of another country, and cannot be produced before him.</p> <p>Where, in proceedings for the probate of such a will, a commission was issued by a surrogate to take the testimony of witnesses in another country, and the original will was produced before said commissioners, held, that the commission made the commissioners officers of the court, for the purposes for which it was issued; that in the execution of the authority conferred, they stood in the place of and represented the court, and the exhibition of the will before them was substantially a production thereof before the court.</p> <p>It seems that the surrogate had the right to admit the will to probate upon production of the exemplification of the foreign record.</p>

<p>Appeal from judgment of the General Term of the Superior Court of - the city, of New York, entered upon an order made December 6, 1880, which affirmed a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 14 J. & S. 526.)</p> <p>The action was brought to recover damages for injuries alleged to have been caused by the unlawful act of an employe of defendant. Plaintiff’s evidence was to the effect that he jumped upon the steps of a car in a passenger train on defendant’s road, as the train was passing along a street in the city of Hew York, and sat down upon the platform of the car; that he was lacked therefrom by the conductor of the train or a brakeman, while the train was moving at the rate of about .ten miles an horn-, and was injured; that he was picked up by one Vogel, who was a witness for plaintiff; was carried to a police station-house, and from thence to a hospital. One Cross, the conductor of the train, was called ‘as a witness for the defense, and on cross-examination was asked and permitted to answer, under objection and exception, questions eliciting the fact that he was grandson of Mr. Vanderbilt, defendant’s president. It was proved that the police sergeant who made the entry of this accident in the police record was dead, the record was offered in evidence by defendant ; it was objected to and excluded. Exception was made as to the charge of the court to the jury; the portion excepted to is set forth in the opinion.</p> <p>The master could not lawfully remove a trespasser from a train in motion, hence it cannot be left to a jury to say that an act is within the scope of a servant’s employment which the master might not lawfully do. (Isaacs v. The Third Ave. R. R. Co., 47 N. Y. 122 ; Frazer v. Freeman, 43 id. 566; Hughes v. N. Y. & N. H. R. R. Co., 4 J. & S. 222 ; Wright v. Wilcox, 19 Wend. 343.) The act in its inception and execution was wholly illegal, and entirely independent of, and outside the employment of the conductor. (8 T. R. 299 ; 2 Salk. 641; Isaacs v. Third Ave. R. R. Co., 47 N. Y. 122.) A master can only be held liable for acts resulting in personal-injury, claimed to have been done by the servant within the scope of his employment, when the act done was, in its inception, authorized and lawful, but in its execution more force was, used than necessary, from error in judgment, recklessness, zeal or infirmity of temper. (Peck v. N. Y. C. & H. R. R. R. Co., 70 N. Y. 587; Cohen v. D. R. R. Co., 69 id. 173.) The court erred in saying to the jury that he thought the plaintiff a truthful youth —l£ I mean so far as a desire to tell the truth is concerned,” and in repeating that belief when the exception was taken. (Meyer v. Clark, 45 N. Y. 285.) Jurors are bound to take the law from the court, and a positive direction from the bench, as to a question of fact, is as potent as if it pertained to a question of law. (Allis v. Leonard, 58 N. Y. 288; Watson v. Gray, 4 Keyes, 385.)</p> <p>Assuming that the plaintiff was a trespasser, it was the conductor’s duty to put him off, and his act in putting him off was clearly within the line and scope of his authority, and having been done negligently and improperly while the cars were in motion, the company is clearly liable for its consequences. (Rounds v. D. L. & W. R. R. Co., 64 N. Y. 129; Higgins v. Watervliet T. & R. Co., 46 id. 23.) To make a master liable for the wrongful act of a servant to the injury of a third person, it is sufficient to show that the servant was engaged at the time in doing his master’s business, and was acting within the general scope of his authority, and this, although he departed from the private instructions of the master, abused his authority, was reckless in the performance of his duty, and inflicted unnecessary injury. (Rounds v. D. L. & W. R. R. Co., 64 N. Y. 129; Cohen v. Dry Dock, E. B. & B. R. R. Co., 69 id. 170-3; Limpus v. General Omnibus Co., 1 H. & C. 528.) Where a master claims exemption from liability for the tortious act of his servant while apparently engaged in executing his orders, upon the ground that the servant was in fact pursuing his own propose without regard to his master’s business, and was acting willfully and maliciously, it is ordinarily a question to be determined by the jury. (Rounds v. D. L. & W. R. R. Co., 3 How. 325 ; 5 T. & C. 475.) The test is whether the acts of the servant were within the scope of his employment, or in furtherance thereof, and were such as may fairly be said to have been authorized by the master, either expressly or as incident to the performance of the duties intrusted to the servant. (Wood’s M. & S. 585 ; Rounds v. D. L. & W. R. R. Co., 64 N. Y. 129 ; Shea v. Sixth Ave. R. R. Co., 62 id. 180; Peck v. N. Y. C. & H. R. R. R. Co., 6 T. & C. [Sup. Ct.] 486.) The master can never escape liability for an abuse of authority by- the servant. (Peck v. N. Y. C. & H. R. R. R. Co., 6 T. & C. 436 ; Garretzen v. Duenckel, 50 Mo. 104; Brennan v. Fairhaven & W. R. R. Co., 45 Ct. 284.) When the act, assuming it to have been properly performed, is one which the master himself, if present, might have done, it will be presumed that it was an act within the scope of the servant’s authority, and the burden of proof of want of authority rests upon the defendant. (Jackson v. Second Ave. R. R. Co., 47 N. Y. 274; Rounds v. D. L. & W. R. R., 64 id. 129; Garretzen v. Duenckel, 50 Mo. 104; Oliver v. Northern Transportation Co., 3 Oreg. 84; Poulton v. The L. & S. W. R. Co., L. R., 2 Q. B. 534; Wood’s M. & S. 585 ; Shea v. Sixth Ave. R. R. Co., 62 N. Y. 180; Peck v. N. Y. C. & H. R. R. R. Co., 6 T. & C. [Sup. Ct.] 436.) The defendant was as much liable for the act of the brakeman, baggageman and engineer as for that of the conductor. (Bayley v. The M. S. & L Ry. Co., L. R., 8 C. P. 148, 153 ; R. W. R. R. Co. v. Hack, 66 Ill. 238; Lovatt v. Salem R. R. Co., 9 Allen, 557.) Ah exception will not lie to the statement by the judge that he thought the plaintiff was a very intelligent and truthful youth. (3 Wait’s Pr. 178, 205; Winne v. McDonald, 39 N. Y. 233; Dows v. Bush, 28 Barb. 157; Carnes v. Platt, 6 Rob. 270; Mallory v. Tioga R. R. Co., 36 How. 202; S. C., 1 Trans. App. 203; 3 Keyes, 354.)</p>

<p>Defendants, W. G. McC. and J. E. McC., and defendant F., entered into an agreement by which, after a recital that the former had purchased and were the owners of certain real estate, and were about to erect fifteen buildings thereon, F. agreed to advance $60,000 toward the purchase and the erection of said buildings, he to be allowed interest on the money advanced, and one-half the profits arising on sale, which the McC’s covenanted should be at least $12,500; the amount of the advances and of the guaranteed profits, to be secured by bond and mortgage. The advances were made and the mortgages given as agreed. In an action to recover for work and materials furnished in erecting the buildings under a contract with the McC’s, in which F. was sought to be charged as a partner, held, that the agreement did not make F. liable to third persons as a partner; and that the complaint was properly dismissed as to him,</p>

<p>Appeal by defendant Mary D. Burdick from a judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made February 13, 1880, which affirmed a judgment in favor of plaintiff against said defendant, entered upon a verdict. (Reported below, 20 Hun, 104.)</p> <p>The nature of the action and the material facts are set forth in the opinion.</p> <p>The non-examination of the deed was not such negligence as took from the party the right to predicate fraud apon the transaction. (Andrews v. Gillespie, 47 N. Y. 478 ; Botsford v. McLean, 45 Barb. 478; Kilmer v. Smith, 77 N. Y. 226; Hay v. Star Fire Co., 77 id. 236; Welles v. Yates, 44 id 525; Chapman v. Rose, 56 id. 137, 141; Whitney v. Snyder, 2 Lans. 477; Irving Nat. Bk. v. Meyers, 21 Alb. L. J. 84.) If there were no laches in signing, no liability would be created. (Chapman v. Rose, 56 N. Y. 137, 141; Whitney v. Snyder, 2 Lans. 477; Kerr on Fraud, 41; 1 Story’s Equity, § 186; Lord Hardwick’s Letter to Lord Kames; Parkes’ History of Chancery, 508; Bouvier’s Dict., title Fraud, § 7.) The mistake or fraud in a written contract may be shown in an- action by the assignee thereof, even if the assignor be not made a party. The de-</p> <p>fendant may show that no such contract or a different one was made. (Andrews v. Gillespie, 47 N. Y. 487; Garnsey v. Rogers, id. 233.) Where one party is intrusted by the other to draw a written instrument, he wiil be held strictly to the faithful performance of the trust so reposed, and will not be heard tó say that the party defrauded should not have placed confidence in him. (Kerr on Fraud, 79, 182; Barlow v. Scott, 24 N. Y. 40; Botsford v. McLean, 45 Barb. 478; 1 De G., McN & G. 660-710; 6 Ch. App. 645 ; 3 B. & C. 623 ; 6 Vesey, 277; 14 id. 273 ; 3 Cow. 537; 13 Barb. 511; 6 Vesey, 277; Morris v. Budlong, 16 Hun, 575.) The respondent stands in no better position than the mortgagor Martin. (2 Fisher & Harrison’s Dig., tit. Fraud, p. 4116 ; Scholefield v. Templar, 1 Johns. 155; 5 Jur. [N. S.] 619; 28 L. J. Ch. 452; 4 De G. & J. 429; Andrews v. Gillespie, 47 N. Y. 487; Arnold v. Nichols, 64 id. 119 ; Auburn Bk. v. Leonard, 40 Barb. 136; Whelan v. Whelan, 3 Cow. 538 ; Garnsey v. Rogers, 47 N. Y. 233.) Under the Code which allows the interposition of a defense, whether legal or equitable, the appellant was bound to set up the defense of fraud in this action. (Dobson v. Pearce, 2 Kern. 156 ; Dambman, v. Schulting, 4 Hun, 50; Foot v. Sprague, 12 How. Pr. 355.) If respondent desired to bind Martin, it had only to notify him of the defense, and to come in and defend the action. (Andrews v. Gillespie, 47 N. Y. 487.) If resort to a “ cross-action ” was proper, the objection to the insufficiency of the pleadings being raised only at the hearing, under the well-established practice in Chancery the court itself would direct the cross-bill to be filed, when necessary to bring before the court the rights of the parties, and the matters necessary to a just determination. (Field v. Scheifflin, 7 Johns. Ch. 255; Story’s Eq. PI., § 316; Mitford’s Ch. Pr. 82; 4 Metcalf, 104; 2 Barb. Ch. 130; 1 Hoffman’s Ch. Pr. 346, note.) The Code did not require that there should be any prayer for relief in the answer. (Story’s Eq. Pl. § 312, note 2 ; Kimberly v. Sells, 3 Johns. Ch. 467; Livingston v. Livingston, 4 id. 294; Higginbotham v. Burnett, 5 Johns. Ch. 184; 1 Johns. Cas. 423, 429.) The question now is, ought the plaintiff to recover ? and any thing which shows that he ought not is available to the defendant, whether it was formerly of legal or equitable cognizance. (Dobson v. Pearce, 12 N. Y. 168; Crary v. Goodman, 12 id. 268.) In this action, all the parties being before the court, including the defendant Martin i it was in the province, and it was the duty, of the court to determine all matters in controversy. (Code of Procedure, § 122, sub. 1; New Code, § 452.)</p> <p>A party desiring a reform of a deed should bring a bill in equity for that purpose. A mortgagor cannot ask this relief in answer to a bill to foreclose, but he may file a cross-bill. (1 Jones on Mortgages, 73, § 98; French v. Griffin, 18 N. J. Eq. 279 ; Webster v. Bond, 9 Hun, 440; Simion v. Schenck, 29 N. Y. 613; 2 Wait’s Pr. 477; Code of Civil Procedure, § 521; Cady v. Potter, 55 Barb. 463; Cassler v. Litts, 6 Hun, 659; 1 Story’s Eq., § 165; Ramsey v. Mullen, 5 Abb. N. C. 246, 255.) An equitable defense is not available in any case unless all the parties are brought in and impleaded to enable the court to adjudicate on all the questions in controversy. (Auburn City Bk. v. Leonard, 20 How. 193.) The deed itself is the contract between the parties, and can only be reformed upon the ground of a mutual mistake or of fraud. (Story v. Conger, 33 N. Y. 676.) When, by the exercise of diligence and by such an examination as a prudent person ought to have made, a person could have discovered the falsity of a representation, he cannot recover. (Long v. Warren, 68 N. Y. 426; Slaughter’s Admrs. v. Gerson, 13 Wall. 383; Bigelow on Frauds, 66; Tallman v. Green, 3 Sandf. Eq. 441, 442; Starr v. Bennett, 5 Hill, 303; Commissioners v. Younger, 29 Cal. 172,176; Moran v. McLarty, 11 Hun, 66-69; Bacon v. Markley, 46 Ind. 116; Rogers v. Place, 29 id. 577; Craig v. Hobbs, 44 id. 363; Hawkins v. Hawkins, 50 Cal. 558 ; Jackson v. Craig, 12 Johns. 427; Albany City Svgs. Bk. v. Martin, 56 How. Pr. 500; Attwood v. Small, 6 C. & F. 233.) It is only in very plain cases that a deed will be reformed. (Mayhan v. Hartford F. Ins. Co., 12 Hun, 321, 323.) It was Burdick’s duty to read the deed, and if there was a difference of opinion as to the meaning of the verbal contract he should then have said so. (Botsford v. McLean, 65 Barb. 478, 487; Andrews v. Gillespie, 47 N. Y. 487, 488.) Plaintiff has a right that the question whether the defendant assumed to pay the mortgage shall be, as to all parties, finally determined in one action. (Vilas v. Jones, 1 N. Y. 283, 284.)</p>

This action was brought to foreclose a mortgage for the sum of $3,000 executed by defendants Bessie A. and Harry C. Covell, to the plaintiff, dated July 11, 1876.

(Reported below, 14 J. & S. 460.) This action was brought by plaintiff, as assignee, for the benefit of creditors of David Schener, to recover'for an alleged conversion by defendants, of property belonging to Schener. The material facts are stated in the opinion. It cannot be presumed that the warrant of attachment was vacated for error, and not for irregularity, because affidavits were used on behalf of the Scheners on the motion to vacate the attachment.

This action was brought to recover damages for injuries alleged to have been occasioned by defendant’s negligence. , The material facts are stated in the opinion. As matter of law, plaintiff was guilty of contributory negligence. (Gen. R. R. Law, Laws of 1850, p. 211; Phillips v. The Railroad, 49 N. Y. 177; Clark v. The Eighth Ave. R. R. Co., 36 id. 135, 138; Hickey v. R. R., 14 Allen, 429, 432; Ward v. Cent.

and for thé city and county of Hew York, in favor of defendant, entered upon an order made the first Monday of December, 1880, overruling plaintiff’s exceptions and directing judgment on a verdict.

N This action was upon a policy of insurance issued by defendant upon the life of Thomas H. Dilleber, plaintiff’s husband. It is reported upon a former appeal, in 69 H. T. 256. The policy was issued August 17,1867. The insured died of consumption in September, 1871.

This action was brought to recover damages for injuries received by plaintiff in consequence of falling upon the sidewalk in front of a lot owned by defendant in the city of Brooklyn. The material facts are stated in the opinion.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made May 15, 1879, which affirmed a judgment in favor of defendant, entered upon an order nonsuiting plaintiff on trial.</p> <p>This action was brought to recover damages for the alleged negligent killing of John Cosgrove, plaintiff’s intestate, who was killed by a collision at a crossing on defendant’s road.</p> <p>The material facts are set forth in the opinion.</p> <p>The evidence in the case authorizes a recovery by plaintiff, on the ground that there was no negligence on the part of Cosgrove contributing to the accident. (Ramsay v. The N. Y. C. & H. R. R. R. Co., Sup. Ct., 4th Dept. N. Y. W’kly Dig., June 4, 1877, 396; Weber v. N. Y. C. & H. R. R. R. Co., 67 N. Y. 587; 58 id. 451; Kellogg, Ex'r, etc., v. N. Y. C. & H. R. R. R. Co., 79 id. 72.) It is not as matter of law negligence for a person approaching a railroad in a carriage upon a highway, not to stop; his omission to do so is a fact to be submitted to the jury. (Stackus v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 464.) To justify a nonsuit on the ground of contributory negligence the negligence must appear so clear that no construction of the evidence or inference drawn from the facts would have warranted a contrary conclusion. (Green, Adm'r, etc., v. The Erie R. R. Co., N. Y. W’kly Dig., No. 7, July 30, 1877, 596.</p> <p>In a case like the one at bar where there is no proof of freedom from negligence on the part of the plaintiff’s intestate, there can be no recovery. (Pakalinsky v. R. R. Co., 82 N. Y. 424; Schwartz v. H. R, R. R. Co., 4 Robt. 347; Leonard v. Collins, 70 N. Y. 95; Wasmer v. R. R. Co., 80 id. 212; Reynolds v. R. R. Co., 58 id. 248; Hale v. Smith, 78 id. 615; Cordell v. R. R. Co., 75 id. 330.) The fright of the horse could not be imputed to the defendant, there being no unnecessary blasts of whistle and noise of bell. (Coy v. U. & Sch. R. R. Co., 23 Barb. 643; Warner v. R. R. Co., 44 N. Y. 465.)</p>

<p>Appeal from. the 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 in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial/</p> <p>This was an action of ejectment to recover possession of certain lands situate in the city of Brooklyn.</p> <p>The material facts are stated in the opinion.</p> <p>The agreement and conveyance of the 19th of July, 1855, did not operate as a payment of Cooke’s judgments, because Cowenhoven wholly failed to remove the incumbrances on the property. (Northrup v. Northrup, 6 Cow. 296.) Immediately after the expiration of the stipulated three months,. Cooke was entitled to maintain an action against Cowenhoven for a breach of his covenant, in which the measure of damages would have been .the amount of the outstanding incumbrances, and such action could have been maintained without Cooke being obliged to show any actual damage suffered by him, beyond the fact that the incumbrances remained unpaid. (Post v. Jackson, 17 Johns. 239; S. C., id. 479; Northrup v. Northrup, 6 Cow. 296; Rockfeller v. Donelly, 8 id. 623; Churchill v. Hunt, 3 Den. 321: Wright v. Whiting, 40 Barb. 235; Jarvis v. Snell, id. 449; Cady v. Allen, 22 id. 388; Seligman v. Dudley, 14 Hun, 187; Gilbert v. Wyman, 1 Comst. 530; Rector v. Higgins, 48 N. Y. 532; Bellows v. Freeborn, 63 id. 383; Bank v. Biglin, 83 id. 51.) It is sufficient to uphold the sale if any amount is due on the judgments, although it may be less than the sum for which the execution is issued. (Peck v. Tiffany, 2 N. Y. 451.) By the purchase of the premises in question, expressly subject to Cooke’s judgments (under which the defendants derive title), Crombie was equitably estopped from afterward claiming that the judgments were at that time paid, and the plaintiff, as Crombie’s .successor, is equally estopped. (Brinsmade v. Hurst, 3 Duer, 206; Hurst v. Davis, 26 N. Y. 495.)</p> <p>The vitality of the Cooke judgment was destroyed, so far as plaintiff’s rights under the Terrett judgment were concerned, by the agreement of 19th July, 1855, between Cooke and Cowenhoven, and the execution sales under them were void. (Marvin v. Vedder, 5 Cow. 671; Delavergne v. Everson, 1 Paige, 181; Truscott v. King, 2 Seld. 147; Fitzhugh v. Blake, 2 Cranch’s C. C. 37; Dows v. Parker, N. Y. C. P., 4 N. Y. Leg. Obs. 384; Ford v. With-ridge, 9 Abb. 416; Mott v. Union Bk., 38 N. Y. 18; Caverly v. Nichols, 4 Johns. 189; Lansing v. Ratoon, 6 id. 43; Watson v. Fuller, id. 283; Van Wyck v. Montrose, 12 id. 350.) If a judgment be satisfied there is no longer any power to sell, and a title cannot be acquired, even by a bona fide purchaser, without notice of the payment. ( Wood v. Calvin, 2 Hill, 566; 15 Johns. 443; 1 Cow. 622, 711; 7 Johns. 535; 4 Wend. 474; 6 id. 367; 8 id. 676; 9 Mass. 138; 16 id. 63.) A purchaser under a power purchases at his peril; if there was no subsisting power or authority to sell, no title is acquired. (Lovett v. Cornwall, 6 Wend. 367; McGuinty v. Herrick, 5. id. 241; Swan v. Saddlemire, 8 id, 676; Carpenter v. Stilwell, 11 N. Y. 61; 2 Hill 566; 5 id. 246, 272; 8 Wend. 676; 6 Hill, 14; 7 Johns. 535; Cameron v. Irving, 5 Hill, 272.)</p>

This action was brought to recover two installments of rent falling due under and by the terms of a lease of a basement room of a building on Wall street, in the city of New York. The lease contained these clauses: “ 13th.

This action was brought to compel the specific performance of a contract between the parties made February 19, 1879, by which the defendant agreed to sell and the plaintiff to purchase certain real estate in the city of New York, for the sum of $75,000, payable as follows: $1,500 in cash on the execution of the contract, $34,500 by assuming mortgages on said premises to that amount; $37,500 by giving a purchase-money mortgage bearing even date with the deed, and ‘‘ interest…

(Reported below, 21 Htm, 114.) The nature of the action and the material facts appear in the opinion. The suit being upon the notes, without any disclosure of any right of action for goods sold or claim of a fraud being perpetrated, no evidence of fraud was admissible.

(Eeported below, 22 Hun, 72.) This action was brought to foreclose a mortgage executed by defendant, Benham, to Joseph Coles, to secure a bond for the sum of $600, bearing date May 11, 1868. The trial court found, in substance, that on January 1, 1870, Benham conveyed to one Beach all of the mortgaged premises, except a small strip which was on the same day conveyed by Benham to one Baldwin.

This action was brought to recover damages caused by an alleged nuisance.

The nature of the action and the facts are set forth sufficiently in the opinion. The deficiency in quantity of land or value thereof was not so trifling that the plaintiff should not have recovered it, whether his action was grounded in fraud, mistake or misrepresentation.

(Reported below, 24 Hun, 238.) The facts appearing upon the motion are sufficiently stated in the opinion. A valid judgment m personam cannot be obtained against a non-resident of the State who is not personally served with process, and has not appeared in the action, and it is not competent for a State to authorize such a judgment as will bind property not within the State at the time, and not proceeded against in rem, in satisfaction of the claim.

The application to vacate the attachment was made on behalf of judgment creditors of the defendant.

The facts are sufficiently stated in the opinion. The order appointing a referee, under the circumstances in this case, is appealable to this court. (Preston v. Morrow, 66 N. Y. 452.) The order vacating the order of reference to Mr. Pritchard was irregular and unauthorized by law. (Code, § 772; Beeker v. Lamont, 13 How. Pr. 23; Atlantic Bk. v. Franklin, 55 N. Y. 237.) So far as the order appealed from vacates the stipulation referred to, it is not reviewable in this court.

(Reported below, 19 Hun, 503.) This was an action for trespass guare clausum, fregit. The defense was that the locus in guo was a public highway, defendant justifying as commissioner of highways. The facts, so far as material to the questions discussed, are set forth in the opinion. The act of Commissioner Jump in removing the gate was unlawful and a trespass, as no notice to remove the fence had previously been given, as required by statute.

<p>The dower interest which a widow has in lands of which her deceased . husband had been seized is, although unmeasured, -assignable as a right in action and is liable in equity for her debts. - -</p> <p>Where, therefore, in pursuance of an order appointing a receiver in proceedings supplementary to execution against a widow who was entitled to dower, but which had not been assigned to her, she conveyed her dower interest to the receiver, he having also complied with the conditions prescribed by the Code (§ 3468), for the vesting of the property of the judgment debtor in him, held, that he was entitled to maintain ' an action to admeasure the dower; also that the action was properly brought by him in his own name as receiver.</p> <p>Also held, that plaintiff’s position did not enable him to bring an action for " partition.</p> <p>It seems that in an action in the nature of a creditor’s suit, the amount of the judgment upon which it is based measures the matter in controversy; and if less than $500, the judgment in the creditor’s suit is not appeal-able to this court unless an appeal is allowed by the Supreme Court. (Code, § 191, sub. 3.)</p>

<p>The provision of the Code of Civil Procedure (§ 382, sub. 5) limiting the time for the commencement of “ an action to procure a judgment other than for a sum of money,, on the ground of fraud,” includes all cases formerly cognizable, by the Court of Chancery, whether its jurisdiction therein was exclusive or concurrent with that of courts of law, in which any remedy or relief is sought for aside from or in addition to a mere money judgment, and which a court of law could not give, although as part of the relief sought a money judgment is also demanded.</p> <p>It, therefore, includes a case where an accounting is sought 'for in addition to and as a means, of reaching a judgment for money.</p> <p>Plaintiffs’ complaint alleged in substance that defendant was employed as their agent, for a commission agreed upon, to purchase for them what were known as ‘1 city horns; ” that he acted in that capacity for a series of years, receiving moneys from plaintiffs and .rendering accounts at stated intervals which he represented to be correct, 'and which were settled in reliance upon such statements; that such accounts were, m fact, false and fictitious, and by means thereof defendant, “ intending to cheat and defraud plaintiffs, obtained from them and fraudulently converted to his own use upwards of $11,000.” The relief prayed for was-that defendant render an account and pay over the amount found due. Held, that the action was one “to procure a judgment other than for a sum of money ” within the meaning of said provision, but that it was not “ to procure a judgment * * * on the ground of fraud ; ” that the gravamen of the action was a breach of contract, i, e., a failure of the agent to properly perform his duty of accounting justly and honestly to his prin-. cipal; that the fraud was not material to'the causé of action, but only as a necessary fact to open the closed accounts, and to prevent them from, being a conclusive defense; and that, therefore, the case did not come within the clause of said provision declaring that in the cases specified the cause of action should not be “deemed to have ac'crued until the discovery * * * * of the facts .constituting the fraudbut that the statute began to run from the time of the ipcurring of the obligation ; i. e., from the time of the misappropriation by defendant of the money of his principals, or the obtaining from them of money to which he was not entitled.</p> <p>Plaintiff claimed .that the agency was continuous, and as defendant was a foreign factor a demand was necessary to the accruing of the cause of action, and so that the statute of limitations did not begin to run until demand. The court found that the employment was always fora single . year, and at the end of each year was renewed for the succeeding year. Held, that a demand was unnecessary.</p>

<p>Plaintiffs sold and delivered to V. Bros, a quantity of sugar; the sale was induced by fraud on the part of the vendees who transferred the sugar to defendant, and then went into voluntary bankruptcy. This action was brought to recover possession of the goods on the ground of the fraud; the complaint alleging that defendant received possession with notice, and was party to the fraud; while the action was pending, plaintiffs proved a claim in bankruptcy against V. Bros , as for goods sold, and received from the assignee a dividend thereon. The claim, however, was, by order of the register in bankruptcy, subsequently expunged from the record; and the assignee, on the ground that this action was a disaffirmance of the sale, demanded, and received back the dividend. Held, that plaintiffs, having, on discovery of the fraud, an election of remedies — i. either to disaffirm the sale and recover the property, or to sue for the price, and having manifested their election by bringing this action, could not there, after revoke it, and maintain a claim under the contract of sale; that the subsequent transaction with the assignee in bankruptcy was no defense, both because plaintiffs were so bound by their election, and because the assignee had no power to waive any advantage, accruing to the estate by the election, or to create a debt where none existed, and so could not assent to a rescission of the election.</p> <p>Also held, that the proof and allowance of plaintiffs’ claim in bankruptcy was not an adjudication, having the force of a judgment as upon contract</p>

On the 23d of December, 1879, a subpoena signed “ Lester B. Faulkner, chairman of the committee,” was served upon the respondents.

The nature of the action, and the substance of the pleadings are set forth in the opinion. The defendant has a right to include in the issue the whole of the publication alleged to be libelous, and so much of the order appealed from ’as is in contravention of this right should be reversed. (2 Starkie on Slander and Libel, 85, 320; Cooke v. Hughes, 1 Ryan & Moody, 112, 114; Rex v. Lambert, 2 Campbell, 398, 399, 400; Culver v. Van Auden, 4 Abb.

These were cross-appeals from an order of the General Term of the Supreme Court, in the fourth judicial department, made June 29, 1881, which affirmed an order of Special Term, made on motion for retaxation of plaintiffs’ costs herein. The items objected to and the facts in relation thereto, appear in the opinion. The counsel had authority to bind their respective clients by the stipulation made touching the fees of the referees.

Appeal» from order of the General Term of the Supreme Court, in the second judicial department, made December 14, 1880, which sustained defendant’s exceptions and granted a new trial (Reported below, 23 Hun, 196.) This action ivas brought to recover damages for an alleged breach of a shipping contract.

The plaintiff alleged, among other things, the following facts: That plaintiff, and defendant John F. Walter, Jr., were co-partners under the firm name of Walter & Fielding, under an agreement for no fixed period in the future; that the copartnership had become insolvent; that by collusion with Walter, and for the purpose of harassing plaintiff, and obtaining an undue advantage over other creditors, the other defendants had commenced actions against the firm in the Marine…

This action was brought to restrain the defendant from interfering with the use and enjoyment by the plaintiff of its dock or pier at the foot of South Sixth street, in the city of Brooklyn.

<p>W., who was engaged in business as a pork packer, and had been a borrower from plaintiff, delivered to it an instrument signed by defendant, which, after reciting that W. desired to increase his facilities for obtaining money and proposed to pledge to plaintiff property that might from time to time be in his possession, to secure discounts and loans, guaranteed to plaintiff “all such pledges of property, warehouse receipts and other vouchers ” as may from time to time be given by W., and defendant also promised as follows : “ That the property so transferred and set over to said bank shall not be misapplied or diverted to any other purpose while such loans or advances remain unpaid to said bank, and if any default or misappropriation of the property so pledged shall be made, I do promise and agree to make good any deficiency, and fully satisfy the stipulations contained in said receipts or other vouchers therefor, without requiring any notice to me of the several loans and discounts.” Held, that the guaranty was simply against a diversion or misappropriation of property which should be pledged to plaintiff by W., and did not cover the risk of a false or fictitious pledge ; that defendant undertook that if such pledge was good when taken it should be kept good thereafter, not that W. should actually have in his possession the property which he should profess to pledge.</p> <p>Also held, that conceding defendant took the risk of W.’s imposing upon plaintiff, without its fault, false and spurious security, he did not take the risk of a waiver by plaintiff of any security or of an acceptance of security known by it to be spurious and sham ; that defendant had the right to assume plaintiff would make its loans on real, not sham security.</p> <p>Accordingly held, that the exclusion of evidence offered by defendant to the effect that where alleged warehouse receipts were given by W. to plaintiS, the former in fact had no such property on hand as was specified therein, was error.</p> <p>Also held, that evidence to the effect that W., with the knowledge and assent of plaintiff, but without the knowledge or consent of defendant, shipped property covered by said receipts, and took railroad shipping receipts which he pledged for a new discount, was erroneously excluded.</p> <p>So also held, as to the exclusion of evidence, that before the making of any of the discounted notes described in the complaint, W. informed plaintiff’s cashier that it was impracticable for him to set aside property described in the receipts, that the cashier consented that this should not be done, and that thereafter W. ceased to make any attempt to se.t aside or to have on hand property so described.</p> <p>W. delivered to plaintiff as security, instruments in form and purporting on their face to be issued under the act in relation to warehouse receipts (Chap. 326, Laws of 1858, as amended by chap. 353 of the Laws of 1859, and by chap. 440 of the Laws of 1866). They were signed by W. and acknowledged the receipt from himself, as owner of the property specified. Held, that, as between the parties, they derived no force or efficacy from said act, and in no manner transferred the possession of the property or represented any such actual transfer ; that there was no valid pledge or actual warehouse receipt, but a transfer of title, as collateral, which could operate' only as a chattel mortgage.</p>

This action was brought to recover an amount paid by plaintiff on a judgment obtained against him and defendant Ray by one Allen. It appeared that plaintiff, and defendant Ray were, previous to May 2, 1870, in copartnership in the manufacture of steam gauges, under the name of the Buffalo Steam Gauge Company, and also under the firm-name of Ray & Sizer.

This action was upon a promissory note which the complaint alleged was dated April 1, 1872, and was for the sum of $1,000, payable with interest, one year from date.

(Deported below, '23 Hun, 200.) This action was for libel. The complaint set forth six separate and distinct articles alleged to be libelous, and to have been published by defendant in the Hew York Ser aid, each of which was separately numbered.

<p>The proper mode of delivery of goods transported by water, where not specified in the bill of lading, is determined by the usage and custom of the port of delivery, or the course of trade between the parties.</p> <p>. .Where delivery to the consignee is stipulated in the bill of lading, to justify a substituted delivery, the carrier must show that such delivery is in accordance with the usage and custom of the port of delivery.'</p> <p>Plaintiffs’ agent shipped at Toledo, on board defendant’s propeller, seven thousand bushels of wet wheat, consigned to plaintiffs, which, by the bill of lading, defendant contracted to deliver to the consignees at Buffalo. There were also shipped upon the propeller twenty thousand bushels of wheat consigned to other parties. The only method of delivering wheat at the port of Buffalo was into elevators. Plaintiffs requested defendant to discharge the wheat into the B. elevator. This it refused todo, but discharged it into the 3ST. elevator, which .was designated by -the consignees of the major portion of the cargo. Plaintiffs alleged in their complaint and gave evidence tending to establish that by the custom at the port of Buffalo, when grain in the same vessel was consigned to different consignees, each consignee could designate the elevator into which his grain should be discharged, and that the carrier was bound to there discharge it. The court found that •“ the course of trade by the parties hereto, and the general usage of all carriers of grain upon propellers into the port of Buffalo, was to deliver their cargo or parts of cargo at such elevator iu such port as the consignee thereof designated.” Plaintiff, to obtain the wheat, was compelled to pay the freight. In an action to recover back the same as paid under duress, and also to recover the expense of removal from the N. to the B. elevator, held, that the word “ usage” in the finding, was equivalent to “custom,” and that the delivery at the N. elevator was not justified; but held, that plaintiff was not entitled to recover both the freight paid and the expense of moving the grain; that as the recovery of the latter would give them what they would have had if defendant had performed its contract, such a recovery would be the most just and equitable.</p> <p>In the R. elevator was an apparatus for drying wet wheat. Held, that had there been no proof of usage or custom, the request of the consignees to have the wheat there delivered was reasonable, and should have been complied with.</p>

The action was brought originally against Henry Weisser, defendant’s intestate, and was for a specific performance of a contract. ' The complaint alleged, in substance, that on October 8, 1812, Weisser, who was the owner of certain premises, “ by an instrument under his hand and seal, agreed to sell and convey to the plaintiff, The Buffalo Catholic Institute, the said lands and premises, and on that day the plaintiff, by the said instrument, agreed to purchase the same from…

<p>The indexing of a mortgage is no part of the record thereof, and the omission of the county clerk to index it in the proper book does not deprive the mortgagee of the right of priority given him by the recording act. (1 R. S. 755, § 1 et seq; 2 R. S. 286, § 61; chap. 313, Laws of 1826 ; chap. 199, Laws of 1843.)</p> <p>Prom the time the mortgage is left for record it is notice to all subsequent purchasers.</p>

<p>The attorney who has issued an execution is only liable to the sheriff for his fees thereon when the judgment has been satisfied and discharged by the judgment creditor, or the attorney has countermanded the execution.</p> <p>-An attorney is not bound, even at the solicitation of the sheriff, to repeat the directions to enforce an execution already issued, nor does he, by refusing or neglecting so to do, create a cause of action against himself.</p> <p>After plaintiff as sheriff had made a levy under an execution issued to him by defendants as attorneys for the judgment creditors, said creditors, upon receipt of the indorsed notes of the judgment debtors, assigned the judgment, by instrument absolute upon its face, to one C. The assignment was in fact made to C. in trust to secure the indorsers, 0. executing to the judgment debtor an agreement that if the-notes should be paid at maturity or the indorsers saved harmless, he would assign or discharge the judgment as the judgment debtor should direct. The notes were not paid at maturity and the indorsers thereon were properly charged. Plaintiff called upon defendants for instructions; they replied that they had no instructions to give, that the judgment had not been " paid or satisfied, but assigned to parties who were to pay plaintiff’s fees, and plaintiff was referred to the attorneys of the assignee. In an action to recover sheriff’s fees, held that defendants were not liable; that neither they nor the judgment creditors in any manner interfered with the collection of the execution, or withdrew any power with which, by the terms of the writ, they had invested plaintiff.</p> <p>Plaintiff was allowed to testify, under objection and exception, that one of the execution creditors said to him, ‘ ‘we have got our pay and you ought to get yours.” Held, that the evidence was improperly received, but that it was of no moment.</p>

The material facts are stated in the opinion. The only penalty the court has power to impose for non-service of a bill of particulars in any case is that prescribed by the Code, i. e., to preclude evidence of such particulars at the trial.

Appeal by John M. Pinkney, from order of the General Term of the Supreme Court, in the first judicial department, made March 11, 1881, which affirmed, as to him, an order of Special Term, confirming and making absolute the report of a referee. (Reported below, 24 Hun, 307.) This action was brought to obtain a judicial construction of the will of Michael Burnham, who died in J anuary, 1836. The case is reported in 17 1ST. Y. 561.

This action was brought to restrain defendant from tearing down a fence erected by plaintiff upon land forming part of' what was once the southerly half of “the Wallabout bridge road; ” so called in the city of Brooklyn, to which plaintiff claimed title.

General Term of the Supreme Court, in the fourth judicial department, entered upon an order made October 5, 1880, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial, without a jury. (Reported below, 22 Hun, 29.) The nature of the action and the material facts are set forth in the opinion. There was no valid subscription by defendant to plaintiff’s stock.

<p>Appeal from order of the General Term of the Supreme Court, in the first judicial department, made May 6,' 1881, which affirmed an order of Special Term, denying an application on the part of defendant for a perpetual stay of all proceedings upon the judgment herein, because of defendant’s discharge in bankruptcy.</p> <p>The facts are sufficiently set forth in the opinion.</p> <p>The allegations in the complaint as to the fiduciary character of the defendant were not traversable, and hence, of course, they could not be res adjudicata. (Wood v. Henry, 40 N. Y. 124; Connaughty v. Nichols, 42 id. 86; Block v. Comrs., 9 Otto, 693; Greentree v. Rosenstock, 31 N. Y. 588; Auld v. Smith, 23 Kans. 65.) An estoppel does hot arise from every thing that is found or adjudicated by a court. It is only predicated upon that which is essential and material to the cause of action, and without which the action could not be sustained. (Packet Co. v. Sickels, 5 Wall. 592; Russell v. Place, 94 U. S. 606, 608; Sweet v. Tuttle, 14 N. Y. 465; 2 Phillips’ Evidence, Cowen & Hill’s and Edwards’ notes [ed. of 1868], pp. 2,14, 15,16, and notes; Supples v. Carmon, 44 Conn. 424; Matter of Roberts, 59 How. 141; In re Benson, N. Y. Com. Pleas, Gen. Term, February, 1881; 11 N. Y. Weekly Dig. 394; Remington Paper Co. v. O'Dougherty, 81 N. Y. 474.)</p> <p>It is res adjudicada, evidenceby the judgment record in this action, that the debt upon which the judgment was obtained was created by defendant “ while acting in a fiduciary capacity,” and by “ fraud.” (U. S. R. S., p. 933, § 5117; Smith v. Smith, 79 N. Y. 534; 2 Smith’s Lead. Cas. [7th Am. ed.], note to Dutchess of Kingston's Case at pp. 767, 771, 785-6, 790; Smith v. Town of Ontario, U. S. Circuit Court, N. Y., Nov., 1880,11 Reporter, 116; Cromwell v. County of Sac, 94 U. S. 357; 2 Phil. Ev. [4th Am. ed.], pp. 18-19 in C. & H., note 261; Blair v. Bartlett, 75 N. Y. 150; Gates v. Preston, 41 id. 113; Jarvis v. Driggs, 69 id. 143; Brown v. Mayor, 66 id. 384; Bump’s Bankruptcy [8th ed.], 684.) It is'not necessary, in order that a former judgment be conclusive upon a point in controversy, that the point in question was the sole point in controversy or the sole ground of the judgment. (2 Smith’s L. C. 113; Smith v. Smith, 79 N. Y. 634.) It is res adjudicata that the debt or claim was not such as would be discharged in bankruptcy. (Palmer v. Hussey, 59 N. Y. 647; U. S. R. S., § 5107.) The conduct of defendant from the outset of this suit, not only shows gross laches in making this application, but also impliesjan admission that the questions of “fiduciary capacity” and “fraud” were the gist of this litigation. (U. S. R. S., § 5106 ; Monroe v. Upton, 50 N. Y. 593.)</p>

The action was brought to enforce the observance of certain covenants in an 'agreement made on the 25th of July, 1859, between the plaintiffs and Joseph D. Beers, who then owned adjacent portions of the block of land between Fifth and Sixth avenues and Fiftieth and Fifty-first streets, liew York, in respect to the mode of improvement and the future occupation of then* respective portions. The case upon a former appeal is reported in TO hi. Y. 440.

This action was brought by plaintiffs as beneficiaries under the will of David M. Peyser, deceased, against defendant, Wendt, sole executor under said will, and others. The relief asked was that said executor be required to account for all the assets, property, etc., of the deceased, which have come to his hands, and for distribution thereof. Also, that a receiver be appointed to keep the property until distribution. A partition of the real estate was also prayed for.

(Beported below, 21 Hun, 306.) This action was brought to obtain a deduction from the sum secured by a bond and mortgage given for a portion of the purchase-price of a farm, on the ground of a deficiency in, _ and mutual mistake as to the quantity of land. The facts are sufficiently stated in the opinion. Plaintiff was not entitled to equitable relief on the grdund of mistake. (1 Story’s Eq.

(Reported below, 23 Hun, 188.) in the opinion. The nature of the action and the material facts are set forth The guarantors- had the guaranty, and the right to dictate the form of the instrument they would sign. (Barnes v. Barrows, 61 N. Y. 39.) The effect, therefore, of Mr. Wheeler’s death was to discharge his estate both in law and in equity from all liability on the guaranty. The remaining surviving guarantors only were liable.

favor of plaintiffs, entered upon the report of a referee. The nature of the action and the material facts are stated in the opinion. Defendant having possessed and claimed the land in suit adversely to plaintiffs, her title cannot be tried, passed upon or determined in an action of partition. (Florence v. Hopkins, 46 N. Y. 182; Van Schuyler v. Mulford, 59 id. 420; Wilkin v. Wilkin, 1 Johns.

Garrett, defendant’s president, and the other set aside the summons and complaint, and an injunction herein, and the service thereof, “ on the ground of want of jurisdiction.” The General Term order also directed that an attachment as for contempt, issue against said Garrett, returnable at Special Term, at a day named. • (Be-ported below, 14 J. & S. 377.) This action was brought to restrain defendant from interfering with lines of'telegraph or telegraph wires owned or…

The nature of the action and the material facts are set forth in the opinion. It was the duty of the commissioners of estimate and assessment to make the award as it was made, viz., to Thompson as owner, subject to the right of Mathews to be first paid therefrom the debt secured by the mortgage to him.

The fact of the commission of the alleged assault by the prisoner was proved, and upon his behalf an attempt was made to show he was insane at the time of the assault. This question was submitted in the following language: “You are to determine, from the evidence, whether or no he was insane at the time of this occurrence. The presumption of the law is, in this instance, against the prisoner, as in the other it was in his favor.

The complaint, in this action, alleged in substance that, about the year 1850, plaintiff, with others who were the owners of certain lands in the village of Yonkers, entered into an agreement with the Hudson River railroad to the effect that they would convey to said corporation a site for its depot, would fill in the same, and would lay out and grade their lands so as to give convenient communication between the depot and the business portion of said village, the said…

This action was brought to restrain the defendant from building upon a strip of land belonging to it, adjoining plaintiff’s premises. The right to restrain such erection was claimed under a covenant'in a deed from one Howland, who was the common source of title of both parties, to one Smith, of the premises now owned by defendant. The substance of this covenant, as well as the material facts, are set forth in the opinion.

This action was brought l^y the plaintiffs on an undertaking executed by the defendants in the action given to stay execution, on . an appeal to the General Term from a judgment rendered in the Supreme Court against Henry C. Hoffman and Israel McDonald, as executors of the will of Chester W. Ryant, deceased.

(Reported below, 13 J. & S. 6U2.) This action was brought against defendant to recover for the loss of four hundred and twenty-eight bales of cotton, which had been shipped at Memphis for Liverpool, and had been transported over defendant’s road, and were destroyed by fire while in its freight-house at Jersey City. The facts are sufficiently stated in the opinion. The contract of the defendant was satisfied by a delivery to the steamship company and nothing less or different.

) This action was brought to recover damages for an alleged breach of covenants of warranty, and of quiet enjoyment contained in a deed. The deed in question was executed by defendant William Conover and one Benjamin Conover, who died before the commencement of the action. The defendant John Conover was co-grantee with plaintiff; having refused to join as plaintiff, he was made defendant.

This action was brought by the plaintiff, as indorsee, against the defendant, as indorser, upon two promissory notes dated “Buffalo, ¡N. Y., August 7, 1875,” made by William H. Ingram, one being for $2,564.74, due October 15, 1875, the other for $1,282.37, due ¡November 16 thereafter, each payable with interest at seven per. cent, at the Third ¡National Bank, to the order of John ¡Kilderhouse (the defendant), and by him indorsed for the accommodation of the maker.

This action was brought to recover damages for injuries alleged to have been sustained by plaintiff by reason of the neglect of defendant to keep a sidewalk upon one of its streets in repair. The cause of action accrued in March, 1873; the action was commenced in March, 1877.

(Reported below, 19 Hun, 158.) The nature of the action and the material facts are stated in the opinion. Where a recorded mortgage has been assigned by the mortgagee, and the assignments are not recorded, it cannot be satisfied by the mortgagee as against the assignee in favor of a subsequent purchaser or of the mortgaged premises, without actual payment.

(Reported below, 13 J. & S. 508.) The complaint alleged in substance that plaintiff was the owner of certain lands situate in the late town of Morrisania, now part of the city of Yew York ; that an assessment was imposed by the board of trustees of said town upon his lands for a local improvement; that the assessment was valid on its face, and constituted an apparent lien upon said lands, but the same was actually void in whole or .in part, by reason of the facts that the…

<p>A positive and absolute refusal by one of the parties to perform a contract for a purchase and sale of land gives to the other party, as an alternative remedy, the right to assent to such abandonment, and to treat the contract as rescinded.</p> <p>Where, therefore, plaintiff, under a contract for the exchange of lands,had delivered possession of his premises, and the other party thereafter sold and conveyed his premises to a third person, who repudiated and refused to perform the contract, and refused to surrender possession of plaintiff’s land, held, that she was entitled to bring ejectment to recover the same; that by bringing such action and giving the preliminary notice to surrender possession, she gave her assent to the abandonment of the contract ; and, it being thus rescinded by mutual consent, its vitality was gone, and defendant could not invoke the same as a defense to the action.</p>

Appeal by plaintiff from an order of the General Term of the Supreme Court, in the fourth judicial department, made April 24, 1879, which reversed an order of General Term vacating and setting aside an order of discontinuance entered herein. (Reported below, 19 Hun, 385.) This action was brought to recover a penalty under the act to prevent extortion by railroad companies.

(Reported below, 13 J. & S. 273.) This action was brought to recover damages for injuries alleged to have been sustained through defendant’s negligence.

The summons in this action was issued to the sheriff for service January 3, 1877. The action was brought to recover an indebtedness of $966.28.

(Mem. of decision below, 22 Hun, 139.) The said justice dismissed the proceedings and gave judgment in favor of the tenant. The facts are sufficiently stated in the opinion. This summary proceeding is authorized by the Brooklyn charters of 1854 and 1873.

(Reported below, 20 Hun, 39.) This action was brought to recover freight for. the transportation of three thousand two hundred and fifty-one barrels of oil, and one hundred and twenty empty barrels, carried from Cleveland, Ohio, to Hunter’s Point, Long Island, under a contract between the defendant, as party of the first part, and plaintiff, with the Lake Shore & Michigan Southern Railway Company, as party of the second part.

The nature of the action and the material facts are stated in the opinion. The complaint does not state a cause of action.

The defendant’s answer contains all the facts necessary to constitute a defense for want of consideration, or for a recoupment of damages, and it was not necessary to state which he would insist upon, or, if he did so state, he would not he precluded from insisting upon any defense which the facts alleged would justify. (Springer v. Dwyer, 50 N. Y. 19, 22; Van Brunt v. Day, 81 id. 251, 254; Bates v. Rosekrans, 37 id. 409, 412; Equitable Life Ass.

Motion to revive proceedings, and to substitute the administrators of the estate of Richard Beckwith, deceased, in the place and stead of said Richard Beckwith, and of William W. Beckwith, the committee of the person and estate of said lunatic, both having died. The facts are sufficiently set forth in the opinion. Appellant is entitled to the order of revivor.. (Code, §§ 1297, 1299.) The revivor should be had against the lunatic’s personal representatives.

The material facts are set forth in the opinion. Where a person receives the goods of a husband from the wife in bad faith, and with knowledge that the husband’s consent was wanting, or with reason to presume that the taking was against the husband’s will, the talcing is felonious. (3 Greenl. on Ev., § 158; 2 Whart. Am. Cr. Law, §§ 1802-1806; Reg. v. Thompson, 1 Eng. L. & Eq. 542; Reg. v. Clark, 1 Moody’s Cr. Cas. 376; Reg. v. Featherstone, 26 Eng.

The material facts are stated in the opinion. Mon-professional witnesses cannot be permitted to express their opinions whether a testator was of sound mind or not. (Clapp v. Fullerton, 34 N. Y. 190; Hewlett v. Wood, 55 id. 634; Howell v. Taylor, 11 Hun, 214 ; De Witt v. Barley, 9 N. Y. 371; 17 id. 340; O'Brien v. People, 36 id. 282; Real v. People, 42 id. 270.) Opinions unaccompanied by facts are of but little importance.

, an attorney, to restore to the complainant herein a policy of insurance. • The proceedings were instituted upon an order to show cause based upon an affidavit, which averred, thatH. was an attorney of the Supreme Court; that deponent delivered to him the policy in question, with a power of attorney, “ for the special purpose of enabling him to perfect or confirm the rights of deponent in and under said policy,” and upon the understanding and agreement that H., as soon as…

e nature of the action and the material facts are set forth in the opinion. (Reported below, 24 Hun, 40.) Defendants were not entitled to be allowed a counsel fee.

(Reported below, 26 Hun, 58.) The warrant of commitment under which the relator was held stated that he was convicted in the Court of Special Sessions in and for the county of Hew York, “ of the misdemeanor of petit larceny,” and it was ordered and adjudged by said court, that “ for the misdemeanor aforesaid,” it appearing that he is under the age of sixteen, he be sent to the house of refuge.

This action was brought to recover damages for alleged negligence in causing the death of John Fahey, plaintiff’s intestate. The defendant was the lessee of a ferry between the city of Hudson and the village of Athens, on the Hudson river, and was the owner of a ferry boat plying between said places.

This action' was brought to recover damages for the alleged conversion of two shares each of the par value of $1,000, of the capital stock of the Salina Coarse Salt Stock Company. James Lynch, late of Syracuse, died seized of the stock in question. He left a last will, with various codicils. The will devised to his executors $2,000 in trust, for the benefit of Lilia L. White, granddaughter of the testator.

This action was brought by plaintiff as assignee, for the benefit of creditors of the firm of Wellington & Kidder, to recover money alleged to have been collected and received from the United States government by defendants, as attorneys for said firm and for plaintiff. The facts found were substantially as follows: .

<p>Error to the General Term of the Supreme Court in the first judicial department, to review judgment entered upon an order made December 23, 1881, which affirmed a judgment of the Court of General Sessions of the city and county of blew York, convicting the plaintiff in error of the crime of obtaining money by false pretenses. (Reported below, 26 Hun, 76.)</p> <p>The indictment charged and the evidence tended to show that the prisoner, with intent to cheat and defraud the complainant, represented that a horse which the latter was negotiating to purchase of him was sound, true and kind, well adapted and fitted to be used in- drawing wagons, which representations were known to the prisoner to be false and untrue; that the complainant, relying upon the statement, and nothing appearing at the time of the purchase to show its falsity, pm’chased the horse, paying $75 in money therefor; that the horse was in fact wind-broken and utterly worthless. The prisoner, on receiving the money, gave a receipt containing a warranty that the horse was kind and true, nothing being said therein as to its soundness. •</p> <p>The .charge against plaintiff in error was a breach of warranty for which an action would lie, but it is not an indictable offense. (Rex v. Pywell, 1 Stark. N. P. C. 402; Wheatley’s Case, 2 Burr. 1127; Pinkney’s Case, East’s P. C. 818; R. v. Meno, 2 Str. 1127; 7 Mod. 815; R. v. Lara, 6 T. R. 565 ; R. v. Bower, Cowper, 323; Rex v. Fowle, 4 C. & P. 592; Queen v. Kenrick, 5 Q. B. 49; Reg. v. Keighley, 7 Cox’s Cr. Cas. 217; Reg. v. Bryen, id. 312; Reg. v. Lee, 8 id. 233; Reg. v. Levine, 10 id. 374; Reg. v. Williamson, 21 L. T. R. [N. S.] 444; Scott v. People, 62 Barb. 69; Rex v. Coddington, 1 C. & P. 661.) It is not indictable to assert a false opinion with intent to deceive. (Reg. v. Oates, 29 L. & E. 552.) Fraudulent warranties in the sale of chattels, while fraud for which an action lies, do not amount to a felony. (Rex v. Bower, Cowper, 323; Rex v. Wheatley, 2 Burr. 1129; Rex v. Dunnage, id. 1130.) The court erred in not directing the acquittal of the accused, the party injured, having at the very time of the purchase, the means of detecting the fraud at hand. (State v. Mills, 17 Me.; Comm. v. Morse, 2 Mass. 138; Comm. v. Warren, 6 id. 72; Peoples Stone, 9 Wend. 182; People v. Gates, 13 id. 311; People v. Herrick, id. 87; People v. Johnson, 12 Johns. 291; People v. Williamson, 4 Hill, 9; People v. Thomas, 3 id. 169; Goodhalls Case, R. & M. C. C. 461; Roscoe’s Cr. Ev. 362; Comm. v. Hutchinson, 2 Penn. L. J. 243; Comm. v. Hickey, 3 id. 89; State v. Estes, 46 Me. 150; Burrow v. State, 7 Eng. R. [12 Ark.] 65; State v. Godfrey, 24 Me. 232; State v. McKenzie, 42id. 392; Vernon v. Keys, 12 East, 731; State v. McKenzie, 11 Ark. 595; Williams v. People, 4 Hill, 12.) The indictment charged no offense known to our law. (2 R. S., § 24, p. 741; McCord v. People, 46 N. Y. 470; Ranney v. People, 22 id. 413.)</p> <p>The representation as to the soundness of the horse being false, and made with design to cheat and defraud, was a false pretense and representation within the statute. (People v. Crisse, 4 Den. 525; State of Maine v. Stanley, 64 Me. 157; Reg. v. Keighley, 7 Cox’s C. C. 217; Wharton’s Cr. L. [8th ed.], §§ 1155, 1160; Skiff v. People, 2 Park. Cr. 139-147; Thomas v. People, 34 N. Y. 351; People v. Oyer & Terminer, 83 id. 449; Rex v. Pywell, 1 Stark. N. P. C. 402; R. v. Munves, 7 Mod. 315; R. v. Lara, 6 T. R. 565; R. v. Bower, Cowper, 323; Reg. v. Keighley, 7 Cox’s C. C. 217; Queen v. Kenrick, 5 Q. B. 62; Wheatley's Case, 2 Burr. 1127.)</p>

The motion was founded upon the affidavit of. said defendant, which stated in substance that he was a resident of Boston, and came to the city of New York for the purpose of attending at the first meeting of creditors of Edward Matthews, á bankrupt, the husband of the plaintiff, held there before a register in bankruptcy; that defendant “ attended said meeting solely as a creditor and witness, to prove certain debts and claims against the estate of said bankrupt, to…

This action was brought upon an administrator’s bond. In August, 1870, one Halph Dawson was appointed by the surrogate of the county of New York, administrator, with the will annexed, of Edward Harrison, deceased, and letters were issued to him. The defendants became his sureties. In February, 1878, Andrew Harrison, one of the legatees, . filed his petition with the surrogate, asking for a revocation of such letters, and that the administrator be required to account.

<p>Appeal from judgment of the General Term of the Su-' preme Oom't, in the first judicial department, entered upon an order made January 28, 1881, which affirmed a judgment in favor of plaintiffs, entered upon a verdict. (Reported below, 23 Hun, 61.)</p> <p>This was an action under the statute, brought by plaintiffs as administrators of Israel Randall, deceased, for a trespass alleged to have been committed during the life-time of the deceased, upon lands owned by him.</p> <p>The material facts are stated in the opinion.</p> <p>The deed made by Brady to Randolph, by which it is claimed that Randolph became vested with the title to the loans in quo, coupled with the agreement of Randolph to Brady, was in fact only a mortgage; and although Randolph procured the same to be recorded as a deed, he derived no advantage therefrom, not having the instrument operating as a defeasance recorded with it at the same time. (3. R. S. [5th ed.] 45, § 3; White v. Moore, 1 Paige, 551.) Every deed given as a security, though it be an absolute conveyance in terms, is a mortgage; and the fact that it was intended as a security may be shown by parol or written extrinsic evidence. (Horn v. Keteltas, 46 N. Y. 605, 609; Stoddard v. Whiting, id. 632; Carr. v. Carr, 52 id. 251; Murray v. Walker, 31 id. 390; Morgan v. Shinn, 15 Wall. [U. S.] 110; Strong v. Stewart, 4 Johns. Ch. 107; Odell v. Montross, 68 N. Y. 499.) A conveyance which is once a mortgage is always a mortgage, and no agreement in or outside the instrument will change it into a conveyance. (Clark v. Henry, 2 Cow. 324; Henry v. Davis, 7 Johns. Ch. 41; Bell v. Mayor, 10 Paige, 49.) As a rule a conveyance of real or personal property, accompanied by an agreement in writing or by parol, on the part of the grantee, to reconvey the property in case the grantor, his heirs or assigns, shall pay within a certain time a sum which is the amount of a loan or an antecedent debt, and the interest thereon, is construed to be a mortgage. (Peterson v. Clarke, 15 Johns. 205; Lane v. Shears, 1 Wend. 433; Brown v. Dean, 3 id. 208; Palmer v. Gurnsey, 7 id. 248; Hall v. Van Cleve, N. Y. Leg. Obs. 281; Elliott v. Moore, 53 Barb. 285; Holmes v. Grant, 8 Paige, 258.) Such defeasance need not necessarily be of the same date as. the conveyance. (Willard on Real Estate, 440; 4 Kent’s Com. 141; Holmes v. Grant, 8 Paige, 248; Horn v. Keteltas, 46 N. Y. 606; Dey v. Dumham, 15 Johns. 555; Sopler v. Signor, 37 Barb. 329; Clark v. Henry, 2 Cow. 325.) When the relation of mortgagor and mortgagee exists, such transactions as the present case discloses are regarded with jealousy by courts of equity and will only be sustained when bona fide and in all respects fair, and for adequate consideration. (Odell v. Montross, 68 N. Y. 504.) The fact that Brady did not agree to pay the debt is only a circumstance to be considered, but is by no means conclusive. (Horn v. Keteltas, 46 N. Y. 611.) The intention that the deed should not be an absolute conveyance may be evinced by acts as well as by parol or written declaration. (Lane v. Shear's, 1 Wend. 433.) The entry upon and continued possession of the premises by the defendant were justifiable, and he is- not liable in an action of trespass therefor. (Woody. Layfayette, 68 N. Y. 181, 190; 2 Waterman on Trespass, 527; Smith v. Burtis, 6 Johns. 218; Fonner v. Johnson, 78 N. Y. 617.)</p> <p>Where the title of one of the grantors is admitted, as in this case, or established, the burden is not upon the plaintiff of proving possession in the subsequent grantors. (Stevens v. Hauser, 39 N. Y. 302; Miller v. L. L. R. R. Co., 71 id. 380.) Where no one is in possession the party having the title or right of possession may maintain trespass; and the owner of wild and uncultivated land is to be deemed in possession so as to maintain trespass until an adverse possession is clearly made out. (Wickham v. Freeman, 12 Johns. 183; Leland v. Tousey, 6 Hill, 328; Wood v. Lafayette, 68 N. Y. 181; Wohler v. Buff, & S. L. R. R. Co., 46 id. 686; Adams v. Farr, 2 Hun, 473; Robinson v. Wheeler, 25 N. Y. 252; Van Brunt v. Schenck, 11 Johns. 385; Van Rensselaer v. Van Rensselaer, 9 id. 377; Van Rensselaer v. Radeliff, 10 Wend. 639.) A deed absolute on its face may be a mortgage, but the burden of the proof is on the party setting up a defeasance. (Holmes v. Grant, 8 Paige’s Ch. 243.) If the agreement offered to establish a defeasance be entered into subsequent to the principal deed, and not in pursuance of the original agreement, it will not constitute a mortgage. (1 Wash. 515.) A sale at an agreed price paid, with an agreement that the vendor may repurchase at an advanced price, is an agreement for a repurchase, not a defeasance. (Glover v. Payne, 19 Wend. 518; Browne v. Dewey, 2 Barb. 28; Baker v. Thrasher, 4 Denio, 493; Whitney v. Townsend, 2 Lans. 249; Maccauley v. Porter, 71 N. Y. 173.) Adequacy or inadequacy of consideration paid is a circumstance to show whether a transaction is a deed or a mortgage, but not conclusive. (Holmes v. Grant, 8 Paige, 243 ; Horn v. Keteltas, 46 N. Y. 606.)</p>

(Reported below, 23 Hun, 45.) The complaint alleged in substance the recovery of two judgments in 1875, against one Rosekrans, which were owned by plaintiff; that prior to the recovery of the judgments, said Rosekrans being the owner of certain real estate described, conveyed the same to one Blackmore, who, by the procurement of Rosekrans, conveyed the same to defendant’s testator, the original defendant; that said conveyances were without consideration, and in pursuance of…

<p>Notice of dishonor of a promissory note, where the parties live in different “ places between which there is a communication by mail, and several mails each day, must be posted by the first practicable and convenient . mail of the next day after dishonor or notice of dishonor.</p> <p>Ordinary and reasonable diligence, however, only is required, and as to what is the first practicable and convenient mail depends upon circumstances, and maybe controlled by usage and the condition, situation and business engagements of the party required to give notice.</p> <p>Whether sufficient diligence has been shown, the facts being undisputed, is a question of law.</p> <p>In an action by a second against the first indorser upon a promissory note, made in the city of New York by a foreign corporation, payable at its office three years after date, it appeared by plaintiffs evidence, that the note was on the last day of grace presented for payment by a notary at an office in said city, where the corporation either then or a short time before had its office, and upon which was a sign indicating that it was the company’s office. Payment was demanded of the person in charge, and the note was protested for non-payment. Defendant’s evidence tended to show that said office was the last office occupied by the company in this State, but that at the time of demand it had ceased to be such office. Held, that a defense-based upon the ground of want of proper presentation and demand was untenable ; that if the office, when demand was made, was the office of the company, presentment was properly made there ; if not then the office, as it was its last office, and as the corporation had removed its office and left the State, no presentment and demand in any place was necessary to. charge the indorsers.</p> <p>Also held, that the last proposition was unaffected by the fact that the complaint alleged presentment and demand ; this did not preclude proof that presentment and demand had been waived or rendered unnecessary.</p> <p>It appeared that the note was protested March 3, 1873. On the next morning the notary caused notices to be drawn up, which he signed, one to defendants, the first indorsers, one to S., plaintiff’s testator, the second indorser, and one to R., cashier of a bank at T., in Maine, the last indorser. These notices the notary inclosed in an envelope directed to R. at T., and gave the package to his clerk before 2 p. at. to mail in the N. Y. ,postr office. It was the duty of the clerk to mail letters so delivered, and he had been in the habit of so doing for years. The clerk, as a witness, testified that he had no particular recollection of this letter, but that he mailed notices of protest between 1 and 2 F. m. that day, and all the letters that were given him. Letters mailed at the time specified, if the train made connection at Boston, would reach T. on the evening of March 5th; if not, they would reach T. at noon of the 6th. The notices reached their address March 5th or 6th, and R. by the next mail mailed to S. at W., his place of residence, the notices addressed to him and to defendants. They were received by S. on the evening of March 6th.. There were two mails daily between T. and W., a distance of four miles, one leaving at 10 A. M., the other at 1:40 F. m. Held, that the evidence established that the notices were mailed in time at N. Y., and left no question for the jury.</p> <p>S., who was over eighty years of age, on the morning of March 7th went to T. to consult counsel, an'd there mailed to defendants the notice addressed to them at N. Y., by the mail leaving at 1:40 p. m, which passed through W; at 2 f. m. The first mail leaving T. at 10:10 A. m. closed at W. at 9:80 A. M. Held, there was no error in holding, as matter of law, that due diligence was used by S. in posting the notice.</p>

<p>This action was brought to recover for services rendered; judgment was rendered against L., the original defendant, by default,which was assigned by D., the original plaintiff, to S., with a covenant that a sum specified was due thereon. The default was afterward opened, and L. answered. After the issues were referred for trial, D. died. Plaintiff, as his administratrix, was, upon motion, substituted, and the prosecution directed to be continued before the referee. The order recited that S. claimed an interest in the cause of action, and gave plaintiff leave to serve a supplemental complaint, making him a party defendant. Such complaint was served, which repeated the allegations of the original complaint; alleged that S. claimed an interest in the sum due, .and demanded judgment for the amount, and that it be adjudged that S. has no interest. S. answered, setting up the assignment to him and asking’judgment against L. for the amount due, and that plaintiff be adjudged to have no claim. The referee found the facts as to the cause of action substantially as set forth in the complaint, the assignment and ownership thereof by S., and as conclusion of law,' that he was entitled to recover of L. the sum claimed, with interest, and directed judgment accordingly. KM no error; that the court had the power to adjust the rights, fiot only between the plaintiff and defendants, but as between the co-defendant. (Code, §§446, 447, 452, ’1204.)</p>

The nature of the action and the facts .are set forth in the opinion. The law declares that the covenant of seizin, if broken, is broken the moment it is made. (Bac. Abr., tit. Covenant, H, p. 594, B, 595; Greenby v. Willcocks, 2 Johns. 5; Hamilton v. Wilson, 4 id. 71; McCarty v. Leggett, 3 Hill, 134; Coit v. Reynolds, 2 Robt. 658; Abbott v. Allen, 14 Johns. 253.).

(Reported below, 23 Hun, 367.) This was an action for an accounting, brought by the executor of a deceased copartner against the surviving partner. ' The copartnership was in the book and stationery business, which has been carried on for many years in the city of Buffalo; first by Theodore Butler, the deceased, who afterward took his son, the defendant, into partnership, and the business was thereafter continued under the copartnership name-of “ Theodore Butler & Son.”…