Volume 9 — New York Supreme Court Reports

The prisoner was indicted in the Court of Sessions of Chemung; county, for burglary in the third degree, December, 1873.

<p>Partnership—Betiring partner — surely to one assuming firm obligations of—when his liability as surety extinguished—Afivrmaiive of the issue.</p> <p>When one partner transfers his interest in the firm to a third person, who assumes all the obligations of the retiring partner, and a note of the original firm, given prior to such transfer, is assigned to the person entering into the firm and by him transferred after maturity to an outside party, held, that such note could not be enforced by the latter against the partner who had retired from the firm, as he was, as between himself and the new firm, a mere surety for its payment, and, on its transfer to one of the partners of the new firm, such liability on his part was extinguished.</p> <p>When the making, delivery and transfer of a note sued upon is admitted, but the indebtedness is denied, and the answer further alleges that the plaintiff is not the real party in interest, the affirmative of the issue is with the defendant.</p>

Exceptions ordered to be heard in the first instance at the General Term, a verdict having been rendered for the plaintiff, under the direction of the court. The plaintiffs were members of a voluntary association for the manufacture of cheese at' Lineklaen, New York. Thomas Hall and others were appointed a committee to sell the cheese made. The committee sold a quantity of cheese to Darius W. Benjamin, Qnincey Matthewson, and the defendant, Daniel.

Exceptions ordered to be heard in the first instance at General Term. The court below dismissed the. plaintiff’s complaint. The action was brought to recover the amount due on a promissory note for $500, made by John Westover to Charles H. Strever, and by the latter transferred to the plaintiff. The defense set up was, that the note was usurious.

On or about March 25th, 1865, a package of $200 in money was delivered to the Adams Express Company as common-carriers, at Wilmington, N. C., by the plaintiff, to be transported to Hudson, N. Y. The agent of the company at Wilmington, upon receiving the package, delivered to the plaintiff a receipt. This receipt was produced upon this argument, under a stipulation of counsel, for the inspection of the court.

Motion by defendant to correct order of General Term, so as to allow defendant full costs, on appeal to this court. The defendant demurred to the complaint. The demurrer was overruled at Special Term, with leave to defendant to answer on payment of costs of demurrer. The defendant appealed to this court, from such order.

Appeal by plaintiff from a judgment, rendered on the decision of the court, dismissing plaintiff’s complaint without costs to either party.

<p>Appeal from a judgment, entered upon the report of a referee. The facts are stated in the opinion.</p>

The defendant' applied to the city of Troy for leave to erect a wooden building in that city. After the application had been referred to a committee of the common council, as is stated .in the opinion, the following paper, signed by two members thereof, was given to the defendant: Consent is hereby given to John Winters to erect a two story wooden building, on lot number 24, North Third street,---, said building to have a tin roof, and to be filled in with brick. JOHN MARE.

On the 12th of September, 1868, one Kinny was the owner of a horse, for the recovery of which this action was brought. On that day he gave a chattel mortgage on the horse, with other property, to one Ellis, which mortgage was, on the 29th of September, 1868, duly filed in the proper clerk’s office.

This case comes on to be heard on the return of the defendants to a common law writ of certiorari, awarded by a judge out of court, requiring them to return the proceedings of said commissioners in appraising the damages, and assessing the benefits resulting from the laying out, widening and extending Union avenue, in the village of Saratoga Springs, from Nelson street to Circular street, under chapter 623, of the Laws of 1870, page 1442, entitled “An act to provide for…

favor of plaintiff. ■ The action was brought for cutting and carrying away timber from a farm of land, in Chenango county, which, prior to the 1st of April, 1869, was owned by one Perry Rogers, and, on that day, was conveyed to the plaintiff. On the 10th of February, 1869, Rogers made a contract with the defendant, by which he sold him 100,000 feet of hemlock timber, at six dollars per thousand, to be cut near a certain line, which was designated.

Justice Bookes, without a jury. The action was ejectment, and the question to be determined was the validity of certain proceedings had before the surrogate of Saratoga county, for the sale of the real estate of an intestate, for the payment of debts, by virtue of which the defendants claimed title. The plaintiff showed title as one of the heirs-at-law of Harvey Granger, deceased, who died August 1, 1846, seized in fee of the premises in question.

Justice Learned, granting an injunction against the defendants, restraining them from doing' certain acts upon premises claimed by the plaintiff. The complaint charges that the plaintiff is the owner of a certain ten-acre lot in Rosendale, Ulster county, containing cement stone; and that the defendants have entered upon said lot, and are attempting to carry away such cement stone.

The facts found are as follows: On the 24th day of January, 1859, James Roberts died, leaving him surviving, his wife and heirs-at-law, who are his legatees, all of whom but the wife are defendants.

This was an appeal from a judgment, entered on the finding of a referee appointed pursuant to statute, on a claim presented against the estate of defendant’s intestate.

This action was brought to restrain the defendants from drawing and using more water than was sufficient for certain engines and machinery in the defendants’ mill, and from applying the same otherwise than in the most skillful, economical manner, etc. The case was tried at a Special Term of the Supreme Court, held in the county of Saratoga, in January, 1873, before one of the justices of this court.

<p>Appeal from an order of the Special Term, refusing a writ of mandamus against the board of supervisors of Delaware county.</p> <p>The opinion 'of Balcom, J., at the Special Term is reported in 47 Howard, at page 24.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury at Kings County Circuit. The facts are stated in the opinion.</p>

On the 15th of August, 1871, the plaintiff entered the defendant’s car at the corner of Eighth avenue and Thirty-fourth street, in the city of New York; was received as a passenger on such car, and carried to the foot of Grand street.

<p>Motion for a new trial after an interlocutory judgment, rendered at the Special Term of Kings county. The facts are stated in the opinion.</p>

Isaac Bugsbee, the defendant’s intestate, an unmarried man, without family, came to the defendant’s house about the 1st of May, 1870, and, being sick, requested her to keep him a few days. He was sick with a cancerous affection of one of his eyes, and with a carbuncle of unusual size located upon his back. These sores required frequent dressing, and the discharge from them was very offensive.

The appellant was, in 1871, duly appointed executor of the last will and testament of Lydia J. Carle, deceased. On the 29th of January, 1873, the respondent, a legatee under said will, procured from the surrogate a citation, requiring the said executor to appear before him and render an account of his proceeding as such executor. From the decree entered upon such accounting, this appeal was taken. Other facts are stated in the opinion.

<p>Appeal from a judgment entered on the report of a referee in favor of plaintiff.</p>

The defendants were bankers, and sold drafts payable in the different countries of Europe. They furnished to their agent blanks of the following form : Exchange for---- On demand of this first of exchange (second unpaid) pay to the order of--, value received, and charge the same to account of G. B. & Co., as per advice from them.

The defense was that the mortgage had been released and discharged. The evidence tended to show that at the time the release was executed, the mortgage had been assigned, and was then owned by the brother of the plaintiff and was afterward reassigned to the plaintiff. During the trial, the plaintiff offered to show what took place at the time of the delivery of the release. This evidence the court excluded.

The complaint alleged that the following agreement had been entered into between the parties to this action: “ An agreement for the term of one year from the 20th day of July, 1869, by and between E. G. Kelly, Esq., of the first part, and B. B. Johnson, for self and O. T. Childs, of the second part, for the purpose of manufacturing of oil at the works of said Kelly. “ Witnesseth, that said Kelly, owning the fixtures and appurtenances belonging to the so-called New York City…

The action was brought to set aside an assessment for grading and paving Franklin avenue, in the city of Brooklyn, as a cloud upon plaintiffs’ title. The court, at Special Term, found that the assessment in question was illegal and void, and ordered that the same be set aside and vacated.

This action was brought to foreclose a mortgage made by the defendants to John H. Sterling, on certain real estate in the city of Brooklyn, the separate property of the defendant, Amelia E. Burnham. The mortgage was assigned by Sterling to the plaintiff. The bond and mortgage, dated 20tli June, 1870, recorded 23d June, 1870, were given to secure the sum'of $10,000. The assignment bore date, 23d June, 1870, and was recorded, 29th June, 1870.

<p>Streets and pubUo highways— to what uses they may tie appropriated—statues ma/y be e/reeted in.</p> <p>The streets in a populous city or village may be appropriated to other purposes than mere places of passage; they may be used and appropriated for the health, trade, commerce and convenience of the public, and for any public use which is consistent and in harmony with their use as public highways.</p> <p>The law will sanction the erection of a work of art, such as an ornamental statue, in the public highway, when it does not obstruct travel; and such erection is not a trespass on the right of the owner of the soil in such highway.</p>

This is an appeal by the defendant from a judgment entered in Ulster county, upon the report of a referee in favor of the plaintiffs. The question involved in the case is the right of a riparian owner of lands, under a patent from the State, to erect a dock for the purposes of commerce, and the beneficial enjoyment of his own property.

<p>Foreign insurance companies—effect of failure of, to comply with State laws—when estopped from setting up such failwre—Decision of motion — effect of—who bound by.</p> <p>Where the receiver of an insurance company, dissolved by an order of the court, entered into a contract in the State of New Jersey with a foreign insurance company, for the reinsurance of the outstanding risks of the dissolved company, which contract was ratified and approved by an order of the court; held that the foreign company would be estopped from alleging, in its own defense, that the contract was made in violation of the laws of this State, relating to foreign insurance companies; and that, as it would be liable upon the contract, it was entitled to insist upon its fulfillment upon the part of the receiver.</p> <p>Where the court allows any person to appear and be heard upon the argument of a motion, in the decision of which he is interested, such hearing is as effectual as though such person had received notice of the motion, and had been named as a formal party to it; and he is fully concluded by the disposition which the court may make of such motion.</p>

This action was brought to recover damages for a malicious arrest of the plaintiff by the defendants, in an action brought in the Supreme Court of Rhode Island. The defendants were book-publishers in New York, and employed the plaintiff to take charge of their store in Providence.

On December 3, 1873, Samuel Phillips filed in the Supreme Court the following petition: “ The petition of Samuel Phillips respectfully shows to this court: “ That at the times hereinafter mentioned, your petitioners were, and still are, the owners, respectively, of the lots hereinafter described. “ That on the 27th day of January, 1869, an assessment list was confirmed, whereby an assessment for flagging Twenty-ninth street, between Tenth and Eleventh avenues, in the city of…

The complaint alleged that defendant was a commission merchant doing business in Augusta, Ga. That January 20, 1865, as agent for the plaintiff, he had in his possession 441 packages of tobacco, of the value of $18,964. That he sold said tobacco for that sum, and had neglected to account for the proceeds of such sale.

Appeal taken by the Mayor, etc., of New York, from an order vacating an assessment. The petitioner filed in the Supreme Court the following petition: “ The petition of Eugene Ketteltas respectfully shows to this court: “ That at the times hereinafter mentioned your petitioners were, and still are, the owners respectively of the lots hereinafter described.

<p>Mandamus — application for too broad — effect. •</p> <p>When an applicant for a mandamus asks for more than he is entitled to, the-application is properly denied, though the applicant may he right in other respects.</p>

F. Gr. Shanks was discharged from the custody of the sheriff of Kings county. The opinion of Mr. Justice Fancher is reported in 15 Abbott (N. S.), page 38. The facts are stated in the opinion.

. Appeal by plaintiff from an order of a Special Term of the Supreme Court, refusing, on his application, to settle issues in the cause, to be tried by a jury.

<p>Appeal from a judgment in favor of the plaintiff, recovered on a trial before the court at Special Term.</p> <p>The action was brought to have a deed of certain premises in the city of New York, executed by one Cornelius Westervelt and his wife to the defendant in March 1861, declared a mortgage, and for a redemption. The answer alleged that the deed was an absolute conveyance, and set up by way of counter-claim, a claim for rent of the same premises, under an agreement alleged to have been made by the defendant with the plaintifij on the 1st of May, 1867. The justice before whom the cause was tried, found, as matter of law, that the deed was an absolute conveyance, and he ordered judgment for the amount of the rent.</p>

On the 26th of May, 1871, at about half-past ten o’clock in the evening, the plaintiff’s intestate was injured so severely by collision with an ambulance, driven by an employe of the commissioners of public charities and corrections, that he died within ten days thereafter.

Appeal by defendant from a judgment in favor of the plaintiff, and from an order denying a motion for a new trial, made upon the minutes of the court; and by plaintiff from an order setting aside a verdict, and directing a new trial on the ground of newly discovered evidence, and from an order denying a stay of proceedings during the pending of the appeal.

Appeal, by the Mayor, etc., of Hew York, from an order of the Special Term vacating an assessment. This case is in many respects similar in its facts to PhilVups v. The Mayor, ete., cunte, page 212.

This action was brought to set aside as fraudulent an assignment for the benefit of creditors made to the defendant Butterfield by De Forest, Armstrong & Co. The plaintiff charges, on the ground of fraud, that the assignment sought to be avoided, preferred Butter-field for $298,000, while in fact no sum whatever was due to him; that in fact the alleged loans were purchases of notes from the assignors, and that the object of the assignment was to cover that amount not due him.

<p>Appeal from order — when may he taken to the General Terrm—Judgment hy default — when opened—National hank — effect of appointment of receiver of— Affidavit of merits — when may he controverted.</p> <p>An appeal may be taken to the General Term, from an order aflecting a substantial right, even though it may be of a discretionary character. The term substantial includes all positive, material and absolute rights, as distinguished from those of a merely formal or unessential nature.</p> <p>A party will he relieved from.an excusable default, where he appears to have merits in his favor, and the application is made promptly after the discovery of the default. A probable defense to the claim made, alleged by the party in good faith, is sufficient; and the usual evidence required of its existence, is an affidavit of merits, which, under ordinary circumstances, cannot be controverted. But in cases where the good faith of the party may well be doubted, affidavits may be received to confirm the propriety of the doubt; and the court may require a disclosure of the case, in order to determine whether the application be made in good faith, and not for the simple purpose of delay.</p> <p>Where a receiver of a bank has been appointed under the national currency act, the bank still continues to exist, and a suit is properly instituted against it, and the defense should be made by it.</p> <p>Bank of Bethel v. Pahquioque Bank (14 Wall., 383) followed.</p> <p>A receiver was appointed, under the national currency act, of the books, etc., of the defendant, in September, 1878, who entered upon the discharge of his duties. On March 4, 1874, the summons in this action was served on the president of the defendant, who took no steps to defend the action, nor did he inform the’ receiver, or other officers of the bank, of such service. On the seventeenth of April, judgment was entered against the defendant. On the eleventh of May, an application was made by the receiver and some of the defendant’s directors, to. set aside the j udgment, and for leave to answer. Held, that, as the application was made with reasonable diligence after the discovery by the receiver of the default, and as such default was excused by showing the intentional concealment of the service of the summons, and the probability that the judgment had been recovered by the connivance of the officer on whom the summons was served, it should have been granted.</p>

<p>Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term. The facts are stated in the opinion.</p>

<p>Appeal from an order made at Special Term, denying a motion for an injunction to restrain the mayor, comptroller, and commissioners of public works, from executing a contract with the Mutual Gas-Light Company, to light some of the street lamps in Hew York.</p>

This action is brought to recover money which the plaintiff, by mistake, paid to the defendant for a local improvement. The plaintiff intended to pay the assessment on his own land, but by mistake paid that on the adjoining lot.

Appeal by the defendant Hoge from an order denying an application for an inspection and production of papers. This action was brought to recover moneys deposited by the plaintiff’s intestate with the defendants, his bankers. The firm of William Hoge & Co., composed of the defendants, were bankers in the city of New York and received large deposits from the deceased between 1852 and 1856.

The facts are stated in the opinion. The plaintiff did not rely upon the representations of the defendant. (McKyring v. Bull, 16, N. Y., 297; Wright v. Delafield, 25 id., 266; Paige v. Willet. 38 id., 28; Werner v. Borden, 49 id., 286.) Personal knowledge of the falsity of the representations on the part of the defendant must be shown. (Craig v. Ward, 3 Keyes, 387; Comstock v. Ames, 1 Abb. Ct.

The plaintiffs are merchants, carrying on business in the city of New Tort, and the defendants are engaged in business in China.' This action was brought to recover damages for a failure, on the part of the defendants, to purchase and ship certain silks, in accordanee with instructions sent to them by the plaintiffs. The goods were to have been purchased and shipped before September 1st, 1865.

<p>Discharge in bankruptcy—when allowed to be setup in supplemental answer — Laches—Judgment—lien of.</p> <p>On the 6th of July, 1866, the plaintiffs recovered judgment in this action by default. Subsequently the defendants secured leave to answer, the judgment to stand as security. An answer was served November 13th, 1867, and on the 26th of October, 1868, the defendant Hansen was discharged as a bankrupt. In February, 1871, a trial was had, and a verdict recovered by the defendants, which was set aside by the justice holding the circuit. On the 12th of June, 1874, as the cause was about to come on for trial, an order was made allowing the defendant to set up his discharge by way of supplemental answer, without prejudice to any lien the plaintiffs had upon any real estate under and by virtue of thdb judgment, standing as security. On appeal from this order, held, that the effect of the order was to entirely destroy any lien which the plaintiflfe might have on the real estate of the defendant, by virtue of the judgment.</p> <p>The discharge of the debt must abrogate the lien which the judgment created for its payment; for without the debt, there could be no judgment.</p> <p>Held, further, that the lapse of time was so great, between the period when the discharge was granted, and the application made for leave to plead it as a defense, that the motion should have been denied for that reason.</p>

<p>Ohamge of venue— Ohap. 239, Lems of l&TA—Laches.</p> <p>The provisions of chapter 339, Laws of 1873, providing for the removal of causes into the Supreme Court, and a change of the place of trial, are not affected by the unconstitutionality of that portion of the chapter, which provides for the extension of the jurisdiction of the courts mentioned in it.</p> <p>A motion to change the place of trial, for any reason, must be made with reasonable diligence after issue has been joined in the action.</p>

<p>Adultery — action for divorce on account of—issues in—how tried—Code, §253.</p> <p>In this action, brought by the plaintiff to obtain a divorce on the ground of adultery, the defendant moved for a perpetual stay of the plaintiff’s proceedings, upon the ground that in a previous action for a divorce brought by the defendant in the Superior Court, the plaintiff herein was found guilty of adultery. The fact of this preceding adjudication was alleged by way of defense in the defendant’s answer. Held, that the motion was properly denied. The pleadings in this action having resulted in an issue of fact, it must be tried in the manner prescribed by the Code, and not by way of special motion on petition and affidavit.</p>

Appeals from two orders, one adjudging the plaintiff in contempt, the other denying a motion to set aside an order made for the examination of the plaintiff. cited Johnson v. Pinney (1 Paige, 646); Palmer v. Adams (22 How., 375); Brooks v. Schultz (5 Rob., 656); Moses v. Banker (7 id., 131). cited Fisk v. Chicago & Rock Island R. R. Co. (3 Abb. [N. S.], 430); Ramsey v. Gould (57 Barb., 398); Ramsey v. Erie R. R. Co. (8 Abb. [N. S.], 174.)

<p> Contempt—order adjudging pan'ty guilty of—Irregulmity—when waked—must he specified in notice of motion. </p> <p>Where an order was made, requiring the defendant to appear at a certain time and place specified, to show cause why he should not be attached for a contempt; on the return of which, an order was made adjudging him guilty of contempt, and directing his punishment therefor; and it did not appear that he was misled or failed to appear, in consequence of the use of the term “ attached,” in place of “punished; ” held, that, as the use of that term did not appear to have prejudiced the defendant, and as the order to show cause had failed to specify the irregularity, as required by Buie 46, that the order should be affirmed.</p>

This action was brought on a promissory note for $2,000, and an inquest was taken therein on the 12th of June, 1874. On the nineteenth day of June, the plaintiff procured an order of arrest, on the ground that the defendant had disposed of his property with intent to defraud his creditors. The defendant was arrested on the 20th of June, 1874, and, on the twenty-fourth, judgment was entered in favor of the plaintiff.

This action was brought on a check or draft, drawn in May, 1861, by the Bank of Georgetown, South Carolina, in favor of the plaintiff upon the defendant, with which the said Bank of Georgetown then had more than the amount of the check on deposit, on the ground that, by custom and agreement, the defendant undertook to pay the checks of the Bank of Georgetown, to the extent of the funds' which it had on deposit for that bank, and upon the further ground, that the Bank of…

The action is brought against the defendant for damages, by reason of the defendant’s having telegraphed to the firm of Tappan, McKillop & Co., in Cincinnati, the words, “ It is rumored that Jeffras,. Seely & Co. [the plaintiffs] are in trouble.” Other facts are stated in the opinion.

The facts are stated in the opinion. The levy under the attachment did not give a lien within the meaning of the deed. (Matter of Bellows, 3 Story, 428; Ex parte Foster, 2 id., 131.) The plaintiff acquired a lien by the levy. (Ex parte D'Obree, 8 Ves., 82; Ames v. Wentworth, 5 Met., 294; Ives v. Sturges, 12 id., 462; Watkins v. Pinkney, 3 Edw.

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.</p> <p>The facts are stated in the opinion.</p>

This action was brought to recover the possession of personal property, consisting of saws, belting and machinery, previously attached to, and used in a saw-mill. They were detached from the mill by the owner, and removed to the defendant’s house, and there stored. The mill property was subsequently sold at auction, and the plaintiff claims that the property which had been thus used with the mill, and as fixtures thereof, were at the same time sold.

The action was brought to recover money collected by the defendant from the plaintiff', in February, 1868, and January, 1869, for an assessment imposed upon his lands by three commissioners appointed, in pursuance of chapter 774, Laws of 1867, to make an improvement upon and through the land of the plaintiff and others, in the town of Royalton, for the purpose of draining such lands.

This is an action in equity, brought by the committee of a lunatic to set aside a sale of a farm to the lunatic, made to him while a lunatic by the defendant, and to rescind said sale, and cancel the satisfaction of a mortgage given by said lunatic, and for other relief.

<p>Motion for" new trial, after nonsuit at the Livingston Circuit, and on exceptions ordered to be heard at General Term in the first instance. The facts are stated in the opinion.</p>

The appeal in the first action, is from an order denying a new trial in an action of trespass, commenced in a justice’s court, and removed to this court on a plea of title, etc. The appeal in the second entitled action, is from a judgment entered at the circuit, in an action of ejectment, and from an order denying a new trial.

<p>Appeal from judgment of justice of the peace — notice of appeal — appellant restricted to grounds therein stated.</p> <p>On appeal from a judgment rendered by a justice of the peace, only those grounds will be considered, which are particularly taken and specified in the notice of appeal.</p>

<p>Surrogate — powers of.</p> <p>A surrogate has power to allow a person who has proposed a will for probate, to withdraw the same, and discontinue the proceeding.</p>

36, against the defendant, appellant. The court found, among other things, as matters of fact: Fifrst. That in the year 1868, one Albert Helms was in the possession, under a contract of purchase, and was the equitable owner, of about thirty acres of land in the town of Randolph. That Thomas J. Chamberlain, Amos Dow, Alonzo Kent and Charles P. Adams, as executors of the last will and testament of Benjamin Chamberlain, deceased, held the legal title to said land.

The action was for the claim and delivery of 7,000 bushels of ■ barley malt, seized by the defendant, a collector of taxes, under a tax warrant issued by the comptroller of the city of Buffalo. The plaintiff reclaimed, and took the malt in this action. Statutes relative to imposition of taxes, are mandatory.

The action was brought to recover rent for a half year’s occupation of certain premises, leased by the defendant.

A herd of cattle belonging to the plaintiff, escaped from his inclosure, and strayed first into the highway, and thence, through a gate in a fence, erected by the defendant for the use of the owner of the land, pursuant to chapter 140, Laws of 1850, and chapter 282, Laws of 1854, upon the tracks of the defendant, where they were killed.

<p> Complaint—Cov&rtwre—when must be set vp in answer. </p> <p>Where a complaint sets out a cause of action on its face, and the defendant intends to interpose the defense that the plaintiff is a married woman, and has no separate estate, or carries on no separate trade or business, such defense must be set up in the answer.</p>

The jury rendered a verdict for plaintiff for $24.20, for which amount, with costs, judgment was entered. On the trial, the plaintiff offered in evidence a copy of a verified account served on the executor, and also an offer to refer, which were received on the question of costs, under objection and exception by the defendant’s counsel; and defendant also offered to read an entry from the testator’s books, testifying that he read the same to the plaintiff.

<p>Declarations of owner of property — when admissible in suit by — Code, § 399 — what testimony inadmissible under.</p> <p>In an action against a constable, to recover certain property attached in a suit against Mary A. Wooster, on the ground that the property belonged to the plaintiff’s intestate, his declarations to third persons as to the ownership of such property are competent; but the evidence of the plaintiff in the attachment suit, as to conversations had with the intestate, is inadmissible within section 399 of the Oode.</p>

The action was brought by the plaintiff, to recover the balance of $300, advanced by a firm of commission merchants in JSTew York city, to the defendant, on a consignment of a quantity of hops for sale. Plaintiff, who was a member of the firm, claimed to be the sole owner of the demand, by. transfer of the other partners to him.

Certain property in the city of Syracuse was taken for the purpose of extending a street, and the. property benefited by the improvement, was assessed for the damages sustained by the owners of the property taken. Among the property assessed was land belonging to the Presbyterian church.

The plaintiff brought this action to recover of the defendant, sole commissioner of highways of the town of South Valley, for injuries sustained through the falling of a bridge in the said town, in July, 1872, while the plaintiff, with a team and loaded wagon, was passing over it. The bridge, together with the highway, on each side, leading thereto, was on the Allegany Indian reservation, although within the boundaries of the town of South Valley.

<p>Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee.</p> <p>The facts are stated in the opinion.</p> <p>cited Birdsall v. Patterson (51 N. Y., 43); Simmons v. Sisson (26 id., 264); Lobdell v. Lobdell (36 id., 327); Hildebrant v. Crawford (6 Lans., 502); Card v. Card (7 Trans. App., 146).</p> <p>cited Hatch v. Peugnet (64 Barb., 190); Lyon v. Snyder (61 id., 172); Simar v. Canady (53 N. Y., 298); Minier v. Minier (4 Lans., 421).</p>

In May, 1852, The Jamestown Farmers’ Insurance Company was incorporated under the act to provide for the incorporation of insurance companies, passed April 10th, 1849, and had an office and did business in Jamestown till May 3d, 1858, when its property was sequestered for the payment of its debts, and in May, 1860, the plaintiff was appointed receiver of all the effects of the said company, and qualified and acted as such receiver.

The trial of this action was commenced at the circuit, a jury impaneled, and a witness sworn and examined, when the court ordered “ the cause referred to Cyrus Sweet, sole referee, to hear and determine the same, costs to abide the event.” The cause was then tried before the referee, and resulted in favor of the defendants. The defendants claimed to tax two trial fees, one before the referee, and one for a trial at circuit.

<p>Appeal from a decree of the surrogate of the county of Erie, admitting to probate the will and codicil of Maria B. Hazard, deceased.</p>

<p>Appeal from a judgment in favor of the plaintiff. The facts are stated in the opinion.</p>

This action was brought on a joint and several promissory note, reading as follows: “ $1,000. “ One year from date, for value received, we, or either of us, promise to pay Phoebe Benjamin or bearer one thousand dollars, with interest. “LYMAN ARNOLD. “CHARLES M. SHTTLTS. “HIRAM SHAVER. “ GEORGE W. SNELL.” The defendants Shults, Shaver and Snell alleged in their answer, and offered to prove upon the trial, that they signed the note simply as sureties, and for the accommodation…

This action was brought to obtain possession of a canal boat, in which the plaintiff claimed a special property by virtue of a chattel mortgage, bearing date September 5,1870, executed to him by one Garvey, to secure a part of the price of building the boat. Á copy of the mortgage was filed in the office of the canal auditor, at Albany, September 22, 1870.

The action was brought to redeem, from a mortgage held by the defendants’ testator, property in Rochester, known as “ Congress Hall,” and for an accounting of the rents and profits received therefrom.

<p>Complaint — allegation of cause of action ex conti'aatu—proof at trial must correspond with.</p> <p>The complaint in this action set forth a grant of an easement of using all the water flowing from a pond which might be necessary to propel a grist mill; covenants in respect thereto by the grantor, and breaches of such covenants on the part of the defendant, who had acquired the title of the grantor; and asked for a judgment for $1,000. At the trial plaintiS failed to prove that any covenants were made by his grantor, but was allowed to recover for a tortious interference by the defendant with his rights. Held, that the complaint set forth a cause of action ex contractu, and that a recovery for a tort could not be sustained. There was not a variance only, but an entire failure of proof. Conaughty v. Nichols (48 N. Y., 83) and Ledwich v. McKim (53 id., 307) distinguished.</p>

Monroe county, denying an application of the petitioner for a resettlement of the accounts of the defendants. The defendant Baker was, on the 27th of August, 1868, duly appointed executor of Henry Van Burén deceased, and acted as such executor until the 7th of October, 1868, when he was superseded, and letters of administration with the will annexed were issued to the defendants, Sarah A. Van Burén and George R. Sandford.

, of Eliza Stevens, deceased. Eliza E. Stevens, the wife of the appellant, received, for her interest in her father’s estate, two promissory notes, amounting to the sum of $4,019. The appellant was indebted to one Hamilton, and, with the consent of his wife, he transferred to said Hamilton the larger of said notes (the one for $3,919), as collateral security for the payment of said indebtedness. Mrs. Stevens died on the 30 th April, 1872, leaving three minor children.

<p> Trespass—who may maintain action of. </p> <p>In 1865, Davis and Comstock agreed to convey to one Tallent a saw-mill, together with the machinery therein; the contract providing, that tire grantors did not part with, nor was the grantee to acquire, any title or interest in the same, nor was the grantee to remove any of the machinery therefrom, until the whole purchase-money was paid. This action was brought by the plaintiff, who had acquired the title of D. & C., against the defendant for removing portions of the machinery. The defendant justified under a conveyance and license from Tallent. After the delivery of the agreement to Tallent, neither the plaintiff nor his grantors were in possession of the mill. Held, that the plaintiff was the legal owner of the property; that Tallent, having no interest therein, could not convey any to the defendant; that his entry was unlawful; and that he was a mere trespasser, against whom plaintiff might maintain an action.</p>

The action is brought to recover 100 acres of land in Spring-water, Livingston county. The only question involved in the case was the validity of the title to what is known as the Pulteney estate. The validity of this title has already been before the courts, in the cases of Duke of Cumberland v. Graves (7 ÍL Y., 305, and 9 Barb., 595), and of The People v. Snyder (411ST. Y., 397, and 51 Barb., 589), in which the facts relating to the title are fully set forth.

This action was brought against the defendant, for illegally causing the arrest and imprisonment of the plaintiff. The defendant was a justice of the peace, and issued a warrant for the arrest of the plaintiff, upon the justice’s own view of an affray, about twenty-four hours after it happened. The case was referred to a referee, who found that the arrest was lawful, and from the decision entered on such finding plaintiff appeals.

<p>Appeal from the decisions and proceedings of the Special Term, in proceedings by the New York Central and Hudson River Railroad Company, to acquire the lands of the relator, and from an order denying appellant’s motion for a writ of assistance.</p>

The action was brought upon a promissory note, signed by William Skeel, agent, and indorsed by the defendants above named. cited De Witt v. Walton (5 Seld., 571); Pumpelly v. Phelps (40 N. Y., 67); Story on Agency (§ 147); 2 Kent Com. (9 th ed.), 852; Townsend v. Hubbard (4 Hill, 351). It was proper to sue the note in name of the principal, and show by parol that the agent had authority, and did sign for her. (Edwards on Bills and Prom.

<p> Promissory note—indorser—contract of. </p> <p>In this action, brought by the plaintiff against the defendant, an indorser of a promissory note, made by Altenbrand Bros., the defense was, that, when the note was made, the makers were not partners, they having then been adjudged bankrupts, and also that it was made without consideration, in fraud of the bankrupt law. Selcl (1), that by his indorsement the defendant guaranteed the genuineness of the signature of the makers, and that they had power to bind themselves by their contract; (2), that in any event the defense was not available against the plaintiff, a bona, fide holder for a valuable consideration, without notice, who had acquired title to the note before its maturity.</p>

Motion by plaintiff for a new trial, on exceptions ordered to be heard in the first instance at General Term. This action was brought to recover for injuries sustained by plaintiff at a railroad crossing in the village of Dunkirk. At the close of the plaintiff’s evidence, the defendant moved for a nonsuit, which the court granted, on the-ground that it appeared from the evidence, that the plaintiff, by her own negligence, contributed to the injuries sustained by her.

The plaintiffs were partners, and were engaged in the business of buying cheese in Cattaraugus and Allegany counties, and shipping the same to New York.

The defendants demurred to the complaint, on the ground that several causes of action had been improperly joined therein, to wit: One for an admeasurement of dower; one for a partition of lands; and another to remove a cloud upon title. cited Dewey v. Ward (12 How., 419); Sweet v. Ingerson (id., 331) ; Hulce v. Thompson (9 id., 113); Maxwell v. Farnam (7 id., 236; 53 Barb., 238); Varick v. Smith (5 Paige, 137).

<p>Appeal from a judgment rendered at Special Term dismissing' the complaint with costs. The facts are stated in the following opinion of Lamont, J., delivered at Special Term.</p> <p>No presumption exists in favor of the regularity of the proceedings of public officers except such as is created by statute. (Jackson v. Shepard, 7 Cow., 88; Bunner v. Eastman, 50 Barb., 639; Varick v. Tallman, 2 id., 113; Striker v. Kelly, 2 Den., 323; Beeknan v. Bingham, 5 N. Y., 366.) Every preliminary, having even the semblance of benefit or protection to the property-holder, must be complied with. (Rea v. M’Eachron, 13 Wend., 465 ; Ford v. Walsworth, 15 id., 450; Jackson v. Esty, 7 id., 148; Bloom v. Burdick, 1 Hill, 141; Atkins v. Kinnan, 20 Wend., 241; Sharp v. Speir, 4 Hill, 76 ; id., 92 ; Adriance v. McCafferty, 2 Robt., 153; Westfall v. Preston, 49 N. Y., 349; Westbrook v. Willey, 47 id., 457 ; In re Douglass, 46 id., 42; Nat. Bank v. Elmira, 53 id., 49.) If the land is sold for an arrearage of taxes for several years, and the tax for any one is void, the entire sale is void. (Laws of 1855, chap. 427, §§ 33, 34, 44, 45, 50; Blackwell on Tax Titles, 280; Moulton v. Blaisdell, 24 Me., 283; Hayden v. Foster, 13 Pick., 492; Wallingford v. Fiske, 24 Me., 386; Elsworth v. Shaw, 1 Greenl., 335; Hardenburg v. Kidd, 10 Cal., 402.)</p>

This action was brought to obtain a judicial construction of the last will and testament of John A. Aldrich, deceased, and to compel the executrix, his widow, to give security for its due execution, in so far as the plaintiff’s rights were concerned. The plaintiff claims, as sole devisee and legatee under the will of his deceased wife, who was the daughter of the above named testator, and died August 21st, 1872: her father, said testator, having died the previous year.

<p>This is an appeal by the defendant from an order of the Special Term, refusing a new trial on the minutes of the court; and also from a judgment, entered on the verdict of a jury, for $4,000 damages, and $1,331.81' costs.</p> <p>The action was brought to recover damages for negligently killing Elizabeth M. Mitchell, on the 23d October, 1810, while crossing a public highway in the village of Greenbush. The deceased, who was the wife of the plaintiff, and aged about twenty years, was walking from the south toward the north, on the eastern sidewalk of Broadway, in the village of Greenbush. When they reach the next street which crosses Broadway, the tracks make a short curve toward the north-west, and then cross the street diagonally in that direction. At that place, the deceased, while crossing the cross-street on her way toward the north, after passing over two tracks, was struck by the engine, coming from the south, and instantly killed. There were seven freight box-cars standing still on the track, east of Broadway, and next to it, which line of cars extended north so far as to lap over across the sidewalk. These cars obstructed the view toward the east, to any person opposite them on the sidewalk. Six feet beyond the track on which the seven freight cars stood, was a second track; and further on, a third and diverging track, which, a little south of the crossing, gradually diverged, so that it was about twenty feet from the second track, at the place where the deceased was killed when crossing the third track.</p> <p>At this crossing there was a running switch ; and as the engine, with two baggage and three freight cars, moved toward the north, the cars were switched off to pass by on the second track, and the engine proceeded on the third track to and beyond the point where it struck the deceased. The deceased passed the end of the line of standing cars, crossed the second track, passed over the space of twenty feet between the second and third tracks, and, when crossing the third track, was struck by the engine and killed. Evidence was given tending to show that the bell was not rung, nor the whistle sounded; and there was also some proof as to the speed of the engine at the time of the injury. No proof of special damage was offered.</p> <p>At the close of the ease, the defendant’s counsel moved for a dismissal of the complaint, on the ground that from the proof it appeared that the negligence of the plaintiff’s intestate contributed to the injury complained of. The motion was denied, and an exception was duly entered.</p> <p>The defendant’s counsel requested the court to charge the jury, that the plaintiff, on the evidence, could recover only nominal damages ; also that there was no evidence upon which to base any calculation as to the pecuniary value of the life of the deceased. The court declined to charge as requested, and an exception was duly entered. Other exceptions were taken to portions of the charge, and to refusals to charge as requested, here unnecessary to be noticed.</p> <p>The j ury returned a verdict for the plaintiff, for §4,000. A motion was thereupon made for a new trial on the minutes of the court, which was denied; and from the order denying a new trial, and from the judgment entered on the verdict, appeal was taken to the General Term.</p>

<p>Policy of inswrwnce— Change of interest of insured—what constitutes.</p> <p>A policy of insurance provided that if the property insured should be sold or conveyed, or the interest of the parties therein changed, that it should he null and void. After the issuing of the policy, the owner contracted, under seal, to sell the property covered thereby to one S., who paid part of the purchase-price. In an action upon the policy, held, that such contract of sale and payment constituted a change of interest in the property insured, and rendered the policy void.</p>

<p>Sale under execution — right of creditor to redeem—when and, where redemption must iahe place.</p> <p>Where a judgment creditor attempts to redeem premises sold under a prior judgment, on or after the last day of the fifteen months allowed hy law for that purpose, such redemption, to he valid, must take place at the sheriff’s office of the county where the sale took place.</p>

The finding of the referee was, that plaintiff was a patent solicitor and expert; that in September, 1857, the defendant being the owner of a patent boring machine, entered into a… Held: that said agreement between defendant, Hobbie and Swan, was not such a sale, etc., as was contemplated by said contract between plaintiff and defendant, and that plaintiff had not therefore performed all the conditions of said contract, on his part, and directed judgment for the defendant.

By said will, in the second clause, all the rest of the testator’s property, real and personal, was given to his wife, Mary E. Alexander, absolutely. The will concludes as follows: “ Lastly, I hereby nominate and appoint my said wife the executrix of this my will, hereby revoking all former wills by me made, and request that such male friend as she may desire, shall be appointed with her as coexecutor.” The will was proved, and letters issued to the wife, June 27, 1873.

Appeal by the defendant from an order of the Special Term, sustaining a demurrer to part of defendant’s answer.

The action was brought to recover for a fraud perpetrated by the defendant upon these plaintiffs by inducing them to become sureties to an undertaking given upon an appeal to the Court of Appeals. The facts are stated in the opinión.

Cox, deceased, which was referred under the statute. For some years prior to March 4, 1871, the plaintiff’s assignors and the deceased were copartners, doing, business in the city of Troy, under the firm name of Cox, Church & Co. The facts are stated in the opinion.

The action was replevin, and brought to recover a gold watch and chain. The defendant plead general denial, and, in addition, that the question sought to be litigated in this action, had been once litigated and decided adversely to plaintiff, and that plaintiff' was estopped thereby.

<p>Charter of city of Albany—Street openings — costs of—retmation of—right of tax-payer to be heard upon.</p> <p>Title 7, section 1, of the charter of the city of Albany, relating to the opening of streets, provides that the costs, charges and expenses, incident to the proceedings, “ shall be taxed and certified as to the amount, by any judge of a court of record.” Held, that these words prescribed no rule of practice, and that the judge might proceed ex parte, or upon such notice to the tax-payers or others as he might deem proper.</p> <p>In pursuance of this provision, the costs and expenses attending the opening of Hudson avenue, were taxed by a justice of the Supreme Court, upon an expm'te application by the corporation counsel, and an order made requiring all persons interested to show cause, at a time and place therein specified, why the report of the commissioners should not be confirmed. At such time, Mr. Olcott, a tax-payer of the city, and largely affected by the order, appeared, and an order was made, denying confirmation of the report, and vacating the taxation of costs.</p> <p>Upon appeal by the corporation counsel and city surveyor from the order directing a retaxation of their costs; held (1), that the court, at a Special Term, had power to vacate the ex parte taxation of costs upon, convincing evidence that the bill, in some of its items, was illegal, and in others grossly excessive, and upon being satisfied that the officer, upon whose motion the taxation was made, represented himself instead of the city and its tax-payers; (2), that the court had the right, in its discretion, to hear the tax-payer when he asked for a retaxation of the costs, to the end that his undenied allegations of fraud and imposition might be considered.</p>

This case comes before the court upon the return of the defendants to a writ of certiorari, issued pursuant to an order of the Special Term, and upon a motion of the defendants to quash or supersede the writ. The following facts appear from the return and the exhibits thereto annexed. The relators are stockholders of the National Albany Exchange Bank, a banking association organized under the national banking act, and located in the sixth ward of the city of Albany.

The action was brought by the plaintiff, as assignee of the claim, to recover on a quantum meruit the value of certain coal sold and delivered by the Butler Colliery Company to the defendant, and money advanced during the month of August, 1869. The Butler Colliery Company and the defendant were corporations engaged in the business of mining and selling coal.

An appeal from an order made by Mr. Justice Barnard at Special Term, setting aside and vacating an order made by Mr. Justice Gilbert, upon the application of the respondents, dated the 19th day of December, 1872, in and by which last mentioned order the cause was revived and continued in the names of the said Elizabeth H. Griswold, as executrix, and Chester Griswold and John Wool Griswold, as executors of the last will and testament of John A. Griswold, deceased, who, in his…

The facts are stated in the opinion. Carroll being alive October 22, 1872, the presumption is that he was alive in May, 1873. (O'Gara v. Eisenlohr, 38 N. Y., 296.) Hearsay evidence of death only allowed when no living witness can testify to the fact. (Fosgate v. Herkimer, 12 Barb., 352.) The probate proceedings were not evidence of the death of Carroll.

The complaint alleged: 1. That defendant married Susannah Butler, April 23d, 1839. 2. His separation from her May 31st, 1843, and emigration to thé United States. 3. His marriage with Caroline Barton at New York, October 21, 1843, and their living together. 4. A suit by him (October, 1863) to annul this second marriage, on tbe ground that the first wife was alive. 5.

The referee found that the defendant was, from the 27th day of January, 1872, until the 20th day of August, 1872, a trustee of the Star Publishing Company, a corporation organized pursuant to an act of the legislature, entitled “An act to authorize the formation of corporations for manufacturing, mining, mechanical and chemical purposes,” passed February 17, 1848, and the acts amending and extending the same.

The action was brought to recover for work done, in removing material from the water space of the reservoir in Poughkeepsie.

.Appeal by the defendant from an order denying defendant’s motion for a new trial on the judge’s minutes, and from the judgment entered in the action in favor of the plaintiff. The facts are stated in the opinion.

<p>Oode, § 449 — determination of claims to real property—When action for, commenced—what must be proved in.</p> <p>An action for the determination of claims to real property, is to be deemed commenced, for the purpose of operating as constructive notice to purchasers from the defendant, from the time of the filing of the notice; but, as against a resident defendant, it is commenced when the summons is personally served, or delivered to an officer with the intent that it shall be actually served.</p> <p>Where, upon the trial of such an action, it appears that the plaintiff was neither the owner, nor in possession of the premises in question, at the time of the commencement of the action, the complaint should be dismissed, with costs.</p>

This action was commenced by summons and complaint, for the. determination of an alleged claim or claims by the defendant to an estate for a term of years in certain real estate, in the .city of Brooklyn, alleged to be owned by, and in the actual occupation of, the plaintiff.

The plaintiff took a lease of certain basement rooms, in the city of New York, from the defendants, and occupied them as a place for selling stationery and toys. Shortly after the plaintiff went into possession of the rooms, the defendants caused to he constructed, in the cellar of the building, a heating apparatus, which generated so much heat as to greatly injure the plaintiff’s stock of stationery and toys.

<p>Appeal from an order made at Special Term, vacating the report and assessment of commissioners, assessing property for the expense of Prospect Park, so far as they related to property “ not within the territorial limits of Brooklyn.” The appeal was taken by the city of Brooklyn and the commissioners of Prospect Park.</p>

On the 1st. day of November, 1870, the plaintiff and defendant entered into an agreement for the sale of certain stock, in pursuanee of which, the plaintiff delivered to the defendant the following agreement: Williamsbttbgh, November 1st, 1870. I do hereby agree to deliver to Henry Hamilton, of Brooklyn, E. D., 500 shares, as follows: Certificate Ho. 160, for.......................... 100 shares.

Cebtioeaei to review a judgment recovered in a Justices’ Court against the relator, for a penalty. The facts are stated in the opinion.

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a j my, and from an order denying a motion for a new trial, made upon the judge’s minutes.</p> <p>This action is brought by the plaintiff, as the owner and occupier of a tract of land and house thereon in Suffolk county, to recover damages to the premises and property of plaintiff from an overflow of water thereon, occasioned by an embankment constructed upon the land of the defendant. The plaintiff and defendant are adjoining owners, the land of defendant being used for a railroad track, which is crossed by a highway, also adjoining the plaintiff’s land. Prior to the construction of defendant’s railroad, during the winter season, large quantities of water flowed from some distance above the plaintiff’s premises, along and parallel with the highway, and passed plaintiff’s premises without collecting there. Defendant’s railroad was constructed at this point in 1869 and 1870, and where it adjoins plaintiff’s land, an embankment was raised, upon which the track was laid, which embankment formed an angle with the highway, which, at certain seasons of the year, prevented the water from flowing off plaintiff’s land, and caused it to collect thereon. The complaint alleges that defendant was negligent and unskillful in constructing the railroad embankment and raising the highway, and should have provided pipes or other suitable means to . carry off’ surplus water which might at any time accumulate between the embankment and raised highway; and that, by reason of this negligent and unskillful construction, large quantities of water accumulated between the said railroad embankment and raised highway, on, and overflowed plaintiff’s land, and ran into his house on the days named, and caused the damage complained of.</p> <p>The answer avers that the railroad at the place is properly and skillfully constructed with reference to the nature of the ground, etc.; and that there is no obstruction, by the said railroad or highway crossing, of any natural stream of water; and that the water alleged to be obstructed, was not any other than surface water, at and after extremely wet and rainy weather, and during winter and spring freshets. The defendant moved for a nonsuit, on the ground that plaintiff had failed to prove the obstruction of a natural stream of water, and that defendant was not required to have a passage for surface water through its lands. The court denied the motion, and defendant excepted. After the charge of the court, to which various exceptions were taken, a verdict was found for plaintiff.</p> <p>cited, as to the right of the defendant to construct the embankment, Goodale v. Tuttle (29 N. Y., 466); Waffle v. N. Y. C. R. R. Co. (58 Barb., 413); Luther v. Winnisimmet Co. (9 Cush., 171); Ashley v. Wolcott (11 id., 192).</p>

The action was brought to recover ‘$10,611.54, an alleged balance of account due to plaintiff, who was a banker,, from- the defendants, factors and dealers in grain,, residing in the city of New York.

<p>Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The action was brought to recover the amount alleged to be due on a sealed note.</p>

<p>Appeal from an order made at Special Term, allowing the plaintiff to serve a supplemental complaint in this action.</p>

This action was brought to compel the defendant to remove a barn from a street designated on a map of lands belonging to him, and along which the plaintiffs own lands, purchased from him.

This action is brought by a judgment creditor of J. Augustus Page, to set aside conveyances of certain lands, in Brooklyn, made by him to one Allen and by Allen to Mary E. Page, wife of J. A. Page, as fraudulent as against the plaintiff.

This action was brought to recover the value of certain shares of stock belonging to the plaintiff, which had been deposited with the defendants by the plaintiff’s brother, William 0. Porter, as security for advances made to him. The case has already been before the Court of Appeals, and is reported in 49 New York, at page 564. The facts upon which the decision of the General Term was based, appear in the opinion.

This action was brought upon a policy of insurance issued by the defendant, to. recover the value of a house destroyed by fire. The application, which was prepared by an agent of the company and signed by the plaintiff, contained, among others, the following question, viz.: “ Occupation. For what purpose is the building used, and how many tenants are there % ” To which the answer was, “ Dwelling.” The policy contained the following condition: “ 11.

This action was brought to recover the value of certain property, unlawfully taken from- the possession of the plaintiff by the defendant. The property was taken by the defendant, a United States mar- ■ shal, under a warrant issued from the bankruptcy court, directing Mm to take possession of all the estate, real and personal, of one George Merkle, against whom a petition in bankruptcy had been filed January 24, 1871. This action was commenced February 27, 1871.

<p>Appeal from an order denying a motion to vacate a judgment entered in the County Court of Kings county, on the ground that the complaint did not allege that all the defendants resided in said county.</p>

<p>Appeal from, a judgment in favor of the plaintiff, entered upon the verdict of a jury.</p>

<p>Appeal from an order made at Special Term, referring the cause to a referee to hear and determine.</p>